CITATION: CCD v Drywall [2006] NSWSC 1012 HEARING DATE(S): 24/08/06
JUDGMENT DATE :
29 September 2006JURISDICTION: Equity Division JUDGMENT OF: Associate Justice Macready CATCHWORDS: Corporations Law. Application under 459G of the Corporations Act 2001 to set aside statutory demand. Formal defects in the affidavit in support a reason for setting aside the demand. Genuine dispute and off-setting claim established. Demand set aside. CASES CITED: Okaroo Pty Limited v Vos Construction and Joinery Pty Limited and Anor [2005] NSWSC 45
Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd
Olan Mills Studio Pty Ltd v Kodak (Australasia) Pty Ltd
(1996) 20 ACSR 746
Kezarne Pty Ltd v Sydney Asbestos Removal Services Pty Ltd (1998) 29 ACSR 11
B & M Quality Constructions Pty Ltd v Buyrite Steel Pty Ltd Supplies (1994) 13 ACLC 88
Beta Trading Company Pty Ltd v Specialised Laminators (No 1) Pty Ltd (1996) 15 ACLC 270
Re Mabrouk Pty Ltd (9 February 1996)
POS Media v B Family [2003] NSWSC 147
Tokich Holdings Pty Limited v Sheraton Constructions (NSW) Pty Limited (In liquidation) [2004] NSWSC 527
Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACLC 669
Brodyn Pty Limited t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 (at [53])
Fifty Property Investments Pty Limited v Barry J O'Mara and Anor [2006] NSWSC 428
Max Cooper & Sons (Builders) Pty Ltd v M & E Booth & Sons Pty Ltd (2003) 202 ALR 680
Greenaways Australia Pty Ltd v CBC Management Pty Ltd [2004] NSWSC 1186
Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553
Plus 55 Village Management Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 559PARTIES: CCD Group Pty Limited v Premier Drywall Pty Limited FILE NUMBER(S): SC 2390/2006 COUNSEL: Mr JM White for plaintiff
Mr L Ellison SC for defendantSOLICITORS: Kemp Strang for plaintiff
David Pain & Co for defendant
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
Associate Justice Macready
Friday 29 September 2006
2390 of 2006 THE CCD GROUP PTY LIMITED v PREMIER DRYWALL PTY LIMITED
JUDGMENT
1 HIS HONOUR: This is an application by the plaintiff to set aside a statutory demand under s 459G of the Corporations Act 2001 (Cth) for an amount of $20,315.61 being the amount of an adjudication determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“BACISOP Act”) and interest.
2 The adjudication was made on 13 February 2006.
3 The plaintiff submits that the demand should be set aside because there are several formal defects in the demand and the affidavit in support. It also submits that the demand should be set aside on the basis of the following genuine disputes or off-setting claims:
(a) There is a plausible contention that the Adjudicator failed to correctly determine the existence of a construction contract, a “basic and essential fact” going to his jurisdiction which would lead to the determination being…
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- Case
- [2006] NSWSC 1012
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the statutory demand should be set aside due to defects in the affidavit and whether Premier Drywall had established a genuine dispute over the amount of the debt. The court had to consider the statutory requirements for a valid statutory demand under the Corporations Act and whether the procedural defects in the affidavit were significant enough to warrant setting aside the demand. Additionally, the court needed to determine whether Premier Drywall had demonstrated a genuine dispute over the debt, which could also be a ground for setting aside the demand.
In its decision, the court found that there were indeed procedural defects in the affidavit provided by CCD Group, which were considered significant enough to invalidate the statutory demand. The court also noted that Premier Drywall had established a genuine dispute over the debt claimed, with evidence presented to suggest that the amount owed was less than what CCD Group claimed. Given these findings, the court concluded that the statutory demand should be set aside. Consequently, the court ordered that the statutory demand be set aside, effectively dismissing CCD Group's claim against Premier Drywall.
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