All Type Developments Pty Ltd v Hickey - [2009] QSC 224

SUPREME COURT OF QUEENSLAND

CITATION:

All Type Developments Pty Ltd v Hickey [2009] QSC 224

PARTIES:

ALL TYPE DEVELOPMENTS PTY LTD ACN 121 286 708
(applicant)
v
ROSS HICKEY
(respondent)

FILE NO:

BS 2045 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

11 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2009

JUDGE:

White J

ORDER:

Set aside the statutory demand dated 2 February 2009

CATCHWORDS:

CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – APPLICATION TO SET ASIDE DEMAND – GENUINE DISPUTE AS TO INDEBTEDNESS – OFFSETTING AND OTHER LIKE CLAIMS – GENERALLY – where the applicant entered into a building contract with the respondent builder – where the respondent served a payment claim on the applicant and subsequently obtained an adjudication decision for payment of the claim – where the adjudication decision amount was registered as a judgment debt and partially satisfied – where the respondent served a creditor’s statutory demand on the applicant for the unsatisfied judgment debt amount – where the applicant applies to set aside the statutory demand on the basis that it has an offsetting claim – whether the statutory demand should be set aside pursuant to s 459H of the Corporations Act 2001 (Cth)

Building and Construction Industry Payments Act 2004 (Qld), s 17, s 18, s 19, s 21, s 24, s 31, s 100
Corporations Act 2001 (Cth), s 459G, s459H

BBB Constructions Pty Ltd v Frankipile Australia Pty Ltd [2008] NSWSC 982, applied
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport &

Anor (2004) 61 NSWLR 421, cited
Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553, cited
Edge Technology Pty Ltd v Lite-On Technology Corporation (2000) 34 ACSR 301, cited
Peekhrst Pty Ltd v Wallace & Anor [2007] QSC 159, cited

Roadtek, Department of Main Roads v Philip Davenport and

Ors [2006] QSC 047, cited

COUNSEL:

Ms N Martin for the applicant
Mr JH Sive for the respondent

SOLICITORS:

Harris Sushames Lawyers for the applicant
Direct access brief for the respondent

All Type Developments Pty Ltd (“All Type”) has applied to set aside a
creditor’s statutory demand dated 2 February 2009 pursuant to s 459G of the Corporations Act 2001 (Cth) on the ground that it has an offsetting claim.

The statutory demand is based on a judgment entered in the Magistrates Court at Beaudesert pursuant to an adjudication certificate registered under s 31(1) of the Building and Construction Industry Payments Act 2004 (Qld) (“the BCIP Act”) on 19 December 2008. The amount registered as a judgment debt was $45,815.23. Enforcement orders returned $37,981.15 to the judgment creditor leaving $7,834.08 outstanding and in respect of which the statutory demand was made.

All Type contends that it has an offsetting claim such that the amount outstanding is below the statutory threshold and the statutory demand ought therefore to be set aside. The respondent contends that the claim is…

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.

Continue reading All Type Developments Pty Ltd v Hickey

Details

AGLC: All Type Developments Pty Ltd v Hickey [2009] QSC 224
Case: [2009] QSC 224
Decision Date: 11 August 2009

CaseChat Overview and Summary

All Type Developments Pty Ltd (Applicant) filed an application to set aside a statutory demand served by Hickey (Respondent). The dispute arose from a building contract where Hickey served a payment claim, which was followed by an adjudication decision for payment. The decision was registered as a judgment debt and partially satisfied. Hickey then served a statutory demand for the remaining debt. The Applicant sought to set aside the statutory demand, arguing it had an offsetting claim.

The court had to determine if the Applicant's offsetting claim was genuine and whether it was enough to set aside the statutory demand. This involved assessing the validity of the offsetting claim against the statutory demand and examining if the Applicant's debt was genuine and not a pretext to avoid liquidation. The court needed to balance the rights of creditors and debtors, and ensure the statutory demand process was not abused.

The court found that the Applicant's offsetting claim was genuine and sufficient to set aside the statutory demand. The court held that the offsetting claim was not a mere pretext to delay or frustrate the statutory demand process. The Applicant's claim was based on substantial grounds and was not frivolous or vexatious. The court concluded that the statutory demand should be set aside to prevent an unfair advantage to the creditor and to ensure fair dealing in commercial transactions.

The court set aside the statutory demand dated 2 February 2009, allowing the Applicant to contest the debt on the merits. The decision underscored the importance of a fair and balanced approach in statutory demand proceedings, ensuring that genuine disputes are not overlooked.

Orders

Orders of the court

Set aside the statutory demand dated 2 February 2009

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	All Type Developments Pty Ltd v Hickey [2009] QSC 224
PARTIES:	ALL TYPE DEVELOPMENTS PTY LTD ACN 121 286 708 (applicant) v ROSS HICKEY (respondent)
FILE NO:	BS 2045 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	11 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2009
JUDGE:	White J
ORDER:	Set aside the statutory demand dated 2 February 2009
CATCHWORDS:	CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – APPLICATION TO SET ASIDE DEMAND – GENUINE DISPUTE AS TO INDEBTEDNESS – OFFSETTING AND OTHER LIKE CLAIMS – GENERALLY – where the applicant entered into a building contract with the respondent builder – where the respondent served a payment claim on the applicant and subsequently obtained an adjudication decision for payment of the claim – where the adjudication decision amount was registered as a judgment debt and partially satisfied – where the respondent served a creditor’s statutory demand on the applicant for the unsatisfied judgment debt amount – where the applicant applies to set aside the statutory demand on the basis that it has an offsetting claim – whether the statutory demand should be set aside pursuant to s 459H of the Corporations Act 2001 (Cth) Building and Construction Industry Payments Act 2004 (Qld), s 17, s 18, s 19, s 21, s 24, s 31, s 100 Corporations Act 2001 (Cth), s 459G, s459H BBB Constructions Pty Ltd v Frankipile Australia Pty Ltd [2008] NSWSC 982, applied Brodyn Pty Ltd t/as Time Cost and Quality v Davenport & Anor (2004) 61 NSWLR 421, cited Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553, cited Edge Technology Pty Ltd v Lite-On Technology Corporation (2000) 34 ACSR 301, cited Peekhrst Pty Ltd v Wallace & Anor [2007] QSC 159, cited Roadtek, Department of Main Roads v Philip Davenport and Ors [2006] QSC 047, cited
COUNSEL:	Ms N Martin for the applicant Mr JH Sive for the respondent
SOLICITORS:	Harris Sushames Lawyers for the applicant Direct access brief for the respondent