EMBLETON MOTOR CO PTY LTD -v- SAEDI [2014] WASC 308

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 308
Published:	03/09/2014
Case No:	COR:78/2014	Heard:	26 AUGUST 2014
Coram:	MASTER SANDERSON	Delivered:	26/08/14
No of pages:	5	Judgment Part:	1 of 1
Result:	Demand set aside
Category:	B
PDF Version

Parties:	EMBLETON MOTOR CO PTY LTD ABDURAHMAN SAEDI
Catchwords:	Corporations law Application to set aside statutory demand Demand for payment of judgment sum Amount demanded less than amount of judgment Turns on own facts
Legislation:	Nil
Case References:	Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd (2002) 20 ACLC 726

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : EMBLETON MOTOR CO PTY LTD -v- SAEDI [2014] WASC 308 CORAM : MASTER SANDERSON HEARD : 26 AUGUST 2014 DELIVERED : 26 AUGUST 2014 PUBLISHED : 3 SEPTEMBER 2014 FILE NO/S : COR 78 of 2014 BETWEEN : EMBLETON MOTOR CO PTY LTD

Plaintiff

AND

ABDURAHMAN SAEDI

Defendant

Catchwords:

Corporations law - Application to set aside statutory demand - Demand for payment of judgment sum - Amount demanded less than amount of judgment - Turns on own facts

Legislation:

Nil

Result:

Demand set aside

Category: B

Representation:

Counsel:

Plaintiff : Mr B Grubb

Defendant : Mr M Strbac

Solicitors:

Plaintiff : Metaxas & Hager

Defendant : Delta Legal

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

Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd (2002) 20 ACLC 726

1 MASTER SANDERSON: This was the plaintiff's application to set aside a statutory demand. After hearing argument, I set aside the demand and ordered the defendant to pay the plaintiff's costs, including reserved costs. I indicated I would publish reasons for my decision. These are those reasons.

2 The application was supported by an affidavit of Abdel Wahab Osman sworn 22 April 2014. Mr Osman is an employed manager of the plaintiff and is authorised by its director, Kim Johnson, to swear the affidavit on behalf of the plaintiff. He maintains there is a genuine dispute as to the debt. In fact, I set the demand aside under the provisions of s 459J(1)(a) of the Corporations Act 2001 (Cth). I was satisfied there was a defect in the demand and substantial injustice would be caused unless the demand was set aside. Mr Osman's affidavit has, as attachment AW01, a copy of the demand.

3 The amount of the demand is $30,712.81. Under the heading 'Description of the debt' found in the schedule to the demand there appears the following:

Judgment debt

- ordered on 4 March 2014 at District Court of Western Australia at Perth

$30,712.81

4 Attached to the demand is a document entitled 'Third party (third defendant's by counterclaim) bill of costs'. This document appears to have been used in proceedings in the District Court. The heading of the action is as follows:

ST KILDA BEACH TAXI SCHOOL AND STAFFING PTY LTD

(ACN 007 244 895)

Plaintiff

(First Defendant by Counterclaim)

and

CENTRAL…

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.

Keep reading for free

Create a free CaseChat account to read Embleton Motor Co Pty Ltd v Saedi and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] WASC 308
Decision Date: 3 SEPTEMBER 2014

CaseChat Overview and Summary

In the case of Embleton Motor Co Pty Ltd v Saedi, the defendant sought to set aside a statutory demand issued by the plaintiff. The dispute centred on the sum demanded, which was less than the amount of the judgment debt. The case was heard in the Federal Circuit Court of Australia. The primary legal issue was whether the demand could be set aside due to the discrepancy in the amounts claimed.

The court had to determine whether the statutory demand, which sought payment of a lesser amount than the judgment sum, could be upheld. The defendant argued that the statutory demand was flawed because it did not accurately reflect the amount of the judgment. The court considered whether the discrepancies were significant enough to warrant setting aside the demand. The reasoning of the court was that the statutory demand, despite being less than the judgment sum, still constituted an attempt to enforce the judgment debt.

Consequently, the court found that the statutory demand was invalid as it did not accurately reflect the judgment sum. The demand was set aside as it did not comply with the requirements of the relevant legislation. The court's decision was based on the principle that a statutory demand must accurately reflect the amount of the judgment debt to be enforceable. The final order of the court was to set aside the statutory demand.

Orders

Orders of the court

Demand set aside

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.