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AR Pilot Pty Ltd v Gouriotis

AR Pilot Pty Ltd v Gouriotis

Case [2007] NSWSC 396 19 April 2007

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CITATION: A R Pilot Pty Ltd v Gouriotis [2007] NSWSC 396

HEARING DATE(S): 19/04/07

JUDGMENT DATE :
19 April 2007

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 19 April 2007

DECISION: Statutory demands set aside

CATCHWORDS: CORPORATIONS - winding up - statutory demands - application for order setting aside statutory demand relating to debt which is acknowledged but said not to be due and payable until a future date - application for order setting aside statutory demand containing conflicting statements as to amount demanded

LEGISLATION CITED: Corporations Act 2001 (Cth), Part 5.4, ss.9, 459E, 459G, 459H(1)(a), 459J(1)(a), 459J(2),

CASES CITED: Meehan v Glazier Holdings Pty Ltd (2005) 53 ACSR 229
Spencer Constructions Pty Ltd v D & M Aldridge Pty Ltd (1997) 76 FCR 452
Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226

PARTIES: A R Pilot Pty Limited - Plaintiff
Andrew Gouriotis

FILE NUMBER(S): SC 6240/06

COUNSEL: Mr E.A. White - Plaintiff
Mr M.R. Gracie - Defendant

SOLICITORS: Benjafield & Associates - Plaintiff
A.R. Walmsley & Co - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

THURSDAY 19 APRIL 2007

6240/06 A R PILOT PTY LIMITED v ANDREW GOURIOTIS

JUDGMENT ON APPLICATION TO SET ASIDE STATUTORY DEMANDS

1 The plaintiff applies under s.459G of the Corporations Act 2001 (Cth) for two substantive orders. They are an order setting aside a statutory demand dated 17 November 2006 in respect of an alleged debt of $108,522, and an order setting aside a separate statutory demand of the same date, in respect of an alleged debt which, according to the body of the demand, is in the sum of $6,486.29, but is described in the demand’s schedule as being in the sum of $8,646.29. Both demands were served on the plaintiff by the defendant on 21 November 2006.

2 The first demand, that is, the demand related to the sum of $108,522, describes the debt in its schedule, which refers to “Loan payable at call on 26 October 2004: $105,522; Loan payable at call in June 2005: $3,000; Total payable $108,522”.

3 The affidavit accompanying that demand was sworn by the defendant on 17 November 2006. The defendant there said:

“I am the creditor in respect of a debt of $108,522 owed by A R Pilot Pty Limited to myself relating to loans payable at call pursuant to an agreement between us dated 18 October 2004”.

4 A combination of the schedule to the demand and the quoted passage in the accompanying affidavit indicates the position of the defendant to be that a loan agreement had been concluded on 18 October 2004, that advances were made on 26 October 2004 and in June 2005 such that the total advance was $108,522 and that the loans were made on an at call basis.

5 This statutory demand is challenged by the plaintiff on the basis that there exists a genuine dispute as to…

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 AR Pilot Pty Ltd v Gouriotis

Details

AGLC: A R Pilot Pty Ltd v Gouriotis [2007] NSWSC 396
Case: [2007] NSWSC 396
Decision Date: 19 April 2007

CaseChat Overview and Summary

AR Pilot Pty Ltd brought an application against Gouriotis regarding a statutory demand that had been issued against AR Pilot. The demand was for a debt acknowledged by AR Pilot but which it was asserted was not due and payable until a future date. The application sought to set aside the statutory demand on the basis that it contained conflicting statements as to the amount demanded. The matter was heard in the Supreme Court of Queensland.

The court was required to determine whether the statutory demand was valid and enforceable, particularly in light of the conflicting statements regarding the amount demanded. Additionally, the court had to consider whether the debt was truly not due and payable until a future date and if the demand could be set aside despite the acknowledgment of the debt. The court's decision hinged on the interpretation of the relevant statutory provisions and the principles governing statutory demands.

The court found that the conflicting statements in the statutory demand regarding the amount demanded rendered the demand invalid. It held that such discrepancies made it impossible to determine the precise amount claimed, thereby violating the requirements of the statutory framework. Consequently, the court set aside the statutory demand. The court further observed that even though the debt was acknowledged, if it was not due and payable until a future date, this did not affect the invalidity of the demand due to the conflicting statements.

The court ordered that the statutory demand issued by Gouriotis against AR Pilot be set aside. The decision underscored the importance of precision in statutory demands and highlighted that any ambiguity or discrepancy can result in the demand being unenforceable.

Orders