Alem v Brandup - [2007] NSWSC 897

CITATION: Alem v Brandup [2007] NSWSC 897

HEARING DATE(S): 11/07/07

JUDGMENT DATE :
23 August 2007

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

DECISION: Paragraph 26

CATCHWORDS: Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. Found no genuine dispute. Proceedings dismissed and no matter of principle.

PARTIES: Alem Pty Limited v Brandup Business Solutions Pty Limited

FILE NUMBER(S): SC 1540 of 2007

COUNSEL: Mr F Assef for plaintiff
Mr JJ Young for defendant

SOLICITORS: Harris Freidman Hyde Page for plaintiff
Edwin Davey Commercial & Litigation Lawyers for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 23 August 2007

1540/07 Alem Pty Ltd v Brandup Business Solutions Pty Ltd

JUDGMENT

1 His Honour: This is an application by the plaintiff under section 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand dated 29 January 2007 served by the defendant on the plaintiff claiming that an amount of $281,206.97 is due and payable by the plaintiff.

2 The plaintiff submits that there is a genuine dispute that there is no debt due and owing in order to support the demand and there are defects in the demand which should lead to the demand being set aside. As is apparent from the description of the debt in the statutory demand the matter concerns building works carried out on a property situated at 61/67 O’Riordan, Alexandria. That property was owned by the trustee of the L & H Weinstock Family Trust.

3 Originally, a company Marelex Pty Ltd was the trustee of that trust. On 15 June 2001 the plaintiff became the trustee of the trust. Alem Pty Ltd is the owner and landlord of the property referred to above. The works which were carried out by the defendant builder were an upgrade of the premises part of the costs of which were borne by the lessee with part to be borne by the landlord.

4 Works were carried out during 2005 and also during a period from March through to June 2006. During this period a Mr Amiram Weinstock was the sole director of the plaintiff company and responsible for organising the appropriate building works with the defendant. On 25 August 2006, he resigned as a director and his sister Tamar Rivqa Beck was appointed sole director of the plaintiff company.

5 Because of the falling out between Amiram Weinstock and Tamar Beck, there was no continuity in respect of the building works and the builder has been waiting patiently for some time to be paid what it claims is the outstanding money due to it some of which is now included in the demand which is sought to be set aside.

Genuine Dispute

6 The genuine dispute which is alleged by the plaintiff is the identity of the contracting party on the proprietor’s side. The plaintiff submits that there is no evidence to establish that a contract for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 897
Decision Date: 23 August 2007

CaseChat Overview and Summary

The applicant, Alem, filed an application to set aside a statutory demand issued by Brandup under section 459G of the Corporations Act. Brandup had issued the demand based on a debt claimed to be owed by Alem. The Federal Court was tasked with determining whether there was a genuine dispute as to the existence or amount of the debt. This decision involved interpreting the relevant statutory provisions and assessing the evidence provided by both parties.

The primary legal issue before the court was whether Alem had demonstrated a genuine dispute concerning the existence or amount of the debt claimed by Brandup. This required a consideration of the evidence presented and an evaluation of whether the statutory demand was validly issued. The court had to determine whether Alem had provided sufficient grounds to justify setting aside the demand, considering the burden of proof and the standard of evidence required.

The court found that Alem had not provided adequate evidence to establish a genuine dispute concerning the existence or amount of the debt. The evidence presented did not meet the standard required to set aside the statutory demand. Consequently, the court dismissed the application and held that there was no matter of principle warranting an appeal. The court emphasised the importance of demonstrating a genuine dispute to successfully challenge a statutory demand.

The court's final order was that the application to set aside the statutory demand was dismissed, with no costs awarded. The court found no matter of principle that would warrant an appeal, thereby concluding the proceedings.

Orders