Creata (Aust) Pty Ltd v Faull

Case [2017] NSWCA 300


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Creata (Aust) Pty Ltd v Faull [2017] NSWCA 300
Hearing dates:31 October 2017
Date of orders: 28 November 2017
Decision date: 28 November 2017
Before: 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
Legislation Cited: Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW).
Supreme Court Act 1970 (NSW)
Suitors Fund Act 1951 (NSW),
Cases Cited: Be Financial Pty Ltd v Das [2012] NSWCA 164
Bevic Holdings Pty Ltd v Wright [2015] NSWCA 210
Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344
Broadspectrum (Australia) Pty Ltd v Centauri Business Services Pty Ltd [2016] NSWSC 1045
Drillsearch Energy Ltd v Carling Capital Partners Pty Ltd [2009] NSWSC 1192
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 91 ALJR 486; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Geoffrey W Hill & Associates v King (1992) 27 NSWLR 228
Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408; [2009] SASC 77
In the matter of Creata (Aust) Pty Ltd (No 2) [2017] NSWSC 1090
In the matter of Creata (Aust) Pty Ltd [2017] NSWSC 1055
In the matter of Linton Developments (Qld) Pty Ltd [2017] NSWSC 336
In the matter of Litigation Insurance Pty Ltd [2017] NSWSC 334
Infratel Networks Pty Ltd v Gundry's Telco and Rigging Pty Ltd (2012) 297 ALR 372; [2012] NSWCA 365
Ligon 158 Pty Ltd v Huber (2016) 117 ACSR 495; [2016] NSWCA 330
Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd [2015] VSCA 330
MNWA Pty Ltd v Deputy Commissioner of Taxation (2016)…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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