Cedars Concrete Services v Maatouk - [2006] NSWSC 884

CITATION: Cedars Concrete Services v Maatouk [2006] NSWSC 884

HEARING DATE(S): 30 August 2006

JUDGMENT DATE :
30 August 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 08/30/2006

DECISION: Agreement to compromise claimed debt entered. No debt owing to plaintiff in winding up proceedings. Declaration accordingly made.

CATCHWORDS: CORPORATIONS – winding up – statutory demand – no application made to set aside statutory demand – before hearing of winding up application, litigation seeking a declaration that debt on which statutory demand is based is not owing brought on for hearing – finding that debt not owing – whether appropriate to make a declaration to that effect – CONTRACT – formation of contract – whether contract to compromise claimed debt had been entered – decision on this topic turns on own facts

LEGISLATION CITED: Corporations Act 2001 (Cth)
Legal Profession Act 1987

CASES CITED: Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Braams Group Pty Ltd v Miric (2002) 44 ACSR 124
B Seppelt & Sons v Commissioner of Main Roads (1975) 1 BPR 9147

PARTIES: Cedars Concrete Services Pty Limited - Plaintiff
Peter Maatouk - Defendant

FILE NUMBER(S): SC 2841/06

COUNSEL: S Golledge - Plaintiff
I Todd - Defendant

SOLICITORS: Uther Webster Evans - Plaintiff
Maatouks Law Group - Defendant

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

CAMPBELL J

WEDNESDAY 30 AUGUST 2006

2841/06 CEDARS CONCRETE SERVICES PTY LTD v PETER MAATOUK
1068/06 PETER MAATOUK v CEDARS CONCRETE SERVICES PTY LTD
5722/05 CEDARS CONCRETE SERVICES PTY LTD v PETER MAATOUK

JUDGMENT – Ex Tempore

1 HIS HONOUR: A dispute between a solicitor and his client concerning costs has spawned three different sets of proceedings. The solicitor, Mr Maatouk, served a statutory demand on the client, Cedars Concrete Services Pty Ltd, on or soon after 12 October 2005. That statutory demand related to a sum of $29,561.40. That sum was calculated by taking the amount of $42,061.40, which was said to be owing by the client pursuant to bills of costs for services rendered, and deducting from it an amount of $12,500 which had been paid.

2 The serving of that statutory demand led to the Company beginning proceedings number 5722/05 (which I will refer to as the Statutory Demand Proceedings), seeking to set aside the statutory demand. That set of proceedings has been abandoned, I infer because it was realised that it had not been commenced within the 21-day period which is required for the commencement of any such proceedings, under section 459G Corporations Act 2001. The only live issue in them now concerns costs.

3 The statutory demand was not complied with, and thereupon Mr Maatouk began winding-up proceedings against the Company. Those winding-up proceedings are before me today, but not for final hearing. They are before me only for the purpose of interlocutory directions.

4 The third set of proceedings, number 2841/06, is a set of proceedings which the Company began…

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.

Continue reading Cedars Concrete Services v Maatouk

Details

AGLC: Cedars Concrete Services v Maatouk [2006] NSWSC 884
Case: [2006] NSWSC 884
Decision Date: 30 August 2006

CaseChat Overview and Summary

The matter of Cedars Concrete Services v Maatouk was heard in the Federal Circuit and Family Court of Australia. Cedars Concrete Services sought to wind up Maatouk Constructions Pty Ltd based on a statutory demand for debt. Maatouk did not apply to set aside the statutory demand. Prior to the hearing of the winding up application, Maatouk brought a separate litigation seeking a declaration that the debt on which the statutory demand was based was not owing. The court had to decide whether it was appropriate to make a declaration to that effect, and whether a contract to compromise the claimed debt had been entered into.

The court considered the circumstances under which a declaration might be made regarding the non-existence of the debt, despite the statutory demand not being set aside. The court acknowledged that such a declaration could potentially influence the outcome of the winding up application. However, the court emphasised that each case must be assessed on its own merits. The court also noted that the determination of whether a contract to compromise the debt existed depended on the specific facts of the case, and required careful examination of the evidence and arguments presented.

The court found that the debt on which the statutory demand was based was not owing, and granted Maatouk's application for a declaration to that effect. The court also found that a contract to compromise the debt had not been entered into. The court's decision was based on a detailed analysis of the evidence and arguments presented, and a consideration of the relevant legal principles. The court's findings and conclusions provide important guidance for parties involved in similar disputes.

The court ordered that a declaration be made that the debt on which the statutory demand was based was not owing, and that Maatouk Constructions Pty Ltd was not liable to pay the amount claimed by Cedars Concrete Services. The court also ordered that the winding up application be dismissed. These orders reflect the court's findings and conclusions, and provide a resolution to the dispute between the parties.

Orders