FEDERICO'S RESTAURANT PTY LIMITED ; AND: WARWICK ENTERTAINMENT CENTRE PTY

[1995] FCA 1202

.

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JUDGMENT NO. e r r ~ e e w 1 w t 0 1 0 1

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	1
GENERAL DIVISION	) No. NG 3625 of 1994

BETWEEN: FEDERICO'S RESTAURANT PTY LIMITED

Applicant

AND:	WARWICK ENTERTAINMENT CENTRE PTY
L1 MITED

Respondent

CORAM:	Lehane J
PLACE:	Sydney
DATE:	9 November 1995

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EXTEMPORE REASONS FOR JUDGMENT

LEHANE J: These proceedings arise from an application to set aside, under s 4596

of the Cor~orations Law, a statutory demand served on the applicant by the respondent, in which the amount claimed is the sum of $97,380.54. It has been suggested on behalf of the respondent that the relevant amount now due by the applicant to it is a considerably greater sum and the question has thus arisen whether,

in considering the claim by the applicant to have an off-setting claim of the kind

referred to in s 459H of the Corporations Law, I should regard, as the substantiated amount under that section, the greater amount - whatever it may be - or merely the amount of $07,380.54 claimed in the statutory demand.

Mr Curtin argued on behalf of the applicant that I must have regard only to the

amount claimed of $97,380.54, and in my view that argument is clearly correct. It is plain, I believe, that the statutory demand may be satisfied by payment of the amount

claimed in it. It is, in my view, inconceivable that there could in any circumstances be

a requirement - in order that the demand be complied with - that a greater amount

than that claimed be paid. If one then returns to S 459H, it appears to be quite clear that the debt to which that section refers, against which an off-setting claim may be established, is the debt to which the demand relates. That is, in the context of this demand, the amount claimed in paragraph 1, being as I said, the sum of $97,380.54.

Consequently, in my view, for the purpose of establishing whether the applicant has

an off-setting claim, the admitted amount of the debt must for the purpose of the Law

be taken t o he the sum of $97,380.54, not any greater sum.

I certify that this and the preceding 1 page is a true

copy of the Reasons for Judgment of the Honourable -

Associate:

Dated: 29 November 1995

Heard:

9- 10 November 1995

Place:

Sydney

Decision:

9 November 1995

A~oearances:

Mr G Curtin of counsel instructed by Webeck Farland

Pender appeared for the applicant.

Mr B W Ingram of counsel instructed by Bartier Perry

& Purcell appeared for the respondent.