Federico's Restaurant Pty Ltd v Warwick Entertainment Centre Pty Ltd

[1995] FCA 985

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

BETWEEN:FEDERICO'S RESTAURANT PTY LIMITED

Applicant

AND:WARWICK ENTERTAINMENT CENTRE PTY LIMITED

Respondent

CORAM:Lehane J

PLACE:Sydney

DATE:9 November 1995

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J: These proceedings arise from an application to set aside, under s 459G of the Corporations 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 $97,380.54 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 to be 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 Justice Lehane.

Associate:

Dated:  29 November 1995

Heard:  9-10 November 1995

Place:  Sydney

Decision:  9 November 1995

Appearances:  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.