Driftlake Pty Ltd v Louie

SUPREME COURT OF QUEENSLAND

CITATION:

Driftlake Pty Ltd v Louie [2005] QSC 271

PARTIES:

DRIFTLAKE PTY LTD
(ACN 102 378 487)
v

KIM LOUIE

FILE NO/S:

BS 4551 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

30 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2005

JUDGE:

Moynihan J

ORDER:

Statutory demand set aside.1.   

CATCHWORDS:

CORPORATIONS – PRACTICE AND PROCEDURE – OTHER CASES – application to set aside a statutory demand on the basis that there is a genuine dispute in term s of s 459H of the Corporations Act 2001.

Corporations Act 2001 (Cth);
Land Sales Act 1984 (Qld);

Property Agents and Motor Dealers Act 2000 (Qld).

Beeps Pty Ltd v Marketplace Communications Pty Ltd [2003] QSC 347;
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785;
MNM Developments Pty Ltd v Gerrard [2005] QCA 230;
MP Management (Aust) Pty Ltd v Churven & Anor [2002] QSC 320;
Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601;

Rohalo Pharmaceutical Pty Ltd v Scherer SpA (1994) 15 ACSR 347;

COUNSEL:

Miss C Heyworth-Smith for the applicant;

Mr N Ferrett for the respondent.

SOLICITORS:

Hynes Lawyers for the applicant;

F G Forde Knapp & Marshall for the respondents.

1. MOYNIHAN J: This is an application to set aside a statutory demand on the basis that there is a genuine dispute in term s of s 459H of the Corporations Act 2001.

1. On 20 May 2004 the applicant as purchaser and the respondent as vendor entered into a contract for the sale of proposed lots of land to be subdivided which the applicant intended to develop.

1. The contract was subject to conditions, two of which are relevant for present purposes.  First, was a condition of the sealing of a plan of subdivision on terms satisfactory to the applicant; clause 4.1(g)(i).  Secondly, on the plan of subdivision being registered on terms satisfactory to the applicant and a separate certificate of title issue on or before 12 months from the date of the contract; clause 4.1(g)(ii). 

1. Clause 6 of the contract provided for a “non-refundable” deposit of $193,968 was payable as follows:-

“(a)       $25,000 on the respondent signing the contract

(b)$25,000 after the expiration of the due diligence period

(c)$46,984 four months after the contract had been signed

(d)$96,984 nine months after the respondent signed the contract.”

The applicant paid each of the first three instalments which the contract provided were to be “paid and released immediately to the Seller”, that is paid to the “Deposit Holder” and released to the “Seller” immediately.  The Deposit Holder was the designated agent for the sale of the proposed lots.  The amount of the fourth instalment, $96,984 is the subject of the statutory demand.

1. On 21 February 2005 the respondent invited the termination of the contract and on 25 February the applicant purported to terminate it on three grounds:

   (a)        the plan of subdivision would not be sealed by the Gold Coast…