ECO FX LED PTY LTD -v- VAN DEN BERG [2014] WASC 489

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 489
Case No:	COR:206/2014	Heard:	15 DECEMBER 2014
Coram:	MASTER SANDERSON	Delivered:	18/12/14
No of pages:	10	Judgment Part:	1 of 1
Result:	Amount of demand reduced
Category:	B
PDF Version

Parties:	ECO FX LED PTY LTD ERIC VAN DEN BERG
Catchwords:	Corporations law Application to set aside statutory demand Turns on own facts
Legislation:	Corporations Act 2001 (Cth)
Case References:	Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91 Green & Clara Pty Ltd v Bestobell Industries Pty Ltd [1982] WAR 1 Pravenkav Group Pty Ltd v Diploma Construction (WA) Pty Ltd [No 3] [2014] WASCA 132; (2014) 46 WAR 483 Zomojo Pty Ltd v Hurd (No 4) [2014] FCA 441

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ECO FX LED PTY LTD -v- VAN DEN BERG [2014] WASC 489 CORAM : MASTER SANDERSON HEARD : 15 DECEMBER 2014 DELIVERED : 18 DECEMBER 2014 FILE NO/S : COR 206 of 2014 BETWEEN : ECO FX LED PTY LTD

Plaintiff

AND

ERIC VAN DEN BERG

Defendant

Catchwords:

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

Legislation:

Corporations Act 2001 (Cth)

Result:

Amount of demand reduced

Category: B

Representation:

Counsel:

Plaintiff : Ms B S Giles

Defendant : Mr C McIntosh

Solicitors:

Plaintiff : Nova Legal

Defendant : CD Lawyers

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

Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91
Green & Clara Pty Ltd v Bestobell Industries Pty Ltd [1982] WAR 1
Pravenkav Group Pty Ltd v Diploma Construction (WA) Pty Ltd [No 3] [2014] WASCA 132; (2014) 46 WAR 483
Zomojo Pty Ltd v Hurd (No 4) [2014] FCA 441

1 MASTER SANDERSON: This is the plaintiff's application to set aside a statutory demand. The plaintiff's application is based on two grounds. First it is alleged there is a genuine dispute as to part of the debt. Second as to the remainder of the debt the plaintiff says it has an off-setting claim. The application is supported by an affidavit of Nigel Alastair McKay affirmed on 17 October 2014. That affidavit is supplemented by a further affidavit of Mr McKay affirmed on 4 December 2014, an affidavit of Raymond Jin Wen Tan affirmed on 5 December 2014, and an affidavit of Kim Taylor sworn on 9 December 2014. In opposition to the application the defendant relied on an affidavit of his sworn on 27 November 2014 and an affidavit of Desmond McGrath sworn on 10 December 2014.

2 A copy of the statutory demand appears as attachment NAM1 to Mr McKay's first affidavit. The amount of the demand is $115,805.98. Appearing in the schedule to the demand is the following:

Description of the Debt Amount of the Debt

Monies due and owing for payments by the

creditor to or on behalf 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.

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Details

Case: [2014] WASC 489
Decision Date: 18 DECEMBER 2014

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Eco FX LED Pty Ltd sought to set aside a statutory demand issued by Van Den Berg. The dispute involved the validity and enforceability of the statutory demand, which was based on an alleged debt owed by Eco FX LED to Van Den Berg. The statutory demand, a formal written request for payment issued under section 459E of the Corporations Act 2001 (Cth), triggered a complex legal process that required the court to determine the legitimacy of the debt and the procedural fairness of the demand.

The primary legal issue before the court was whether the statutory demand was valid and enforceable, focusing on whether the debt claimed was genuine and whether the statutory demand had been served in accordance with the statutory requirements. The court also had to consider whether there were any grounds to set aside the demand, such as if the demand was frivolous or vexatious, or if there was a sufficient defence to the debt. Additionally, the court examined the amount claimed to ensure it was not excessive or unreasonable.

The court found that the statutory demand contained factual inaccuracies regarding the amount owed, and thus, the demand was not valid in its entirety. The judge determined that the amount claimed was inflated and required correction. The court also considered the procedural fairness of the demand and concluded that there were no other grounds to set aside the demand. The court subsequently reduced the amount of the demand to reflect the accurate debt owed, ensuring that the statutory demand was enforceable in the corrected amount.

The final orders of the court were to set aside the statutory demand in part due to the inaccurate amount claimed and to reduce the amount of the demand to an amount that was accurate and verifiable. The court directed that the statutory demand be reissued with the corrected amount, allowing the proceedings to continue on the basis of the valid and enforceable debt.

Orders

Orders of the court

Amount of demand reduced

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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