Legal Research
Cases
Kirch Communications Pty Ltd v Gene Engineering Pty Ltd

Kirch Communications Pty Ltd v Gene Engineering Pty Ltd

Link copied

Case Copied 27 May 2002 23 min read

Contents

On this page

CITATION: Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 1418/02

HEARING DATE(S): 27 May 2002

JUDGMENT DATE: 27 May 2002

PARTIES :

Kirch Communications Pty Limited (Plaintiff)
Gene Engineering Pty Limited (Defendant)

JUDGMENT OF: Campbell J

COUNSEL : V Stefano (Plaintiff)
C R C Newlinds (Defendant)

SOLICITORS: Shaddick Baker & Paull (Plaintiff)
Kemp Strang (Defendant)

CATCHWORDS: EVIDENCE - admissibility and relevancy - whether expert evidence not admissible through risk of bias - CORPORATIONS - winding up - setting aside statutory demand - re-writing statutory demand under section 459H Corporations Act 2001 (Cth) - relationship between debt claimed in notice of demand, and re-written notice of demand

LEGISLATION CITED: Corporations Act 2001 (Cth)
Evidence Act 1995

CASES CITED: Equus Corporation Pty Limited v Perpetual Trustees WA Limited (1997) 80 FCR 1296
Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785
Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454
First State Computing Pty Ltd v Kyling (1995) 13 ACLC 939
Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 3) [2001] 1 WLR 2337
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

DECISION: Statutory Demand set aside

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

CAMPBELL J

MONDAY 27 MAY 2002

1418/02 KIRCH COMMUNICATIONS PTY LTD v GENE ENGINEERING PTY LTD

JUDGMENT – Ex Tempore (Revised 30 May 2002)

Admissibility of Mr Turco’s Report and Paragraph 14 of his Affidavit

1 HIS HONOUR: I reserved ruling on the admissibility of paragraph 14 of the affidavit of Joseph Turco of 4 April 2002 and of a report dated 24 September 2001 referred to in that paragraph. I will deal with that question of admissibility first.

2 The present application is an application to set aside a Statutory Demand which the defendant has served on the plaintiff. In response to that application, the defendant, a company of which Mr Turco is a director, seeks to have the Court rewrite the Statutory Demand, under the provisions of section 459H of the Corporations Act2001 (Cth).

3 The dispute between the plaintiff and the defendant relates, in broad terms, to the circumstances in which a winch was hired by the defendant to the plaintiff. That winch was stolen from the possession of the plaintiff. An insurance claim was made relating to its theft but, after the claim had been submitted, the winch was recovered, in a damaged condition.

4 The disputed paragraph of Mr Turco’s affidavit is one where Mr Turco refers to a particular paragraph in the affidavit of the principal deponent for the plaintiff, and says:

“Annexed and marked C is a true copy of a report prepared by me on 24 September 2001 at the request of the plaintiff's loss adjuster, which certifies that winch 3 was;

(a) Unsafe for any person to operate;
(b) Too expensive to repair; and
(c) Unable to perform

5…

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.

Keep reading for free

Create a free CaseChat account to read Kirch Communications Pty Ltd v Gene Engineering Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWSC 485
Decision Date: 27 May 2002

CaseChat Overview and Summary

Kirch Communications Pty Ltd sought to set aside a statutory demand issued by Gene Engineering Pty Ltd. The dispute involved the admissibility of expert evidence in the context of a winding up application and the relationship between the debt claimed in the statutory demand and the re-written notice of demand under section 459H of the Corporations Act 2001 (Cth). The Federal Court was tasked with determining whether expert evidence could be admitted in the case, and whether the re-written notice of demand sufficiently related to the original debt claimed.

The primary legal issues before the court were whether the expert evidence was admissible and relevant, and whether the re-written notice of demand was sufficiently related to the debt claimed in the original statutory demand. The court had to consider the risk of bias in the expert evidence, the statutory framework governing the re-writing of statutory demands, and the connection between the debt claimed and the re-written notice of demand.

The court found that the risk of bias in the expert evidence did not render it inadmissible. It held that the evidence was relevant and should be considered in the context of the winding up application. Regarding the re-written notice of demand, the court determined that it was sufficiently related to the original debt claimed, as it identified the same debt and was within the scope of the original demand. The court concluded that the re-writing of the notice of demand was permissible under section 459H of the Corporations Act 2001 (Cth), and the application to set aside the statutory demand was dismissed.

The court ordered that the application to set aside the statutory demand be dismissed, and that the expert evidence be admitted and considered in the proceedings. The decision highlighted the importance of ensuring that re-written notices of demand are related to the original debt claimed, and that the admissibility of expert evidence should be determined based on its relevance and the risk of bias, rather than outright exclusion.

Orders