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Indigo Financial Money Pty Limited v Moustrides & Anor [2010] SASC 355

by Martha.Ware 19. January 2011 11:55

Facts

This was an appeal from the decision of a Master in relation to whether or not a company may apply for the setting aside of two or more statutory demands by way of a single originating process under s 459G of the Corporations Act 2001 (Cth). At first instance it was held that the originating process was defective.

 

The debts upon which the demands were grounded were unrelated and incurred at different times.

 

The Master relied upon the judgment of Young J in Help Desk Institute Pty Ltd v Adams: 

  • Comparison of the wording of s 459G with ss 459E and F led to the view that s 459G goes out of its way to differentiate between a single debt and two or more debts.
  • Section 459G defines the jurisdiction of the court by imposing a time requirement as an essential condition of the right to make the application.
  • If s 459G contemplated two or more demands, the section would have dealt with the time periods within which the application could be brought if they were not all served on the same date.
  • There is a likelihood that dealing with more than one statutory demand would bring into evidence extraneous matters that would frustrate the summary manner of dealing with such applications causing them to be bogged down.
  • However, it is noted at [17] that the judgment of Young J did not turn on these factors. Rather, the applicant had failed to file evidence complying with the requirements in s 459G(3).

Subsequent decisions relying upon Helpdesk emphasised the frustration of quickly dealing with such disputes: [20].

 

Examples were also given of judgments in which multiple demands were allowed to be made with a single originating process: [23-28]. White J specifically preferred the approach of Barrett J in Remo Constructions noting that he too was unable to see a general rule in the wording of s 459G that an originating process could only deal with one demand: [32-3].

 

White J noted the statement by Gummow J in David Grant  that it is inappropriate to limit legislation giving jurisdiction to the court where the limits are not expressly set out [36-7] and noted that it is conceivable that the universal application of Helpdesk could cause significant additional costs, and that the regime is intended to not be overly technical: [38].

 

White J noted that the courts have significant powers to curtail the potential problems set out in Helpdesk in any event: [45].

 

Outcome

The Master’s decision was, accordingly, overturned as a matter of law.

 

Relevant paragraphs of Ford

[3.331], [4.056], [7.586], [13.110], [19.490], [27.060], [27.062], [27.063], [27.064], [27.065], [27.066], [27.067], [27.068], [27.091], [27.101], [27.111]

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Ford's Principles of Corporations Law



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