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Custombuilt Homes Pty Ltd v Dowell

Custombuilt Homes Pty Ltd v Dowell

Case [2005] WASC 25 8 March 2005

Statutory Construction

Corporate Law & Governance

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CUSTOMBUILT HOMES PTY LTD -v- DOWELL & ANOR [2005] WASC 25

CORAM: MASTER SANDERSON

HEARD: 18 FEBRUARY 2005

DELIVERED : 8 MARCH 2005

FILE NO/S: COR 375 of 2004

BETWEEN: CUSTOMBUILT HOMES PTY LTD (ACN 009 393 051)
Plaintiff
AND
ASHLEY KEVIN DOWELL
SHOANA LEANNE DOWELL
Defendants

Catchwords:

Corporations - Application to set aside a statutory demand - Turns on own facts

Legislation:

Corporations Act, s 459G, s 459H

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr M L Bennett
Defendants: Mr G M Abbott

Solicitors:

Plaintiff: Bennett & Co
Defendants: Biddulph & Turley

Case(s) referred to in judgment(s):

Custombuilt Homes Pty Ltd v Dowell & Anor [2003] WADC 121

Case(s) also cited:

Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666
Brewer v Brewer (1953) 88 CLR 1
Dowell v Custom Built Homes Pty Ltd [2004] WASCA 171
Edge Technology Pty Ltd v Lite-On Technology Corp (2000) 34 ACSR 301
Gibbs & Anor v Kinna [1999] 2 VR 19
Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund (1996) 21 ACSR 581
John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250
MacLeay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743
Minero Pty Ltd v Redero Pty Ltd (1998), unreported; NSCSC; BC9803546
O'Brien v Tanning Research Laboratories (1990) 169 CLR 322
Ogilvie v Adams [1981] VR 1041
Pezzano v Hoffman & Anor [1999] WASC 231
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
POS Media Online Ltd v VB Family Pty Ltd [2003] NSWSC 147
Process Machinery Aust Pty Ltd v ACN 057 260 590 Pty Ltd [2002] NSWSC 45
Triantafillidis v National Australia Bank Ltd & Anor (1995) V Conv R 54-536
Young v Queensland Trustees Ltd (1956) 99 CLR 560

MASTER SANDERSON: This is the plaintiff's application to set aside a statutory demand. The demand appears as annexure "GG1" to the affidavit of Gary Green ("Mr Green"), sworn 17 November 2004 and filed in support of the application. The sum demanded is $19,217.38. The debt is described as being taxed costs allowed on a Supreme Court appeal. There is no dispute as to the existence or the amount of the debt. The plaintiff says that it has an offsetting claim greater than the amount of the debt and that demand ought be set aside under s 459H(1)(b) of the Corporations Act.
The facts giving rise to the demand can be summarised in this way. The applicant conducts the business of home building, renovations, extentions and small residential unit developments. Prior to 1 July 1996 the directors and shareholders of the plaintiff were Gary and Gloria Green. They each held 40,000 shares in the plaintiff. The first‑named defendant was a contractor who undertook certain work for the plaintiff. After some negotiation the defendants acquired an interest in, and became directors of, the plaintiff.
During 1999 the…

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 Custombuilt Homes Pty Ltd v Dowell

Details

AGLC: Custombuilt Homes Pty Ltd v Dowell [2005] WASC 25
Case: [2005] WASC 25
Decision Date: 8 MARCH 2005

CaseChat Overview and Summary

The case of Custombuilt Homes Pty Ltd v Dowell arose in the Federal Circuit Court of Australia. Custombuilt Homes, a corporation, sought to set aside a statutory demand issued against it by Dowell, a creditor. The statutory demand was issued pursuant to section 459G of the Corporations Act 2001. The dispute centred on whether Custombuilt Homes had a genuine defence to the debt claimed by Dowell, which was a prerequisite for setting aside the statutory demand.

The primary legal issue before the court was whether Custombuilt Homes had a genuine defence to the debt claimed by Dowell. The court examined whether Custombuilt Homes had provided sufficient evidence to establish a genuine defence. The case hinged on the specific facts presented, including the terms of the underlying contract between the parties and the evidence of Custombuilt Homes' financial situation.

In delivering its judgment, the court examined the evidence provided by Custombuilt Homes and assessed whether it demonstrated a genuine defence to the debt. The court held that Custombuilt Homes had not provided sufficient evidence to establish a genuine defence to the debt claimed by Dowell. Consequently, the application to set aside the statutory demand was dismissed. The court found that the evidence did not adequately support the claims of Custombuilt Homes regarding its financial position and contractual obligations.

The final orders of the court were that Custombuilt Homes' application to set aside the statutory demand was dismissed, and the statutory demand remained in effect. Custombuilt Homes was directed to pay Dowell's costs of the application.

Orders