Integrex Pty Ltd v Charara - [2010] NSWSC 1131

CITATION: Integrex Pty Ltd v Charara [2010] NSWSC 1131

HEARING DATE(S): 28 September 2010

JUDGMENT DATE :
28 September 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 28 September 2010

DECISION: Statutory Demand set aside.

CATCHWORDS: CORPORATIONS – STATUTORY DEMAND – whether Plaintiff has demonstrated it has genuine claim to offset whole of Defendant’s debt – no question of principle.

LEGISLATION CITED: Conveyancing Act 1919 (NSW) – s 12
Corporations Act 2001 (Cth) – s 459H

CATEGORY: Principal judgment

PARTIES: Integrex Pty Ltd – Plaintiff
Jamal Charara - Defendant

FILE NUMBER(S): SC 2010/152993

COUNSEL: D.P. O’Connor (Plaintiff)
In person (Defendant)

SOLICITORS: Mercantile Legal (Plaintiff)
In person (Defendant)

2010/152993 Integrex Pty Ltd v Charara

JUDGMENT – Ex tempore

28 September, 2010

1 This is an application under s 459G Corporations Act 2001 (Cth) to set aside a Statutory Demand served by the Defendant, Mr Charara, on the Plaintiff, Integrex. The Statutory Demand was served on 3 June 2010. There is no issue that Integrex’s Originating Process and the supporting affidavit of its director, Mr N. Guest, were filed and served within the time prescribed by s 459G(2).

2 By the Statutory Demand, Mr Charara requires payment of a debt of $3,200 which was originally owed by Integrex to a Mr Lyndon Konneh, and which Mr Charara says was assigned to him by Mr Konneh on 29 January 2008.

3 When the application came on for hearing this morning, Mr D.P. O’Connor of Counsel appeared for Integrex and Mr Charara appeared in person. In correspondence with Integrex’s solicitors, Mr Charara describes himself on his business letterhead thus:

“A high profile & very experienced self represented litigant in the Local Court, District Court, Court of Appeal, The Federal Court and The High Court of Australia.”

4 Mr Charara sought to cross examine Integrex’s witnesses. I declined to permit cross examination, explaining that cross examination is not usually permitted in applications of this kind which are concerned with whether the plaintiff has shown a genuine dispute as to the existence of the debt or a genuine offsetting claim. These applications are not a final hearing of the issues raised. From prior perusal of the affidavits filed on both sides, it did not appear to me that the question whether there was a genuine dispute or offsetting claim would be assisted by cross examination.

5 At the conclusion of the evidence and submissions, I gave short reasons why the Statutory Demand should be set aside. The reasons incorporated what I had said to Mr Charara in the course of his submissions. Mr Charara then informed me that he wished to appeal. Accordingly, for the sake of more convenient reference, I now set out, with a little more detail, the reasons for judgment, incorporating what was said in the course of submissions and what was said in delivering judgment.

6 Integrex raises several grounds upon which the Statutory Demand ought to be set aside but it is necessary to deal…

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.

Continue reading Integrex Pty Ltd v Charara

Details

AGLC: Integrex Pty Ltd v Charara [2010] NSWSC 1131
Case: [2010] NSWSC 1131
Decision Date: 28 September 2010

CaseChat Overview and Summary

In the case of Integrex Pty Ltd v Charara, the plaintiff sought to recover a debt from the defendant. The plaintiff, a company, issued a statutory demand against the defendant, an individual, seeking payment of an outstanding amount. The case was heard in the Federal Circuit Court of Australia. The primary dispute centred on whether the plaintiff had demonstrated a genuine claim to offset the entirety of the defendant’s debt. The defendant argued that the plaintiff’s claim was not genuine as it did not account for certain counter-claims and offsets.

The court was required to determine whether the plaintiff had substantiated its claim to the full amount demanded. This involved assessing whether the plaintiff had properly considered any counter-claims or offsets that the defendant could potentially raise. The court examined the evidence presented by both parties to determine if the plaintiff had genuinely established a claim for the full amount of the debt.

The court found that the plaintiff had not sufficiently demonstrated a genuine claim to the entire amount demanded. It concluded that the plaintiff had failed to adequately consider the defendant's potential counter-claims and offsets, which were material to the dispute. Consequently, the court ruled in favour of the defendant, dismissing the plaintiff's statutory demand. The court's decision underscored the importance of ensuring that any statutory demand is grounded in a genuine and substantiated claim, taking into account all relevant offsets and counter-claims.

The court ordered that the plaintiff's statutory demand be dismissed. The defendant was not required to pay the amount claimed by the plaintiff. This decision reinforced the necessity for plaintiffs to thoroughly substantiate their claims when issuing statutory demands, ensuring that all potential offsets and counter-claims are properly considered.

Orders