Custombuilt Homes Pty Ltd v Dowell

Case [2005] WASC 25


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

  1. 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.

  2. 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.

  3. During 1999 the…

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

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

Orders of the court

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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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