Friday, August 26, 2011

Setting aside statutory demand for 'some other reason' under Corporations Act

The court in Sebastian Builders and Developers Pty Ltd v Floruit Holdings Pty Ltd & Currency Corp Pty Ltd [2011] NSWSC 655 is useful for its references to recent judicial commentary on key issues relating to s459J(1)(b) such as when the court may choose to exercise its discretion to set aside a statutory demand for 'some other reason' and the factors relevant to establishing an abuse of process.
The court referred to the following:
  • For an application under s459J(1)(b) to succeed, the court must be convinced there is 'some other reason' to set the statutory demand aside.
  • When considering whether to set aside a statutory demand for 'some other reason' the court should be "satisfied that there is an appeal based on reasonable and arguable grounds which, if successful, would result in the existence of an offsetting claim": Eumina Investments Pty Ltd v Westpac Banking Corporation (1998) 84 FCR 454.
  • When faced with a challenge to a statutory demand on the basis of an alleged abuse of process, attention should be paid to the objectives properly pursued by service of a statutory demand. A creditor serving a statutory demand aims, first and foremost, to obtain payment of the creditor's debt. The creditor may have a second or subsidiary purpose, which is to obtain the benefit of a presumption of insolvency if the primary purpose of eliciting payment is not achieved and no successful application to have the demand set aside is made. But the principal purpose is to obtain payment. See TS Recoveries Pty Ltd v Sea-Slip Marinas Australia) Pty Ltd [2007] NSWSC 1074.

 

0 comments:

Post a Comment