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[2013] NSWSC 2039
Supreme Court of NSW
2013-12-23
Brereton J
Original judgment source is linked above.
Judgment - EX TEMPORE 1HIS HONOUR: On 11 July 2013 the defendant JNAB Pty Ltd served on the plaintiff company Morf Dynamics Pty Ltd a creditor's statutory demand for payment of debt pursuant to (Cth) Corporations Act 2001, s 459E, demanding payment of the amount of $146,750.68, being the total amount of loan and interest described in the schedule to the demand as follows: Loan repayment due pursuant to Loan Facility Agreement dated 16 January 2008 between the company and the creditor $100,000.00 Interest on the Principal sum of $100,000 at 8.64% per annum from February 2008 to 8 July 2013 $46,750.68 Total debt payable by Morf Dynamics Pty Ltd $146,750.68
2By originating process filed on 31 July 2013, Morf seeks an order pursuant to s 459G and s 459H setting aside the demand. In the s 459G affidavit filed in support of the application, Chin Meng Fong deposed, after setting out his claimed authority to make the affidavit and annexing searches of Morf and of JNAB, as follows: 5 On or about 16 January, 2008, the Plaintiff entered into a Loan Facility Agreement (the "Agreement") with the Defendant. Annexed and marked "C" is a copy of the Agreement. 3I observe that the second sentence of paragraph 5 was ultimately not read by the plaintiff, but was tendered by the defendant and received as an admission against interest. Mr Fong proceeded to depose as follows: 6 The Agreement provided that the Defendant lend the Plaintiff $100,000 ("the Loan"). 7 The loan is not repayable until the completion of the Plaintiff's "series A Funding". 8 At the time of swearing this affidavit, the Plaintiff has been unable to secure funding facilities and complete its "series A Funding". The loan from the Defendant is not presently due and payable by the Plaintiff under the terms of the Agreement. 9 On 26 June, 2013 I received an email from the Defendant's solicitors regarding the repayment of the loan. Annexed and marked "D" is a copy of this email. 10 On 26 June, 2013 I sent an email to the Defendant's solicitors, asking that the Defendant contact me to discuss repayment of the loan. Annexed and marked "E" is a copy of this email. 11 On 28 June, 2013, I received an email from the Defendant's solicitors, Annexed and marked "F" is a copy of this email. 12 On 11 July, 2013, the Plaintiff was served with a creditor's statutory demand for payment of a debt ("Statutory Demand"). Annexed and marked "G" is a copy of the Statutory Demand. 13 On 17 July, 2013, the Plaintiff's solicitors wrote to the Defendant's solicitors indicating that the purported debt subject to the Statutory Demand was disputed, and requesting that the Statutory Demand be withdrawn. Annexed and marked "H" is a copy of that letter. 4The letter of 17 July 2013 referred to in paragraph 13 of the affidavit was relevantly in the following terms: We act for Morf Dynamics Pty Limited (Morf) and we understand that you act for JNAB Pty Limited (JNAB). On 11 July, 2013, Morf was served with a creditors' statutory demand signed by Billy Nan Choong Chong and dated 16 January, 2008 (the Demand). We are instructed as follows:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2014
Lodge Partners Pty Ltd
Pegum
(2009) 255 ALR 516