In the matter of A.C.E.S Sogutlu Holdings Pty Ltd A.C.N. 122 192 509

[2014] NSWSC 240

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of A.C.E.S. Sogutlu Holdings Pty Ltd A.C.N. 122 192 509 [2014] NSWSC 240
Hearing dates:	26 February 2014
Decision date:	26 February 2014
Jurisdiction:	Equity Division - Corporations List
Before:	Brereton J
Decision:	The Court declines to make an order under subsection 459F(2)(a)(i) specifying a time other than the period of seven days from the date of disposal of the application. Order that the plaintiff to pay the defendant's costs of today.
Catchwords:	CORPORATIONS - winding up - winding up in insolvency - where order sought extending time for compliance with statutory demand for a period of 21 days - where order purportedly sought to enable company to pay the debt claimed - where no evidence of that contention - extension refused
Legislation Cited:	(Cth) Corporations Act 2001, s 459G, s 459F
Cases Cited:	Golden Plantation Pty Limited v TQM Design & Construct Pty Limited [2010] NSWSC 1279
Category:	Consequential orders
Parties:	A.C.E.S. Sogutlu Holdings Pty Ltd A.C.N. 122 192 509 (first plaintiff) Ceyser Pty Ltd A.C.N. 082 916 078 (second plaintiff) Commonwealth Bank of Australia A.C.N. 123 123 124 (defendant)
Representation:	Counsel: J Charara (in person) (plaintiffs) D Villa (defendant) Solicitors: Gadens Lawyers (defendant)
File Number(s):	2013/337734

Judgment - EX TEMPORE

1. HIS HONOUR: Yesterday I dismissed with costs the plaintiff's application under (Cth) Corporations Act 2001, s 459G, for an order setting aside a creditor's statutory demand that had been served on it by the defendants. In so doing, I assumed without deciding that the application had been validly made for the purposes of s 459G.

1. This assumption involved two elements: first, that the proceedings had been validly instituted by the plaintiff, notwithstanding that the originating process was signed by a person as authorised officer, and not by a solicitor; and secondly, because by the originating process two companies sought an order setting aside a statutory demand served on them.

1. As to the latter point, there is authority of another judge of this Court which suggests that an application in that form does not validly invoke s 459G. I avoided determining this issue by assuming it in favour of the plaintiffs, given that the application failed on another basis. However, to my mind, notwithstanding the decision of Barrett J in Golden Plantation Pty Limited v TQM Design & Construct Pty Limited [2010] NSWSC 1279 and the cases referred to in it, it is very difficult to see why the originating process in this proceeding does not involve or include an application by each company to the Court for an order setting a statutory demand served on that company within the meaning of s 459G. Time does not permit, at this stage, an exhaustive analysis of the authorities and the statute to resolve the question with finality, but for present purposes, I am content to proceed on the basis that the application was validly made.

1. The consequence of the dismissal of the application was that pursuant to section 459F(2)(a)(ii) the period for compliance with the demand was extended until seven days after the application was finally determined or disposed of, which is what occurred yesterday. Accordingly, the period for compliance was extended until seven days from yesterday, which would expire on 4 March 2014. No order extending time was sought under section 459F(2)(a)(i) at that time.

1. Today, Mr Charara seeks an order extending time for compliance for a period of 21 days. I do not think that the Court's ability to make such an order is extinguished by the fact that the substantive proceedings have been dismissed, and on an interlocutory process the Court would still be able to make such an order as the time has not yet expired. It would still be able to do so at any time up to and including next Tuesday.

1. Mr Charara says that the purpose of the extension, at least at this stage, is to enable the company to pay the debt claimed. The difficulty with that is that there is absolutely no evidence in support of that contention. It may well be that, were there some evidence that the company would be able to, or at least would have reasonable prospects of, satisfying the demand within that period, the court might be persuaded to extend time, for not more than 21 days. But in the absence of any evidence, I do not think that I can do so.

1. Accordingly, I decline to make an order under subsection 459F(2)(a)(i) specifying a time other than the period of seven days from the date of disposal of the application. I order that the plaintiff pay the defendant's costs of today.

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