McElligott v Boyce & Ors

[2011] QCA 117

Queensland Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Winding up
3. › Winding up in insolvency
4. › Statutory demand
5. › Application to set aside demand
6. › Defect in statutory demand
7. › Absence of prescribed warning statement
8. › Whether defect caused substantial injustice
9. › Corporations Act 2001 (Cth), s 459J(2)
1. Appeal
2. › Extension of time to appeal
3. › Factors relevant to grant of extension
4. › Length of and explanation for delay
5. › Prospects of success on appeal
6. › Whether proposed grounds offer reasonable prospect of success
1. Appeal
2. › New arguments on appeal
3. › Whether party bound by conduct of case at first instance
4. › Whether new argument may be raised for first time on appeal
5. › Exceptional circumstances

Quick Take

The absence of the prescribed warning statement from a statutory demand under the Corporations Act 2001 (Cth) is a defect that does not require the demand to be set aside where no substantial injustice is shown, particularly where the debt is clearly owed and the company has no assets. A party who fails to raise a defect in a statutory demand at first instance will generally be precluded from raising it on appeal.