Global Cement (North Qld) P/L v Benchmark Debtor Finance P/L ; ARMC Concrete Products Pty Ltd v Benchmark Debtor Finance P/L

[2007] QSC 143

Supreme Court of Queensland

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Interrogate

Catchwords

1. Corporations
2. › Winding up in insolvency
3. › Statutory demand
4. › Compliance with s 459E
5. › Defect in accompanying affidavit
6. › Wrong debtor company named in affidavit
7. › Whether irregularity or fundamental non-compliance
8. › Corporations Act 2001 (Cth), ss 9, 459E, 459J
1. Corporations
2. › Winding up in insolvency
3. › Statutory demand
4. › Failure to set aside within time
5. › Whether court may grant declaratory or injunctive relief outside s 459G regime
6. › Abuse of process
7. › Corporations Act 2001 (Cth), ss 459G, 459S
1. Practice and Procedure
2. › Abuse of process
3. › Restraining winding up proceedings
4. › Whether reliance on defective statutory demand constitutes abuse of process
5. › Inherent jurisdiction of court

Quick Take

An error in the accompanying affidavit to a statutory demand that names the wrong debtor company is an irregularity within s 9 of the Corporations Act 2001 (Cth), not a fundamental non-compliance rendering the demand a nullity, where the demand itself correctly identifies the debtor and the debt. A company that fails to bring a valid application to set aside a statutory demand within the 21-day period cannot circumvent the statutory regime by seeking declaratory relief that the demand is invalid, absent clear evidence of abuse of process.