Brisbane Fleet Sales Pty Ltd (ACN 078 286 478), Re [2000] QSC 196

, ~ 0390... l.\!E·-'1tOF r ?>loo/ 111£ State Reporting Bureau - TRANSCRIPT OF PROCEEDiNGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No S3002 of 2000 IN THE MATTER OF THE CORPORATIONS LAW IN THE MATTER OF BRISBANE FLEET SALES PTY LTD ACN 078 286 478 BRISBANE .. DATE 12/04/2000 JUDGMENT 1 REVISED COPft=._5 ISSUED State Reporting Bureau r· ,,-,/,.,,. D2te :f I '.) / i: ' i·;,,,,,·, Tire: l.:rw C11111·t.,, Cc·111-;..:c· Strc:,:!, llri_.,J,:111,:, (). -llllll) Td.:pl1t111c·: fll7) 32-l7 ..i.,r,1) F:11: {07) .,2..:, 5~32 -- 1 of 4 -- 12042000 T2/RB28 M/T 7501/2000 (Mackenzie J) HIS HONOUR: This is an application to set aside a notice of statutory demand. The only issue is whether the proceedings to set aside the notice of statutory demand are in all of the circumstances appropriate. The brief chronology of the matter was that the statutory demand and supporting affidavit were served on 15 March. On 17 March an enforcement warrant requiring redirection of the debt to Comm~alth Development Bank of Australia was served and on 29 March a copy of the enforcement warrant was sent to the respondent's solicitors requesting withdrawal of the statutory demand. Then on 29 March there was a letter from the respondent's solicitors admitting that payment to the enforcement creditor would satisfy the statutory demand and indicating that the respondent would not rely on the statutory demand provided payment was made within the period for compliance under section 459F of the Corporations Law. The payment was in fact made on 31 March and on 3 April a letter was sent to the respondent's solicitors attaching a copy of the draft application to set aside the notice of statutory demand and IO 20 JO 40 requesting withdrawal of the statutory demand. When the demand 50 was not withdrawn the present application was brought. 60 2 JUDGMENT -- 2 of 4 -- 12042000 T2/RB28 M/T 7501/2000 (Mackenzie J) The reason for bringing the application advanced to me was that the applicant company is a trading company and it was concerned to get certainty about its position. And it was for that reason that it applied to have the demand set aside. It was suggested that there was some ambiguity in the letter of 29 March 2000, but the terms of the letter seem to me to be sufficiently clear to indicate that the notice of demand could not be relied on subsequent to the writing of that letter and the satisfaction of the ~ition concerning payment of the debt. In those circumstances it is necessary then to look at what the Corporations Law says. Section 459F(l) says that if at the end of the period for compliance with the statutory demand the demand is still in effect and the company has not complied with it, the company has taken to fail to comply with the demand at the end of that period. And the presumption under section 459C(2) concerning insolvency if the company has failed to comply with the statutory demand comes into effect and, as is well known, the onus then shifts to the company to prove solvency. In my view, in the circumstances of this particular case, at the end of the period for compliance with the statutory demand the company had complied with it and in those circumstances it would 10 20 30 40 not enliven the presumption in section 459C(2). The letter of 29 50 March 2000 removed from contention any suggestion that the notice of demand was one that had not been complied with. 60 3 JUDGMENT -- 3 of 4 -- 12042000 T2/RB28 M/T 7501/2000 (Mackenzie J) In the circumstances it seems to me that the company, while one can understand its desire to ensure that no complications arose in that effect, was not really obliged to bring the application nor is it one which, in my view, needed to be brought since its position was adequately protected. In the circumstances it seems to me that what I must do is dismiss the application and it seems to me that it follows that costs on the ~dard basis should be paid by the applicant to the respondent. 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 4 --