In the matter of Fugace Pty Limited [2019] NSWSC 1203

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Fugace Pty Limited [2019] NSWSC 1203 Hearing dates: 9 September 2019 Date of orders: 09 September 2019 Decision date: 09 September 2019 Jurisdiction: Equity - Corporations List Before: Rees J Decision: 1. Order pursuant to section 459H(1)(a) of the Corporations Act 2001 (Cth) that the statutory demand issued by S Cartwright & Sons (Coachbuilders) Ltd dated 3 May 2019 be set aside. 2. Order the defendant to pay the plaintiff's costs of the proceedings. Catchwords: CORPORATIONS — Statutory demand — Application to set aside — Whether application properly served —"effective informal service" — Where address for service was that of defendant's solicitors — defendant's solicitors thus authorised by the company — Post, DX, facsimile and telephone provided but not email — Plaintiff asked by email whether service by email would be accepted — defendant's solicitors responded that email service not accepted — Plaintiff purported to serve by email at 4.04 pm that day — No response — No evidence of non-receipt — Reasonable inference that city solicitors received email during business hours in 'time critical' matter Legislation Cited: Corporations Act 2001 (Cth), ss 459E, 459G, 459H Corporations Regulations 2001 (Cth) reg. 1.0.03; Sch 1, Sch 2 Uniform Civil Procedure Rules 2005 (NSW), r 3.7 Cases Cited: Austar Finance Pty Ltd v Campbell (2007) 215 FLR 464; [2007] NSWSC Autumn Solar Installations Pty Ltd v Solar Magic Australia Pty Ltd [2010] NSWSC 463 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43 Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 70 FCR 452; (1996) 21 ACSR 581 Greenmint Pty Ltd v O'Keeffe (2015) 301 FLR 165; [2015] VSC 326 In the matter of Boss Constructions (NSW) Pty Ltd [2019] NSWSC 543 Sheraz Pty Ltd v Rumsley (2019) 37 ACLC ¶19-018; [2019] FCA 493 Woodgate v Garard Pty Ltd (2010) 78 ACSR 468; [2010] NSWSC 508 Category: Principal judgment Parties: Fugace Pty Limited (Plaintiff) S Cartwright & Sons (Coachbuilders) Ltd (Defendant) Representation: Counsel: Mr S O'Brien (Plaintiff) Mr MA Karam (Defendant)