Air Sydney 2000 Pty Ltd, Re [2000] QSC 437

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 WHITE J No 75 of 2000 IN THE MATTER OF THE CORPORATIONS LAW and IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 459G OF THE CORPORATIONS LAW BY AIR SYDNEY 2000 PTY LIMITED (ACN 062 180 992) BRISBANE .. DATE 01/02/2000 JUDGMENT 1 REVISED COPfES l~UED State Reporting Bureau Date 611 c)-J &--0 I It 1"1,11,r, Tl1c l.:nv Courts, CenrJ.:L' Str,:,:t, Brislo:1111:, (). -lllllll Tclo:nlt1111L·: (07) 32-l7 -l3(,ll F:1':: lll7l J2-l7 .5532 -- 1 of 4 -- 01022000 Tl/JAP22 M/T 6822/2000 (White J) HER HONOUR: This is an application to set aside a statutory demand pursuant to section 459G of the Corporations Law. It is out of time and conceded to be out of time and in the circumstances the applicant does not seek to resile from the position that the obligation as to time is absolute and the 10 decision of Grant (1995) 184 CLR 265, makes that clear. However, the applicant contends that there is such a fundamental defect in the statutory demand that the Court ought to make a declaration to that effect. Mr Schulte who appears on behalf of the applicant is unable to point to any provision in the Corporations Law which would empower this Court to make a declaration of that kind at this time. Not surprisingly the reason for this application made instanter is to save costs and all the other sundry down sides of an application to wind up in light of the fact that the statutory demand has not been met. I would decline l 20 :o 30 simply on the ground alone that it is premature to make the ~u 40 declaration. However, in view of the submissions that have been made I should say something about the defect. The applicant contends that the failure to provide an address for service of material by the respondent/creditor within the State of Queensland as required in item 6 of form 509H is a fundamental defect so as to make it not a statutory demand. 2 JUDGMENT 10 50 ~n 60 -- 2 of 4 -- 01022000 Tl/JAP22 M/T 6822/2000 (White J) Mr Schulte relies on the decision of Mr Justice Ambrose of Beralt Pty Ltd v Joe Battaglia Plastering Proprietary Limited 1999 QSC 202 a decision of 3 September 1999. His Honour, in that decision approved the comments of Senior Master Mahony in Scanlan v Dome Supplies Proprietary Limited 10 1995, 17 ACSR 662 at 665. However, Mr Lilley who appears on behalf of the creditor has referred to the decision of Mr Justice MacKenzie in Re Ad-A-Cab Holdings Pty Ltd 1997 2 Queensland Reports 115 where His Honour refers to the decision in Scanlan. It appears that this decision was not referred to Mr Justice Ambrose in Beralt. At page 117 of that decision (a case which also concerned the failure to provide an address for service within the State of Queensland) his Honour commented that "Notwithstanding the decisions in Scanlan where the recent trend of authority has been in the direction of holding that where what is relied on is a 'defect' relief !~ 30 can only be given if 'substantial injustice' will be caused 20 40 unless the demand is set aside." His Honour referred to numerous cases where that principle has been approved. His Honour went on to say that in that case there was no suggestion that substantial injustice would be caused by the failure to specify an address for service in Queensland. That must be the case here. There was immediate contact by the applicant with the creditor and continuing communication was had· between them. The applicant sought an extension of time within which to bring this application but, it seems, 3 JUDGMENT .,' ~ ', 50 60 -- 3 of 4 -- 01022000 Tl/JAP22 M/T 6822/2000 (White J) misunderstood the response by the creditors' solicitors when what they gave, in fact, was an extension of time for compliance with the statutory demand not an extension of time. That can be seen from reading the letter from those solicitors dated 24 December 1999 which is exhibited to Mr McLinden's affidavit filed by the applicant. There does not appear then to me to be any substantial injustice caused to the applicant by the failure to include in item 6 an address in Queensland. What was included was a solicitor's address in New South Wales. In the circumstances I decline to make the declaration sought and I dismiss the application and unless there are any submissions to the contrary it should be with costs. HER HONOUR: On the question of costs it has been advanced 10 l 20 30 as a reason why there ought to be no order as to costs is _nj 40 that there was some conduct on the part of the solicitors for the creditor which mislead in some way the applicant into thinking that it was entitled to an extension of time or that an extension of time would not be opposed. It was not for the creditor to extend time and as I have indicated :~ 50 it seems to me that no extension of time was actually given. There is no good reason why costs should not follow the event. 60 4 JUDGMENT -- 4 of 4 --