NCFS Properties P/L v Hawkins

This is an application to set aside a creditor’s statutory demand for payment bearing date 15 March 2000, pursuant to s459G of the Corporations Law .

The Defendant sought in effect a knock-out blow to that application based on the decision in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 13 ACLC 1572. The premise for that attack is that the twenty-one day period had expired between the date that the statutory demand was served, treating that as 16 March 2000 when it was served outside of office hours at 8.15 am, and the date the Plaintiff served the Defendant with the summons and affidavit as required by s459G at 4.40 pm on 6 April 2000.

The fundamental problem with that attack is that the operation of s105 of the Corporations Law provides for a method of counting which makes clear that excepting these dates as correct the application was made within twenty-one days after the demand was served as required by s459G(2) of the Corporations Law which of course is mandatory.

The application to set aside the statutory demand relies also upon the statutory demand being by the Defendant who is an individual, namely Mr David Charles Hawkins, rather than the company to which any indebtedness would be owing were the Defendant successful in establishing that the “Termination Agreement” was entered into by the Plaintiff in terms of Annexure B to the affidavit of Mr Hawkins of 10 April 2000.

Again, the Plaintiff must be successful in that though clause (1) of that Termination Agreement provides for the payment of $35,000, clearly from the opening four lines the claimed indebtedness is to the corporate entity apparently owned by Mr Hawkins called NewsMedia NewsAgency Pty Limited, though the method of payment which follows provides for two separate amounts to be paid having benefit to Mr David Hawkins. At the least, there is a plausible contention requiring further investigation that the statutory demand is issued not by the claimed creditor but by someone viz Mr Hawkins, who lacks privity of contract to enforce any such indebtedness and who could not rely upon any claim qua beneficiary of the alleged indebtedness.

Finally, it is clear that the Plaintiff has a plausible contention requiring further investigation that it never signed the Termination Agreement though certain Email correspondence may suggest that the Plaintiff may have encouraged the Defendant into thinking that the indebtedness would be paid which the Defendant claims exists. Certainly, no signed copy of the Termination Agreement was produced by the Defendant and the Plaintiff simply denies executing it.

In any final proceeding no doubt other matters will arise but for present purposes I simply conclude that the Plaintiff succeeds in its summons to set aside the Defendant’s statutory demand. ORDERS 1. Orders in terms of paragraph 1 of the Plaintiff’s Summons of 6 April 2000. 2. The costs of the Plaintiff shall be paid by the Defendant.