Tesoro mb pty ltd v total building group pty ltd 2009 fca 802. On a day to be named by proclamation of the lieutenant governor, section 2 of the act is repealed and the following substituted. Application of acts interpretation act 1901 part 1. This demand is called a creditors statutory demand and is issued using form 509h. A statutory demand can be set aside if it is defective in a formal sense. If the company does not comply with the demand, then under section 459c 2a of the corporations act 2001 the company is deemed insolvent. Commercial equity seminar 26 april 2016 practice and procedure in the corporations list. This is a compilation of the corporations act 2001 as in force on 19 july 20. Commercial equity seminar 26 april 2016 practice and. Section 459k of the corporations act provides that a statutory demand has no effect while there is in force an order under s 459h or s 459j. An act to make provision in relation to corporations and financial products and services, and for other purposes. On september 2019 i delivered my reasons for making an order that the respondents statutory demand be set aside under s 459h of the corporations act 2001 cth.
Opposing applications to wind up a company in insolvency by sam chizik, member of the victorian bar 1. Care and diligencedirectors and other officers 1 a director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they. Corporations act 2001 sect 459s company may not oppose application on certain grounds 1 in so far as an application for a company to be wound up in insolvency relies on a failure by the company to comply with a statutory demand, the company may not, without the leave of the court, oppose the application on a ground. The insolvent company is then at risk of the court appointing a liquidator to commence winding up procedures. This paper is about how a company, which has failed to set aside a statutory demand, can. Setting aside a statutory demand complete guide stonegate legal. Corporations act 2001 sect 180 care and diligence civil obligation only. Determination of application where there is a dispute or offsetting claim. Opposing applications to wind up a company in insolvency.
Section 459h5 of the corporations act defines offsetting claim to mean. Corporations act 2001 sect 180 care and diligencecivil. Corporations act 2001 sect 459a order that insolvent. The policy underlying s 459h is that the statutory demand procedure should not be used to coerce a person to pay a disputed. Corporations act 2001 sect 459s company may not oppose. Commercial law association judges seminars june 20. Corporations act 2001 federal register of legislation. Treasury laws amendment 2017 enterprise incentives no.