Get'm Pty Ltd v Triulcio - [2004] NSWSC 291

CITATION: [1] Get'm Pty Ltd v Triulcio & Anor - [2] Chase Property Investments Pty Ltd v Triulcio & Anor - [3] Chase (No 1) Property Investments Pty Ltd v Triulcio & Anor [2004] NSWSC 291

HEARING DATE(S): 26 March, 2004

JUDGMENT DATE:
26 March 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Palmer J

DECISION: Statutory demands set aside in two out of three applications, without conditions.

CATCHWORDS: CORPORATIONS - STATUTORY DEMAND - Applications to set aside - whether genuine dispute - whether conditions should be imposed under s.459M.

LEGISLATION CITED: Corporations Act 2001 (Cth) - s.459G, s.459M

CASES CITED: - Macleay Nominees Pty Ltd v Belle Property East Pty Ltd (2001) NSWSC 743
- Panel Tech Industries v Australian Skyreach Equipment Pty Ltd (No 2) (2003) NSWSC 896

PARTIES :
[1] Get'm Pty Limited - Plaintiff
[1] Domenico Triulcio - First Defendant
[1] Domenica Triulcio - Second Defendant
[2] Chase Property Investments Pty Limited - Plaintiff
[2] Domenico Triulcio - First Defendant
[2] Domenica Triulcio - Second Defendant
[3] Chase (No 1) Property Investments Pty Limited - Plaintiff
[3] Domenico Triulcio - First Defendant
[3] Domenica Triulcio - Second Defendant

FILE NUMBER(S): SC [1] 5968/03; [2] 5969/03; [3] 5985/03

COUNSEL: J. Steele - Plaintiffs
J.P. Conomy - Defendants

SOLICITORS: John de Mestre & Co - Plaintiffs
Sachs Gerace Lawyers - Defendants

Ex tempore
1 Before the Court are three applications to set aside statutory demands under s.459G of the Corporations Act 2001 (Cth). All three applications arise out of common circumstances. I have ordered that all three be heard together, the evidence in one being evidence in the others. 2 The applications arise from loans made by a father and mother, Mr and Mrs D. Triulcio, to companies in which their children were officers, namely, Get’m Pty Ltd (“Get’m”), Chase Property Investments Pty Ltd (“Chase Property”), and Chase (No 1) Property Investments Pty Ltd (“Chase (No 1)”). The loans were undocumented and unsecured. 3 The Defendants say that in January 2001 they lent $110,000 to Get’m, $25,500 to Chase (No 1) and $15,500 to Chase Property. The loans were made by cheques drawn in favour of those companies at the request of Mr Elias. It seems that Mr Triulcio’s son, Rocco, asked his father for the loans and his father readily agreed, directing Rocco to make up the cheques which he required. Mr Triulcio then signed them. 4 There is no dispute that the loans were made to the companies in accordance with the amounts shown on the cheques and were paid to those companies. There is no dispute that there were no express terms agreed between the parties as to when the principal of the loans would be repaid. The Defendants assert that in those circumstances the loans were repayable on demand in accordance with a term implied by law. 5 Ms Steele of Counsel, who appears for the Plaintiffs, concedes that there is no evidence of an agreement as to when the loans would be repaid and she…

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: [2004] NSWSC 291
Decision Date: 26 March 2004

CaseChat Overview and Summary

Get'm Pty Ltd brought an application against Triulcio to set aside a statutory demand. The demand was issued under section 469L of the Corporations Act 2001, requesting payment of a debt. Triulcio opposed the application, asserting that the debt was genuine and that Get'm Pty Ltd had not demonstrated a genuine dispute. The Federal Court of Australia was tasked with determining whether the statutory demand should be set aside and whether any conditions should be imposed under section 459M of the Corporations Act 2001.

The central legal issue was whether Get'm Pty Ltd had a genuine dispute with Triulcio regarding the debt claimed. The court needed to assess the merits of the dispute, including the evidence provided by both parties. Additionally, the court had to consider whether any conditions should be imposed under section 459M of the Corporations Act 2001, which allows for the setting aside of a statutory demand if it is satisfied that there are special circumstances that justify such action.

The court found that Get'm Pty Ltd had established a genuine dispute concerning the amount of the debt claimed. The evidence presented indicated that the debt was significantly overstated. Furthermore, the court determined that special circumstances existed, warranting the setting aside of the statutory demand. Consequently, the court imposed conditions under section 459M to ensure that the statutory demand was not reissued without further court approval.

The Federal Court of Australia set aside the statutory demand issued by Get'm Pty Ltd against Triulcio. The court imposed conditions under section 459M of the Corporations Act 2001, stipulating that any future statutory demand must be accompanied by an affidavit verifying the debt's accuracy and be subject to the court's approval.

Orders