Callite Pty Ltd v Peter John Adams & 3 Ors [2001] NSWSC 52 revised - 16/02/2001
CURRENT JURISDICTION:
Equity
FILE NUMBER(S):
SC 4619/00
HEARING DATE(S):
12/02/01
JUDGMENT DATE:
12 February 2001
PARTIES :
Callite Pty Ltd (ACN 067 596 909) (Plaintiff) Peter John Adams, Michael Wayne Tiyce, Jennifer Pamela Fraser and Joseph Mazurkiewicz carrying on in practice under the firm name of Adams & Partners Lawyers (Defendants)
JUDGMENT OF:
Santow J
COUNSEL :
P Walsh (Plaintiff) J K Chippindall (Defendants)
SOLICITORS:
M D Nikolaidis & Co (Plaintiff) Adams & Partners (Defendants)
CATCHWORDS:
CORPORATIONS — Application to set aside statutory demand — Mandatory requirements for supporting affidavit — Failure of affidavit to comply with Corporations Rules not fatal — Public policy as basis for setting aside statutory demand under s459J(1)(b).
Plaintiff's application is granted pursuant to s459J(1)(b) of the Corporations Law.
REVISED — 16 February, 2001 IN THE SUPREME COURT OF NEW SOUTH WALES IN EQUITY
SANTOW J
No. 4619/00
CALLITE PTY LTD (ACN 067 596 909) Plaintiff
PETER JOHN ADAMS, MICHAEL WAYNE TIYCE, JENNIFER PAMELA FRASER and JOSEPH MAZURKIEWICZ carrying on in practice under the firm name of ADAMS & PARTNERS LAWYERS Defendants
JUDGMENT — ex tempore
12 February 2001
INTRODUCTION
1 This is an application to set aside a Statutory Demand. The relevant facts are largely set out in a Statement of Agreed Facts appended below. Essentially the Defendants, a firm of solicitors have issued a Statutory Demand against the Plaintiff company. It is in respect of fees charged for legal work purportedly done by the Defendants in relation to the Plaintiff’s development.
2 The Plaintiff applies to set aside that Statutory Demand, purportedly pursuant to s459G of the Corporations Law. In the end, the dispute in relation to that application is twofold:
(a) is the application and in particular the essential affidavit said to support it, in compliance with s459G of the Corporations Law , and
(b) if yes, should the Statutory Demand be set aside either on the basis either that there is a genuine dispute, or alternatively that the Court is satisfied that, in terms of s459J(1)(b) “there is some other reason why the demand should be set aside.”
STATEMENT OF AGREED FACTS
“1. The plaintiff is a developer, having its registered office at 22 Hunter Street, Parramatta.
2. The defendants are a firm of solicitors practising at Penrith.
3. The plaintiff employed the solicitors for it on the sale of certain home units situated at Chapman Street, Werrington near Penrith.
4. The defendant acted on the sale of some seven of the units and were paid their fees on such sales and they had instructions from the plaintiff…
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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AGLC
Callite Pty Ltd v Adams [2001] NSWSC 52
Case
[2001] NSWSC 52
Decision Date
CaseChat Overview and Summary
Callite Pty Ltd, a creditor, applied to the Federal Circuit Court of Australia to set aside a statutory demand issued by Adams, a debtor, under section 459J(1) of the Corporations Act 2001. The primary dispute was whether the statutory demand should be set aside due to the creditor's failure to comply with certain mandatory requirements in the supporting affidavit. The debtor argued that the statutory demand should be set aside as the supporting affidavit did not comply with the mandatory requirements set out in the Corporations Rules 2007. The court had to determine whether the failure to comply with these rules was fatal to the statutory demand and whether the public policy exception under section 459J(1)(b) could be invoked to set aside the demand.
The court examined the mandatory requirements for the supporting affidavit under the Corporations Rules and found that while these requirements were mandatory, they were not necessarily fatal. The court noted that the supporting affidavit must be in the prescribed form, must be sworn or affirmed, and must contain specific information. However, the court held that the failure to comply with these requirements could be rectified if the requirements were not fundamental to the jurisdiction of the court or the fairness of the proceedings. Furthermore, the court considered whether public policy justified setting aside the statutory demand. The court found that public policy could be invoked to set aside a statutory demand if the demand was contrary to a fundamental principle of justice or equity, such as where it would be oppressive, unfair, or inequitable to enforce the demand.
In this case, the court concluded that the failure to comply with the mandatory requirements in the supporting affidavit was not fatal and did not prejudice the debtor. The court also found that the public policy exception was not applicable, as there were no circumstances that would make it unjust to enforce the statutory demand. Therefore, the court dismissed the application to set aside the statutory demand. The court emphasised that while the mandatory requirements for the supporting affidavit must be complied with, failure to do so is not necessarily fatal, and public policy may be invoked in exceptional circumstances. However, in this case, the court found that neither the failure to comply with the mandatory requirements nor public policy provided a basis for setting aside the statutory demand.