In the matter of Xton Group Pty Limited

The case before the court involved Xton Group Pty Limited, which had issued a statutory demand against another party. The dispute centred on whether the demand should be set aside, given that it was made for amounts allegedly due for building work. The Plaintiff argued that the building work in question was defective and was supported by contemporaneous evidence. The Defendant, however, did not appear or lead evidence in response. The court was tasked with determining whether the statutory demand should be set aside and, if so, whether an order for indemnity costs should be made against the Defendant, given the substantial evidence for setting aside the demand and the Defendant's failure to engage in the proceedings.

The primary legal issues before the court were whether the statutory demand was valid and enforceable and, if not, whether the Defendant should be ordered to pay the Plaintiff's costs on an indemnity basis. The court had to consider the evidence provided by the Plaintiff regarding the defective building work and whether this evidence was sufficient to support setting aside the demand. Additionally, the court needed to assess the Defendant's failure to participate in the proceedings and the impact of this on the costs order.

The court found that the evidence provided by the Plaintiff was substantial and known to the Defendant, yet the Defendant chose not to appear or lead evidence in response. This lack of engagement by the Defendant was deemed significant, particularly given the strength of the Plaintiff's case. The court concluded that the statutory demand should be set aside and that the Defendant's failure to participate warranted an order for indemnity costs. The court held that the Defendant should bear the costs of the proceedings on an indemnity basis, reflecting the substantial and known nature of the Plaintiff's evidence and the Defendant's decision not to engage in the proceedings.

In its final orders, the court set aside the statutory demand issued by Xton Group Pty Limited and ordered that the Defendant pay the Plaintiff's costs of the proceedings on an indemnity basis. This decision underscored the importance of engagement in legal proceedings and the potential consequences of failing to do so, particularly when the opposing party's case is well-founded and supported by substantial evidence.