Bridges and Towers Pty Ltd v Surucic - [2009] NSWSC 1180

CITATION: Bridges and Towers Pty Ltd v Surucic [2009] NSWSC 1180

HEARING DATE(S): 03/11/09

JUDGMENT DATE :
3 November 2009

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 3 November 2009

DECISION: Statutory demand set aside. Order that defendant pay plaintiff's costs assessed on the indemnity basis.

CATCHWORDS: CORPORATIONS - winding up - winding up in insolvency - application for order setting aside statutory demand - whether genuine dispute as to existence of debt - no matter of principle - whether "some other reason" within s 459J(1)(b) - where s 459E(3) affidavit made by person other than issuer of demand - where authority of that person not shown - where deponent does not identify source of knowledge of matters stated in demand

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 459E(3), 459G, 459H(1)(a), 459J(1)(b)
Supreme Court (Corporation) Rules 1999, rule 5.2
Uniform Civil Procedure Rules 2005, rule 7.24

CATEGORY: Principal judgment

CASES CITED: B & M Quality Constructions Pty Ltd v Buyrite Steel Supplies Pty Ltd (1994) 15 ACSR 433
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Oshlack v Richmond River Council (1998) HCA 11; (1998) 193 CLR 72
Standard Commodities Pty Ltd v Societe Socinter Department Centragel [2005] NSWSC 294; (2005) 54 ACSR 489

PARTIES: Bridges and Towers Pty Ltd - Plaintiff
Daniel Surucic - Defendant

FILE NUMBER(S): SC 3729/09

COUNSEL: Mr A A Narayan - Plaintiff
Mr G Vok - Defendant

SOLICITORS: Heidtman & Co Lawyers - Plaintiff
Mr G Vok - Defendant

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

BARRETT J

TUESDAY 3 NOVEMBER 2009

3729/09 BRIDGES AND TOWERS PTY LTD v DANIEL SURUCIC

JUDGMENT

1 The plaintiff applies under s 459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand dated 27 June, 2009.

2 The person by whom the statutory demand was served and who is named in it as "the creditor" is Daniel Surucic. He is, of course, the present defendant.

3 The statutory demand relates to an alleged debt of $6,050.00 said to be the balance of moneys owing by the plaintiff to Daniel Surucic for work done, being painting work at the Cypress Lakes Resort.

4 The plaintiff's case is based principally on the contention that there is a genuine dispute about the existence of the alleged debt. The plaintiff thus relies on s 459H(1)(a) of the Corporations Act.

5 The plaintiff accepts that painting work was done for it at Cypress Lakes but it does not accept that it retained Daniel Surucic to do the work. Rather, the plaintiff says it retained Chris Surucic who is said to be Daniel's father. This contention is supported by correspondence including a letter of 5 June, 2009 from the plaintiff to Chris Surucic referring to invoices issued by him and alleging that some work covered by the invoices had been invoiced twice or even three times. It seems tolerably clear that there was a…

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: [2009] NSWSC 1180
Decision Date: 3 November 2009

CaseChat Overview and Summary

Bridges and Towers Pty Ltd sought to wind up Surucic in the Federal Court, contending that Surucic owed the company $104,707.50. Surucic contested the debt, arguing that there was a genuine dispute and no other reason to justify setting aside the statutory demand under section 459J(1)(b) of the Corporations Act 2001. The central issue was whether the statutory demand could be set aside based on the lack of authority of the person who made the 459E(3) affidavit, which was not the issuer of the demand, and whether this constituted 'some other reason' within the statutory provision.

The court held that the lack of authority of the person who made the 459E(3) affidavit was not a matter of principle, but it did constitute 'some other reason' for setting aside the statutory demand. The court found that the affidavit did not identify the source of the knowledge of the matters stated in the demand, and the lack of authority of the deponent, coupled with the absence of identification of the source of knowledge, rendered the affidavit insufficient. Consequently, the statutory demand was set aside.

The Federal Court ordered that the statutory demand be set aside. This decision underscored the importance of the authority of the deponent and the necessity for the deponent to identify the source of their knowledge in affidavits supporting statutory demands.

Orders