Keith Soames Real Estate (Thornleigh) v Grabovsky - [2009] NSWSC 866

CITATION: Keith Soames Real Estate (Thornleigh) v Grabovsky [2009] NSWSC 866

HEARING DATE(S): 27/07/09

JUDGMENT DATE :
27 July 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 27 July 2009

DECISION: 1. Order that the statutory demand dated 27 May 2009 served on the plaintiff be set aside; 2. Order that the defendant pay the plaintiff's costs and that the costs be assessed on the ordinary basis up to and including 10 June 2009 and on the indemnity basis thereafter.

CATCHWORDS: CORPORATIONS – statutory demand – application to set aside a statutory demand – demand for unliquidated damages not yet suffered for no articulated cause of action – no debt nor any other amount due and payable – statutory demand set aside – indemnity costs awarded

LEGISLATION CITED: Corporations Act 2001 (Cth)
Residential Tenancies Act 1987 (NSW)

CASES CITED: Alexander v Ajax Insurance Co Ltd [1956] VLR 436
Box Valley Pty Ltd v Kidd [2006] NSWCA 26; (2006) 24 ACLC 471
Polaroid Australia Pty Ltd v Minicomp Pty Ltd (1998) 16 ACLC 529

TEXTS CITED: Farid Assaf, Statutory Demands: Law and Practice, (2008)

PARTIES: Keith Soames Real Estate (Thornleigh) Pty Ltd
v
Inna Grabovsky

FILE NUMBER(S): SC 3198/09

COUNSEL: Plaintiff: H Woods
Defendant: Mr I Grabovsky

SOLICITORS: Plaintiff: Michael Flaherty Solicitor
Defendant: n/a

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

WHITE J

Monday, 27 July 2009

3198/09 Keith Soames Real Estate (Thornleigh) Pty Ltd v Inna Grabovsky

JUDGMENT

1 HIS HONOUR: This is an application under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand. The statutory demand was served on the plaintiff on 28 May 2009. It was accompanied by an affidavit of the defendant in the prescribed form.

2 The defendant deposed that the plaintiff owes her the sum of $15,920, being an amount of what she described as a debt set out in the schedule to the demand. That sum was made up as follows:

1. Difference between the current rental payment of A$270-00 per week and the new rental payment of A$450-00 per week for the period of 52 weeks.	A$9,360-00 Amount due and payable in full.
2. Relocation expenses	A$2,000-00 Amount due and payable in full.
3. Rental bond	A$1,800-00 Amount due and payable in full.
4. Expenses associated with change of address	A$500-00 Amount due and payable in full.
5. Storage expenses (3 months)	A$1,200-00 Amount due and payable in full.
6. Travel expenses (52 weeks)	A$1,060-00 Amount due and payable in full.
TOTAL DUE AND PAYABLE NOW	A$15,920-00

3 At the time of service of the demand and accompanying affidavit, the plaintiff was also served with a further affidavit of the defendant, sworn on 27 May 2009. That affidavit disclosed the basis upon which the defendant claims to be entitled to the sum of $15,920 from the plaintiff.

4 The plaintiff is a real estate agent. The defendant is the lessee of a home unit. The plaintiff has…

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: [2009] NSWSC 866
Decision Date: 27 July 2009

CaseChat Overview and Summary

The case of Keith Soames Real Estate (Thornleigh) v Grabovsky involved a statutory demand made by Keith Soames Real Estate (Thornleigh) against Grabovsky, seeking a debt for unliquidated damages. The dispute was heard in the Federal Circuit Court of Australia. The respondent, Grabovsky, applied to set aside the statutory demand, arguing that it was invalid due to the absence of a debt or any other amount due and payable.

The central legal issues before the court were whether the statutory demand was valid and, if not, whether it should be set aside. Specifically, the court needed to determine whether the demand for unliquidated damages, which had not yet been suffered and were not based on an articulated cause of action, constituted a debt or other amount due and payable under the Corporations Act. Additionally, the court had to consider whether there were grounds to set aside the statutory demand and whether the applicant was entitled to indemnity costs.

In delivering the judgment, the court found that the statutory demand was not valid as it did not specify a debt or other amount due and payable. The demand for unliquidated damages that had not yet been suffered and lacked a clear cause of action did not meet the statutory requirements. Consequently, the court set aside the statutory demand and ordered that the applicant be awarded indemnity costs. This decision underscores the importance of ensuring that statutory demands comply with the strict requirements of the Corporations Act.

Orders