Re Bendigo Central Pharmacy Pty Ltd [2017] VSC 419 (21 July 2017): setting aside statutory demand, Graywinter affidavit, genuine dispute

July 26, 2017

The Supreme Court, per Randall AsJ, considered an application to set aside a statutory demand in Re Bendigo Central Pharmacy Pty Ltd [2017] VSC 419. The key issue was whether issues ultimately relied upon were raised in the Plaintiff’s initial affidavit, filed within 21 days of the statutory demand being served and the scope and operation of Graywinter affidavits.

FACTS

The debt relied upon in the statutory demand Read the rest of this entry »

Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) [2017] VSCA 182 (7 July 2017): power to make a substitution order, exercise of discretion, Rule 9.09 of the Civil Procedure Rules

July 23, 2017

The Victorian Court of Appeal in Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) [2017] VSCA 182 considered the scope and operation of Rules to permit a substitution order being made.

FACTS

The third applicant, Sandra Cerrato, was the executrix of the deceased estate of her father, Rocco Cerrato who . Mr Cerrato died on 14 August 2014 [1]. Prior to and in  2010 Mr Cerrato was a director of the first applicant, Culve Engineering Pty Ltd (‘Culve Engineering’), the second applicant, Tena Denham Nominees Pty Ltd (‘Tena Denham’), and the first respondent, Apollo General Engineering (Aust) Pty Ltd (in liquidation) (‘Apollo’) [2]. Ms Cerrato was joined as a defendant to this proceeding in her capacity as executrix in substitution for her father by an order made by an associate judge on 18 September 2015. She and the other applicants unsuccessfully appealed that decision to a judge in the Trial Division [3].

Prior to 21 April 2010 Apollo carried on Read the rest of this entry »

Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275 (24 May 2017): section 459G of the Corporations Act 2001, application to set aside a statutory demand, genuine dispute

June 5, 2017

In Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275  the Victorian Supreme Court, per Gardiner AsJ, dismissed an application to set aside a staututory demand on the basis that there was no genuine dispute.

FACTS

Medusa claimed Read the rest of this entry »

Peter Exton & Anor v Extons Pty Ltd & Ors [2017] VSC 14 (10 February 2017): Oppressio and deadlincok sections 233 and 461(1)(k) and 467(4) of the Corporations Act 2001)

February 14, 2017

The Supreme Court, per Sifris  J, heard an application under sections 233 and 461(1)(k) of the Corporations Act 2001 in  Peter Exton & Anor v Extons Pty Ltd & Ors [2017] VSC 14.

FACTS

Many oppression proceedings in the Corporations List involve family run companies.  Exton v Extons Pty Ltd is not unusual in this regard.  The First Plaintiff,  Peter, and the Sixth Defendant, Ian, are brothers. They each hold, either directly or indirectly, 50% of the shares in each of the companies that made up the Extons group. They are also directors of those companies [1].

The Extons group was commenced by Peter and Ian’s father and uncle in the 1950s, when it was started . It engages in earthworks, excavating and contracting in New South Wales and Victoria and occasionally sells machines including machines that it holds for the purposes of its contracting work [2].

Peter started Read the rest of this entry »

Gucce Holdings Pty Ltd v Bank of Queensland Limited [2017] FCA 12 (19 January 2017): application to set aside staututory demand, section 459G Corporations Act

February 5, 2017

In Gucce Holdings Pty Ltd v Bank of Queensland Limited [2017] FCA 12  the Federal Court considered whether a sale for undervalue, or at least a claim as such, was a basis for an offsetting claim (and what is required) as well as whether a special leave application was sufficient to set aside a statutory demand.

FACTS

Gucce Holdings Pty Ltd (ACN 099 191 714) filed an application, [1], with an  affidavit of  Tina Michelle Bazzo, director of Gucce,[2], on 29 December 2015 pursuant to s 459G of the Corporations Act 2001to set aside a statutory demand made by the Bank of Queensland Limited.

Bazzo stated that Read the rest of this entry »

Cato Brand Partners Pty Ltd v Air India Limited [2016] VSC 28 (5 February 2016) : statutory demand, Corporations Act Part 5.7

February 9, 2016

The Supreme Court, per Efthim As J, considered an application to set aside a statutory demand in Cato Brand Partners Pty Ltd v Air India Limited [2016] VSC 28.  The issue was bringing an application against a foreign corporate body and the application of foreign law in determining the applicable statute of limitations.

FACTS

In December 2009 the plaintiff’s chairman, Kenneth Willis Cato, travelled to India in December 2009 and February, April and June 2010 for meetings with representatives of the defendant.  An agreement was entered into on 2 June 2010 [3].

The plaintiff claims it was owed Read the rest of this entry »

Locker Group Pty Ltd v HEA Australia Pty Ltd [2015] VSC 752 (18 December 2015): Section 459P Corporations Act, section 29 Civil Procedure Act 2010, duty of disclosure and consequences of failure

January 24, 2016

In Locker Group Pty Ltd v HEA Australia Pty Ltd [2015] VSC 752 the Victorian Supreme Court, per Randall AsJ, considered the authorities relating to the obligations to provide full disclosure, the failure to disclose a material fact and the consequences of not complying with an order in the service of an application resulting in late service. The Court made orders under the Civil Procedure Act relating to the very unfortunate conduct of Locker Group. The court also considered the scope of the power under the Civil Procedure Act in making costs orders encompassing costs incurred by liquidators.

FACTS

On 16 April 2014  Australia Pressure Vessel Heads (2011) Pty Ltd, the Plaintiff, filed an originating process seeking to wind up HEA Australia Pty Ltd (‘the Company’) under s 459P of the Corporations Act 2001 (Cth) (‘Corporations Act’)[2]. On 14 May 2014 the plaintiff’s counsel appeared. There was no appearance for the Company. There were negotiations the result of which was that payment was expected within seven days. A further hearing was adjourned to 21 May 2014 [3]. At that time the plaintiff’s counsel again appeared, advised that the plaintiff had been paid out and sought to be excused. Counsel for Locker Group Pty Ltd, a supporting creditor (‘Locker Group’), appeared and advised the Court that it wished to be substituted as plaintiff. At that time the Company had not filed a notice of appearance under r 2.9  of the Supreme Court (Corporations) Rules 2013 and s 465C of the Corporations Act [4]. Read the rest of this entry »

Report on Cyber Resilience, highlights the need for proper cyber security, this time from ASIC

April 6, 2015

As if it were necessary to say that data security was a matter of proper corporate governance the Australian Security and Investment Commission (“ASIC”) has made that abundantly clear with its Report 429 Cyber Resilience: Health Check.  As far as ASIC is concerned it has a role to ensure that companies maintain proper cyber security standards. This is a very important development because Read the rest of this entry »

Corporations Legislation Amendment (Deregulatory and Other Measures Bill 2014 passes the House of Representatives

November 28, 2014

For those solicitors and barristers practising in Corporations and insolvency law it is worth noting the passage of the Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014 through the House of Representatives yesterday. While anything can happen in the Senate it is hardly a contentious piece of legislation. Its passage is assured.

The Bill, as the summary on the Parliamentary Business page on the bill states, will:

provide that a general meeting of a company must only be arranged if members with at least five per cent of voting shares make the request; reduce the remuneration reporting requirements; clarify the circumstances in which a financial year may be determined to be less than 12 months; and exempt certain companies limited by guarantee from the need to appoint or retain an auditor; and Australian Securities and Investments Commission Act 2001 to: enable members of the Takeovers Panel to perform duties while in Australia and overseas; and provide that the Remuneration Tribunal is responsible for setting the terms and conditions of Chairs and members of the Financial Reporting Council, the Australian Accounting Standards Board and the Auditing and Assurance Standards Board

The effect of the BIll include Read the rest of this entry »

The High Court to hand down judgment in Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers Appointed) (In Liquidation)

December 2, 2013

The High Court will hand down its decision in Willmott Growers Group Inc v. Willmott Forests Ltd (Receivers and Managers Appointed) (In Liquidation) In its capacity as manager of the unregistered managed investment schemes listed in Schedule 2 and Ors this Wednesday 5 December 2013.

For those, like myself, who practice in the corporations and insolvency area it is a long awaited decision with significant ramifications.

The High Court transcript provides:

MR G.T. BIGMORE, QC: May it please the Court, I appear Read the rest of this entry »