[20] Here, no injustice was occasioned by the defect, substantial or otherwise, and I do not see that any injustice will be caused to the plaintiff if the demand is not set aside."
11 Upon its proposed appeal, the plaintiff will again contend that "substantial injustice" within s 459J(1)(a) is not confined to injustice to the company on which the demand has been served. It will be argued that there is a wider concept of injustice at work - to the effect that, if the warning note is absent and the offending statutory demand served on the particular company is not set aside, then every company in existence will face a situation in which it could be exposed to winding up proceedings without having been given the essential warning. Furthermore, the argument runs, it will be cold comfort to the universe of companies that the defect by omission might, in a particular case, become the subject of an application for leave under s 459S since the defect, of itself, could never be material to proving solvency so that s 459S(2) could never be satisfied and, therefore, an order granting leave under s 459S(1) could never be made.
12 An appeal advanced on this basis would, in my opinion, enjoy no prospects of success. The purpose of the warning note is obvious. It exists in order to instil in the particular company receiving the particular statutory demand a sense of urgency so that that company acts, if it acts at all, within the statutory time limit. If an application is duly made under
s 459G, the particular recipient company has, by definition, acted within the statutory time limit and avoided the dangers to which the warning note is directed; so that it is immaterial whether or not it was actually given the warning.
13 If the concept of injustice for which the plaintiff intends to argue were accepted, the result would be that every demand which omitted the warning note was ipso facto liable to be set aside. The wider concept of injustice to the universe of companies postulated by the plaintiff's submission would always operate regardless of the circumstances of the particular case based, as it is, on the susceptibility of that universe of companies to become subject to a presumption of insolvency at some point because of non-compliance with a defective demand.
14 It simply cannot be accepted that the regulation requiring the inclusion of the warning note was intended to operate in that way. Had there been an intention that a particular form of defect in a statutory demand should, of its very nature and regardless of surrounding circumstances, always be within s 459J(1)(a) and unquestionably cause, as it were, automatic injustice in every case regardless of circumstances, the law would have been changed to say, quite simply, that a statutory demand not carrying the warning note was void.
15 It is clear from the decided cases and, in my view, from the Act itself, that the question of substantial injustice posed by s 459J(1)(a) is to be addressed by reference to the circumstances of the particular case. The injustice that must be considered is any injustice that arises in the totality of the circumstances of the particular case. Submissions to the effect that injustice will be occasioned to the universe of companies in every case because of a defect in a statutory demand served on one particular company do not withstand scrutiny.
16 In addition, I consider that White J has demonstrated in paragraphs [16] to [20] of his judgment that the particular form of defect might, in certain circumstances, found an application under s 459S. The example his Honour gives in paragraph [18] deals sufficiently with the s 459S(2) point.
17 Where, as in this case, an application under s 459G is duly made, the situation is one in which the adverse contingency to which the warning note is directed simply has not eventuated. No one has been prejudiced by the absence of the note. That absence has produced no relevant injustice.
18 In summary, therefore, I am of the opinion that the proposed ground of appeal is unarguable and that the prospects of success on appeal or at the anterior stage, upon an application for leave to appeal, are zero. That being so, there is no need to consider the other questions arising upon an application such as this, namely, whether the appeal will be rendered nugatory unless an extension of time is granted and the question of the balance of hardship.
19 The plaintiff's interlocutory process styled "notice of motion" filed on 7 August 2009 seeking an extension of time under s 459F(2)(a)(i) is dismissed.