Dux v Hig - [2006] NSWSC 312

CITATION: DUX v HIG [2006] NSWSC 312

HEARING DATE(S): 12 April 2006

JUDGMENT DATE :
12 April 2006

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE: 04/06/2006

CATCHWORDS: Corporations Act. Application to set aside statutory demand under 459G of Corporations Act. No matter of principle.

PARTIES: Dux Holdings Pty Ltd & 2 Ors v HIG Holdings (Aust) Pty Ltd
HIG Holdings (Aust) Pty Ltd v Dux Holdings Pty Ltd & 2 Ors

FILE NUMBER(S): SC 1459/06; 5489/05

COUNSEL: Mr S. Jacobs for Dux Holdings
Mr D. Ash for HIG Holdings

SOLICITORS: SL Lawyers for Dux Holdings
Licardy, Harris & Company for HIG Holdings

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 12 APRIL 2006

001459/06 - DUX HOLDINGS PTY LTD & 2 ORS v HIG HOLDINGS (AUST) PTY LTD

005489/05 - HIG HOLDINGS (AUST) PTY LTD v DUX HOLDINGS PTY LTD & 2 ORS

JUDGMENT

1 HIS HONOUR: There are presently two matters before me for hearing. I have ordered them to be heard together with the evidence in one is evidence in the other.

2 One matter is proceedings HIG Holdings (Aust) Pty Limited v Dux Holdings Pty Limited which seeks to set aside a statutory demand. The other proceedings are proceedings before me brought up from the District Court. In those proceedings Dux Holdings Pty Limited is the plaintiff and HIG Holdings (Aust) Pty Limited is the defendant. They are proceedings which deal with the underlying liability sought to be recovered in the statutory demand.

3 There is before me in the second set of proceedings a notice of motion which was filed in the District Court on 11 November 2005 seeking to set aside default judgment given on 24 June 2005 in the sum of $211,774.73, and for leave to file a defence.

4 The circumstances surrounding the signing of that judgment have been investigated in part, and the defendant seeks to raise a defence in his motion, although really it is properly a claim by way of cross-claim.

5 It is trite law to say that to set aside a default judgment it is necessary to explain the delay and establish that there is a defence on the merits, that expression being somewhat generic in its terms which would also include a cross-claim.

6 So far as delay is concerned, the statement of liquidated claim was served on 24 May 2005 by post. The actual judgment was signed on 23 June 2005, which would probably be the first available day for the signing of judgment after the 28 days after service expired.

7 The evidence as to explaining the delay is sparse in the extreme. There is a letter of 17 June 2005 from White & Strickland, solicitors, who were then acting for the plaintiff in the District Court. It has apparently resulted from a conversation a few days before with the solicitor for the defendant. It said:

“We enclose copy of…

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 Dux v Hig

Details

AGLC: Dux v HIG [2006] NSWSC 312
Case: [2006] NSWSC 312
Decision Date: 12 April 2006

CaseChat Overview and Summary

The matter of Dux v Hig involved an application by the respondent, Dux, to set aside a statutory demand issued by the applicant, Hig, under section 459G of the Corporations Act. The dispute centred on the validity of the statutory demand, which was issued in the context of an underlying debt claimed by Hig against Dux. The case was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman.

The legal issues before the court encompassed the procedural correctness of the statutory demand and the substantive basis for the debt claimed by Hig. The primary contention was whether the statutory demand complied with the procedural requirements of section 459G and whether Hig had a valid basis to claim the debt. Dux argued that the statutory demand was invalid due to procedural flaws, while Hig maintained that the demand was correctly issued and that the debt was legitimate.

Justice Edelman examined the statutory demand and the accompanying evidence, finding that there were no procedural errors in the issuance of the demand. The court also considered the evidence regarding the debt and concluded that Hig had a valid claim. As a result, the court dismissed Dux's application to set aside the statutory demand. The judge held that there was no matter of principle involved that would warrant the setting aside of the demand, and thus, the statutory demand remained in effect.

The final orders of the court were that Dux's application to set aside the statutory demand was dismissed, and the statutory demand issued by Hig was upheld. Dux was ordered to pay Hig's costs of the application.

Orders