In the matter of Anvil Build Pty Ltd

[2022] NSWSC 1182

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Anvil Build Pty Ltd [2022] NSWSC 1182
Hearing dates:	On the papers
Decision date:	02 September 2022
Jurisdiction:	Equity - Corporations List
Before:	Hammerschlag CJ in Equity
Decision:	Costs – No issue of principle
Legislation Cited:	Corporations Act 2001 (Cth)
Category:	Costs
Parties:	Anvil Build Pty Ltd - Plaintiff Dynabuild Project Services Pty Ltd - Defendant
Representation:	Counsel: Solicitors: Kells - Plaintiff Evangelos Patakas & Associates - Defendant
File Number(s):	2022/178986

JUDGMENT

1. HIS HONOUR:   On 30 May 2022 the defendant served a statutory demand dated 24 May 2022 on the plaintiff for $366,383.13 based on a judgment which it had obtained against the plaintiff for project management services rendered by the defendant.

2. On 6 June 2022 the plaintiff informed the defendant that it had become aware that the defendant had received unauthorised payments from numerous sub-contractors working on projects, the subject of their arrangement, and that it had an off-setting claim exceeding the amount of the demand and would move under the relevant provisions of the Corporations Act 2001 (Cth) for an order setting it aside. The plaintiff requested that the demand be withdrawn. The defendant declined to withdraw the demand.

3. On 15 June 2022 the defendant informed the plaintiff that any proceedings would be opposed, and costs sought.

4. The plaintiff commenced these proceedings (to set aside the demand) by Originating Process filed 20 June 2022.

5. On 29 June 2022 the Registrar ordered the defendant to serve all evidence by 18 July 2022. The defendant did not do so. On 25 July the defendant ordered it to serve any evidence by 8 August 2022. Again it did not do so. It apparently changed solicitors.

6. On 15 August 2022 I extended the time for it to serve its evidence to 24 August 2022, with a guillotine order and stood the matter over to 29 August 2022. On that occasion the defendant capitulated and agreed to an order that the statutory demand be set aside but resisted an order for costs.

7. I received a one page submission on costs from both sides and have dealt with costs on the papers.

8. The thrust of the defendant’s submission is that it did not know of the full circumstances surrounding the assertion that it had received secret commissions and it withdrew the demand once its new solicitors came on the record and had the opportunity to consider the plaintiff’s claim. It says that its concession to set aside the demand is without admission and that it denies the plaintiff’s claims which will be defended if and when they are prosecuted.

9. The defendant’s submission is unpersuasive.

10. As early as 6 June 2022 the plaintiff informed the defendant of the off-setting claim but the defendant stuck to its demand. It also failed to serve evidence in accordance with the Court’s directions and then gave up. There is no reason why the court should depart from the usual position that costs follow the event.

11. The Court makes the following orders:

1. The defendant’s statutory demand served on the plaintiff on 30 May 2022 is set aside.

2. The defendant is to pay the plaintiff’s costs of the proceedings.

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Decision last updated: 02 September 2022