B&W Windows v Coshott Voits v Coshott - [2008] NSWSC 49

CITATION: B&W Windows v Coshott Voits v Coshott [2008] NSWSC 49

HEARING DATE(S): 04/02/08

JUDGMENT DATE :
11 February 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

DECISION: Paragraph 22

CATCHWORDS: Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. No affidavit verifying demand. Whether judgment was a judgment debt. Held it was and demand set aside for failure to have affidavit verifying demand.

PARTIES: B&W Windows Pty Limited v Robert Gilbert Coshott
Voits Holdings Pty Limited v Robert Gilbert Coshott

FILE NUMBER(S): SC 4180/2007; 4311/2007

COUNSEL: Mr RA Parsons for B&W Windows
Mr AJ O'Brien for Voits Holdings

SOLICITORS: Norbert Lipton & Co for B&W Windows
Heckenberg Associates for Voits Holdings

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Monday 11 February 2008

4180 of 2007 B & W WINDOWS PTY LIMITED v ROBERT GILBERT COSHOTT
4311 of 2007 VOITS HOLDINGS PTY LIMITED v ROBERT GILBERT COSHOTT

JUDGMENT

1 HIS HONOUR: This is the hearing of two proceedings which I have heard together. I have not ordered that the evidence in one proceeding be evidence in the other but as they concern similar facts and circumstances they were heard at the same time.

2 I will first deal with the proceedings of 4180 of 2007 B & W Windows Pty Limited v Coshott.

3 The proceedings are proceedings to set aside a statutory demand served by the defendant on the plaintiff company. The demand was dated 7 August 2007 but it was not signed. The description of the debt was “Order of Federal Magistrate Court made 21 June 2007”. The amount of the debt as described in the schedule was “$9,939.50”.

4 The plaintiff company is a company which was incorporated on 2 January 2007 and whose Australian Company Number is 123 250 224. Prior to the incorporation of this company Mr Robert Coshott had had dealings and litigation with another company that was previously called B&W Windows Pty Limited. That company had an Australian Company Number of 003 048 477. It changed its name to Voits Holdings Pty Limited on 6 February 2007. In respect of this older company there were District Court proceedings in which Mr Coshott commenced proceedings against them and a Mr Voit on 20 November 2006. He sued in respect of the failure to deliver some doors and windows and made a claim of some $38,000.

5 Before getting into the areas of confusion that arose by reason of the two companies it is useful to note that there was a deed for the sale of business dated 1 February 2007 in which the old company therein referred to as Voits Holdings Pty Limited agreed to sell to a new company certain business assets. The new company therein described as B&W Windows Pty Limited. The agreement contained the usual clauses for the transfer of those business assets and for the business itself to pass to the new company.…

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: [2008] NSWSC 49
Decision Date: 11 February 2008

CaseChat Overview and Summary

The case of B&W Windows v Coshott Voits v Coshott involved a dispute where a statutory demand was issued under section 459G of the Corporations Act, and the respondent sought to have the demand set aside. The respondent argued that the demand was invalid because it was not accompanied by an affidavit verifying the claim, as required by the legislation. The court was tasked with determining whether the absence of the affidavit rendered the demand invalid and, if so, whether the statutory demand should be set aside.

The central legal issue before the court was whether the statutory demand was validly issued and, if not, what the consequences of such invalidity were. Specifically, the court had to consider whether the absence of an affidavit verifying the demand was a fatal defect that rendered the demand invalid. The court also needed to determine if the judgment resulting from the statutory demand could be considered a judgment debt, which would have implications for the setting aside of the demand.

In delivering its judgment, the court held that the statutory demand was indeed invalid due to the absence of the required affidavit. The court emphasised that the legislation explicitly mandates an affidavit to verify the claim, and this requirement was not met in this case. Consequently, the court ruled that the demand was invalid and set it aside. The court also found that the judgment obtained from the statutory demand could be regarded as a judgment debt, which supported the decision to set aside the demand.

The court's final orders were to set aside the statutory demand issued by B&W Windows against Coshott Voits v Coshott for failure to comply with the requirement of providing an affidavit verifying the demand. This decision underscored the importance of adhering to statutory requirements when issuing statutory demands under the Corporations Act.

Orders