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CCD Group Pty Ltd v Premier Drywall Pty Ltd

CCD Group Pty Ltd v Premier Drywall Pty Ltd

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Case Copied 29 September 2006 36 min read

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CITATION: CCD v Drywall [2006] NSWSC 1012

HEARING DATE(S): 24/08/06

JUDGMENT DATE :
29 September 2006

JURISDICTION: 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 559

PARTIES: 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 defendant

SOLICITORS: Kemp Strang for plaintiff
David Pain & Co for defendant

- 1 -

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:

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: [2006] NSWSC 1012
Decision Date: 29 September 2006

CaseChat Overview and Summary

The case of CCD Group Pty Ltd v Premier Drywall Pty Ltd involved a dispute over a statutory demand issued by CCD Group against Premier Drywall. CCD Group, a creditor, issued a statutory demand under section 459H of the Corporations Act 2001, asserting that Premier Drywall owed a debt of $64,477. Premier Drywall, the debtor, sought to have the statutory demand set aside by the Federal Circuit Court, claiming that the demand was invalid due to procedural errors in the supporting affidavit and that there was a genuine dispute over the debt.

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.

Orders