CITATION: Bridges and Towers Pty Ltd v Surucic [2009] NSWSC 1180 HEARING DATE(S): 03/11/09
JUDGMENT DATE :
3 November 2009JURISDICTION: Equity Division
Corporations ListJUDGMENT 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 7.24CATEGORY: 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 489PARTIES: Bridges and Towers Pty Ltd - Plaintiff
Daniel Surucic - DefendantFILE NUMBER(S): SC 3729/09 COUNSEL: Mr A A Narayan - Plaintiff
Mr G Vok - DefendantSOLICITORS: 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…
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- Case
- [2009] NSWSC 1180
- Decision Date
CaseChat Overview and Summary
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.
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