Gleeson JA at [1] White JA at [2] Barrett AJA at [3]
Decision:
1. Grant leave to appeal. 2. Direct that the applicant do within seven days file a notice of appeal in the form of the draft notice of appeal in the white folder. 3. Set aside the orders made by the primary judge on 18 August 2017 and make in lieu the following orders: (a) Order that the statutory demand dated 30 January 2017 served on the plaintiff by the defendant be set aside. (b) Order that the defendant pay the plaintiff’s costs of the proceedings. 4. Order that the respondent pay the applicant’s costs of both the application for leave to appeal and the appeal and have a certificate under the Suitors Fund Act 1951 (NSW), if qualified.
Catchwords:
CORPORATIONS – statutory demand – appeal from a decision refusing to set aside – where application based on argument as to correct construction of deed – necessity to exercise restraint where questions of construction has element of rational controversy – where evidence of statement by third party indicates possibility of defence to debt recovery claim – necessity to exercise restraint in judging ultimate cogency of that evidence – genuine dispute or recent invention – sufficient material to show plausible case – leave to appeal granted
[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
AGLC
Creata (Aust) Pty Ltd v Faull [2017] NSWCA 300
Case
[2017] NSWCA 300
Decision Date
CaseChat Overview and Summary
Creata (Aust) Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of a single judge who had refused to set aside a statutory demand. The application to set aside the statutory demand was based on an argument concerning the correct construction of a deed, which Creata contended gave rise to a genuine dispute about the existence of the debt.
The Court of Appeal was required to determine whether the primary judge had erred in refusing to set aside the statutory demand. Specifically, the court had to consider whether there was a "genuine dispute" about the debt, or whether the alleged dispute was a "recent invention" designed to avoid compliance with the statutory demand. This involved assessing whether the construction of the deed raised a question of rational controversy and whether evidence of a statement by a third party indicated a possibility of a defence to a debt recovery claim.
The Court of Appeal reasoned that where a question of construction of a deed has an element of rational controversy, and where there is evidence suggesting a plausible defence to a debt recovery claim, a court should exercise restraint in determining the ultimate cogency of that evidence. The court found that there was sufficient material before it to demonstrate a plausible case of a genuine dispute. Consequently, leave to appeal was granted, the orders of the primary judge were set aside, and the statutory demand was ordered to be set aside.
Orders
Orders of the court
1. Grant leave to appeal.
2. Direct that the applicant do within seven days file a notice of appeal in the form of the draft notice of appeal in the white folder.
3. Set aside the orders made by the primary judge on 18 August 2017 and make in lieu the following orders:
(a) Order that the statutory demand dated 30 January 2017 served on the plaintiff by the defendant be set aside.
(b) Order that the defendant pay the plaintiff’s costs of the proceedings.
4. Order that the respondent pay the applicant’s costs of both the application for leave to appeal and the appeal and have a certificate under the Suitors Fund Act 1951 (NSW), if qualified.