289 Grange Road Developments Pty Ltd v Dalle Projects Pty Ltd

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2017 01308

IN THE MATTER of 289 Grange Road Developments Pty Ltd (ACN 604 659 047)

289 GRANGE ROAD DEVELOPMENTS PTY LTD (ACN 604 659 047)  Plaintiff
v  
DALLE PROJECTS PTY LTD (ACN 147 573 948) Defendant

- AND -

S CI 2017 01310

IN THE MATTER of 11 Mitchells Lane Developments Pty Ltd (ACN 604 931 919)

11 MITCHELLS LANE DEVELOPMENTS PTY LTD (ACN 604 931 919) Plaintiff
v  
DALLE PROJECTS PTY LTD (ACN 147 573 948) Defendant

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JUDGE:

RANDALL AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

30 May 2017

DATE OF JUDGMENT:

17 July 2017

CASE MAY BE CITED AS:

289 Grange Road Developments Pty Ltd & Anor v Dalle Projects Pty Ltd

MEDIUM NEUTRAL CITATION:

[2017] VSC 409

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CORPORATIONS – Corporations Act 2001 (Cth) – Statutory demand – Application pursuant to s 459G to set aside statutory demand – Building contracts – Payment claim – Payment certificate – Debt due and payable for the purposes of the statutory demand – Relevance of the Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether debt was required to be due and payable for the periods set out in s 459F or whether sufficient that due and payable at the date of service of statutory demand.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr B P Devanny Hall Partners Solicitors
For the Defendant Dr M Wolff M&K Lawyers Group Pty Ltd

TABLE OF CONTENTS

The application................................................................................................................................... 1

The statutory demand in the 289 Grange Road Developments Pty Ltd proceeding............ 1

The statutory demand in the 11 Mitchells Lane Development Pty Ltd proceeding............. 1

Issues.................................................................................................................................................... 2

Grange Road.................................................................................................................................. 2

Mitchells Lane............................................................................................................................... 2

Background......................................................................................................................................... 3

The contract.................................................................................................................................... 6

Mitchells Lane............................................................................................................................. 13

Grange Road................................................................................................................................ 17

In S CI 2017 01308: Grange Road............................................................................................... 24

In S CI 2017 01310: Mitchells Lane............................................................................................ 24

HIS HONOUR:

The application

  1. Each of these applications is pursuant to s 459G of the Corporations Act 2001 (Cth) (‘Corporations Act’) to set aside separate statutory demands, each dated 15 March 2017.  It is convenient to deliver the one judgment as the issues and factual background are similar, save for notable differences to which I will draw attention. Further, although each plaintiff is a different company, it is accepted by the parties that each plaintiff was incorporated for distinct projects. I will refer to each plaintiff collectively or individually in these reasons as ‘the plaintiff’.

The statutory demand in the 289 Grange Road Developments Pty Ltd proceeding

  1. The schedule to the statutory demand sets out the description of the debt and amount of debts as follows:

Payment claim certificate 1 dated 24/10/16

$111,593.02

Less amount paid

$80,000.00

Total for payment claim certificate 2:

$31,593.02

Payment claim certificate 2 dated 30/11/16

$61,380.99

Payment claim certificate 3 dated 10/12/16

$65,573.65

Interest accrued to 1/02/17

$11,423.47

Total debts:

$169,971.13

The statutory demand in the 11 Mitchells Lane Development Pty Ltd proceeding

  1. The…

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Details
Case
[2017] VSC 409
Decision Date

CaseChat Overview and Summary

289 Grange Road Developments Pty Ltd sought to recover a debt from Dalle Projects Pty Ltd, the latter having issued a statutory demand under the Corporations Act 2001 (Cth). Dalle Projects resisted the claim and applied to set aside the statutory demand under s 459G of the Act. The dispute centred on whether the debt claimed was "due and payable" for the purposes of the statutory demand and the applicability of the Building and Construction Industry Security of Payment Act 2002 (Vic) to the debt.

The court was required to determine if the debt claimed by 289 Grange Road Developments was due and payable for the periods specified in s 459F of the Corporations Act, or if it was sufficient that the debt was due and payable at the time the statutory demand was served. Additionally, the court needed to assess the interaction between the statutory demand process and the mechanisms provided by the Building and Construction Industry Security of Payment Act, particularly in the context of building contracts and payment claims.

The court found that the statutory demand was valid and enforceable. It held that the debt was required to be due and payable for the periods specified in s 459F of the Corporations Act, not merely at the date of the statutory demand. The court reasoned that the statutory demand process and the Security of Payment Act served different purposes and did not preclude one another. The statutory demand was valid because the debt was due and payable at the relevant time, notwithstanding any payment claim or payment certificate issued under the Security of Payment Act.

The court dismissed Dalle Projects' application to set aside the statutory demand. The court ordered Dalle Projects to pay the amount claimed by 289 Grange Road Developments, together with interest and costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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