Diddy Boy v Design - [2009] NSWSC 14

CITATION: Diddy Boy v Design [2009] NSWSC 14

HEARING DATE(S): 02/02/2009

JUDGMENT DATE :
4 February 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 4 February 2009

DECISION: Paragraph 47

CATCHWORDS: Corporations Law. Application to set aside statutory demand under s 459G of Corporations Act. Genuine dispute and off-setting claim alleged. No sufficient evidence to establish an off-setting claim. Genuine dispute as to denial of natural justice in adjudication under Building & Construction Industry Security of Payment Act 1999 fails as plaintiff had lost proceedings to set aside the adjudication.

PARTIES: Diddy Boy Pty Limited & David Hawkins v Design Environment Pty Limited

FILE NUMBER(S): SC 4981/2008

COUNSEL:
Mr JA Arnott for defendant

SOLICITORS: Mr David Hawlins appeared in person for plaintiff
Chamberlains Law Firm Pty Ltd for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 4 FEBRUARY 2009

4981/08 DIDDY BOY PTY LIMITED v DESIGN ENVIRONMENT PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an application to set aside a statutory demand served by the defendant on the plaintiff dated 5 September 2008 for $43,803 33. The demand was in respect of an amount due under a Local Court judgement. The plaintiff company was doing a real estate development, and the defendant was an architectural company which provided some design work and drawings for a section 96 application to the local council by the plaintiff company.

2 The plaintiff originally commenced proceedings by a solicitor but that solicitor ceased to act. Mr Hawkins, the sole director of the plaintiff company, sought leave to appear for the company. I granted him that leave and as a term of that leave Mr Hawkins was joined as a plaintiff in the proceedings.

3 The plaintiff company seeks to assert:

4 The genuine dispute concerns the adjudication process under the Building and Construction Security of Payments Act which occurred over the Christmas break in December 2007. It led to an adjudication which was subsequently registered as a judgement and was the foundation for the statutory demand.

5 Put simply, the plaintiff’s case was that it was not given a fair go and in particular given no opportunity take part in the adjudication process. Mr Hawkins was the relevant person. He says he did not know of the adjudication action due to his absence on holidays during the building industry shutdown over the Christmas and early January periods. He said for this reason he could not participate in this process by making submissions.

6 The merits aspects which he says he was precluded from making submissions on were:

7 It is necessary to give…

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 Diddy Boy v Design

Details

AGLC: Diddy Boy v Design [2009] NSWSC 14
Case: [2009] NSWSC 14
Decision Date: 4 February 2009

CaseChat Overview and Summary

Diddy Boy brought an application against Design Corporation to set aside a statutory demand issued under section 459G of the Corporations Act. The dispute centred on the validity of the statutory demand and whether there were sufficient grounds to set it aside. Diddy Boy argued that there was a genuine dispute regarding the debt and that there was an off-setting claim that should be considered. Additionally, Diddy Boy claimed that there was a denial of natural justice in the adjudication process under the Building & Construction Industry Security of Payment Act 1999, which influenced the statutory demand.

The court had to determine if Diddy Boy provided sufficient evidence to establish an off-setting claim, and if there was a genuine dispute about the debt claimed in the statutory demand. The court also needed to consider whether the denial of natural justice in the adjudication proceedings was a valid reason to set aside the statutory demand. The primary focus was on whether Diddy Boy had demonstrated a genuine dispute or an off-setting claim that warranted setting aside the statutory demand.

The court held that Diddy Boy had not provided sufficient evidence to establish an off-setting claim. Furthermore, the court found that the claim of a denial of natural justice in the adjudication failed because Diddy Boy had previously lost proceedings aimed at setting aside the adjudication. Consequently, the court dismissed the application to set aside the statutory demand. The reasoning was based on the lack of evidence for an off-setting claim and the unsuccessful challenge to the adjudication proceedings.

No orders were made to set aside the statutory demand issued by Design Corporation against Diddy Boy. The court's decision upheld the validity of the statutory demand, leaving Diddy Boy liable for the debt claimed.

Orders