Kortz Ltd v Data Acquisition Pty Ltd

[2007] FCA 252

FEDERAL COURT OF AUSTRALIA

Kortz Ltd v Data Acquisition Pty Ltd [2007] FCA 252

CORPORATIONS LAW – consideration of the exercise of discretion in awarding costs in the light of the judgment in Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722.

Corporations Act 2001 (Cth)

Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722 - cited

KORTZ LTD v DATA ACQUISITION PTY LTD
QUD413 OF 2006

GREENWOOD J
2 MARCH 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD413 OF 2006

BETWEEN:	KORTZ LTD ACN 113 534 688 Plaintiff
AND:	DATA ACQUISITION PTY LTD ACN 050 209 848 Defendant

JUDGE:	GREENWOOD J
DATE OF ORDER:	2 MARCH 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The defendant pay 70% of the plaintiff’s costs of and incidental to the application to set aside a statutory demand dated 31 August 2006 and served on the plaintiff on 6 October 2006 pursuant to the provisions of the Corporations Act 2001 (Cth) identified at pages 1 and 2 of exhibit ‘RM2’ to the affidavit of Robert McInnes sworn 26 October 2006, the subject of the order of the court made on 11 December 2006.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD413 OF 2006

BETWEEN:	KORTZ LTD ACN 113 534 688 Plaintiff
AND:	DATA ACQUISITION PTY LTD ACN 050 209 848 Defendant

JUDGE:	GREENWOOD J
DATE:	2 MARCH 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 11 December 2006, I made an order that a statutory demand dated 31 August 2006 made by the defendant upon the plaintiff pursuant to the provisions of the Corporations Act 2001 (Cth) (‘the Act’) identified as pages 1 and 2 of exhibit ‘RM2’ to the affidavit of Robert McInnes sworn 26 October 2006 be set aside. I further ordered that the costs of the proceeding to set aside the statutory demand be reserved with written submissions in relation to the question of costs to be forwarded to the court for determination on the papers.

2. The plaintiff sought to set aside the demand on three grounds. 

3. First, that the demand contained a defect and substantial injustice would arise should the demand not be set aside. 

4. Secondly, apart from any question of injustice arising out of effect being given to a demand contended to be defective, the plaintiff contended that the failure to recite correctly the total amount of the debt due and payable (rather than the lesser sum reflected in the demand) constituted a failure to comply with a mandatory obligation going to the validity of the demand.  Thus, the demand ought to be set aside per se. 

5. Thirdly, the plaintiff contended that based upon the affidavit evidence of Robert McInnes, a genuine dispute subsisted between the plaintiff and the defendant as to the ‘existence of a debt to which the demand relates’ for the purposes of s 459H(1)(a) of the Act on…