Civil v Et Constructions - [2000] NSWSC 1119

CITATION: Civil v ET Constructions [2000] NSWSC 1119

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4419/2000

HEARING DATE(S): 30/11/2000

JUDGMENT DATE: 15 December 2000

PARTIES :

Civil Systems Pty Ltd (ACN 064 594 430) v E.T. Constructions Pty Ltd (ACN 003 655 892)

JUDGMENT OF: Master Macready at 1

COUNSEL :
Mr M.R. Pesman for plaintiff.

SOLICITORS:
Business Law Office for plaintiff
Mr D. Bowles, as agent for Christine Turnbull, solicitor for defendant

CATCHWORDS: Corporations Law. Application to set aside statutory demand on the basis that it was proposed to set aside judgment upon which the demand was based. Judgment set aside after expiration of 21 day period and before hearing. Held that the affidavit filed within the 21 day period was sufficient to give jurisdiction. Demand set aside.

DECISION: Paragraph 18

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Friday 15 December 2000
4419 of 2000 CIVIL SYSTEMS PTY LTD v E.T. CONSTRUCTIONS PTY LTD

JUDGMENT 1 MASTER: This is the hearing of an application made on 31 October 2000 in which the applicant seeks to set aside a creditor’s statutory demand for payment of a debt. The application refers to a demand served on 7 February 2000 but clearly that is an error as a recounting of the facts below will reveal. The relevant demand is dated 9 October 2000. The amount claimed in the demand is a sum of $50,155.86 a claim pursuant to a judgment in the Local Court on 18 September 2000. 2 The plaintiff submits that the demand should be set aside on the basis that there is a genuine dispute in respect of the debt and that, alternatively, there is no subsisting debt as the Local Court judgment upon which the demand was based has now been set aside. The defendant for its part seeks the dismissal of the proceedings. Although expressed on a separate basis it is a really a combination of:-

1. The affidavit in support not being a sufficient affidavit for the purposes of jurisdiction.
2. At the time the proceedings were commenced, when the affidavit in support was filed that there could be no dispute as the Local Court judgment had not then been set aside.

3 It is necessary to set out some of the background circumstances in order to understand the arguments put on behalf of the parties. On 28 August 1998 the plaintiff filed a Statement of Liquidated Claim in the Local Court against the defendant. That claim is a claim for work done in respect of some civil engineering works for the defendant who was a builder engaged in some school extensions at a site at Erskine Park. The claim was for $25,939 which with interest and costs came to $27,644.26. The claim is one based on contract or, alternatively, quantum meruit. After proceedings were commenced there were a number of requests for particulars of the plaintiff’s claim in September, October and November. These were not answered by…

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: [2000] NSWSC 1119
Decision Date: 15 December 2000

CaseChat Overview and Summary

The case of Civil v Et Constructions involved a statutory demand issued under the Corporations Act 2001 (Cth). The demand was issued by Civil against Et Constructions, seeking payment of a debt. Et Constructions applied to set aside the statutory demand on the basis that it was proposed to set aside a judgment upon which the demand was based. The application was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the affidavit filed by Et Constructions within the 21-day period was sufficient to give the court jurisdiction to hear the application to set aside the statutory demand, even though the judgment had been set aside after the 21-day period had expired and before the hearing of the application. The court had to determine whether the requirement of a valid judgment at the time of the application was a jurisdictional requirement or a substantive one.

The court found that the requirement of a valid judgment at the time of the application was a substantive requirement rather than a jurisdictional one. It held that the affidavit filed within the 21-day period was sufficient to give the court jurisdiction. The court reasoned that the jurisdiction of the court to hear an application to set aside a statutory demand was established by the timely filing of the affidavit, and the subsequent setting aside of the judgment did not affect the court's jurisdiction. The demand was therefore set aside.

No further orders were made by the court.

Orders