New Era Installations Pty Ltd v Don Mathieson & Staff Glass Pty Ltd

[1999] FCA 475

FEDERAL COURT OF AUSTRALIA

New Era Installations Pty Ltd v Don Mathieson & Staff Glass Pty Ltd
[1999] FCA 475

CORPORATIONS LAW - application to set aside statutory demand - review of Registrar’s decision - whether review involves a hearing de novo - whether “genuine dispute” about the existence or amount of the debt to which the statutory demand relates - meaning of “genuine dispute” - agency - whether agency by estoppel - whether agency by ratification - power of Court to make costs orders on applications to set aside statutory demands, both as to costs before Court and costs before Registrar.

Corporations Law ss 459E(1), 459G(1), 459H(1)(a), 459H(3), 459H(4)(a), 459N, 1335(2)
Federal Court of Australia Act 1976 (Cth) ss 35A(5), 35A(6)

Jageev Pty Limited v Deane (Federal Court of Australia (Davies J); unreported; 15 May 1998), followed
Burdon Pty Limited v Gillford Pty Limited (Federal Court of Australia (Davies, Hill and Whitlam JJ); unreported; 21 December 1995), followed
Lindel Constructions Pty Limited v Bacic Bros Plastering Pty Limited (1996) 19 ACSR 690, cited
Trinity Properties Pty Limited v Gilles (1996) 20 ACSR 22, cited
Petersen v Moloney (1951) 84 CLR 91, applied

NEW ERA INSTALLATIONS PTY LTD v DON MATHIESON & STAFF GLASS PTY LTD

NG 3025 OF 1998

KATZ J
SYDNEY
21 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG3025 OF 1998

BETWEEN:	NEW ERA INSTALLATIONS PTY LTD Applicant
AND:	DON MATHIESON & STAFF GLASS PTY LTD Respondent
JUDGE:	KATZ J
DATE OF ORDER:	21 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The amount of the statutory demand be varied to $79,317.80;

2.   The demand, as so varied, be declared to have had effect as from when the demand was served on the applicant; and

3.   The applicant pay four-fifths of the respondent’s costs of the proceedings before the Court and the Registrar.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG3025 OF 1998

BETWEEN:

NEW ERA INSTALLATIONS PTY LTD
Applicant

AND:

DON MATHIESON & STAFF GLASS PTY LTD

Respondent

JUDGE:	KATZ J
DATE:	21 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 3 July 1998, a Registrar determined an application which had been made to this Court by New Era Installations Pty Limited (to which company it is convenient to refer hereafter as “the debtor”). The application had been made under subs 459G(1) of the Corporations Law (“the Law”) and was for an order setting aside a statutory demand which had been served on the debtor under subs 459E(1) of the Law by Don Mathieson & Staff Glass Pty Limited (to which company it is convenient to refer hereafter as “the creditor”). The statutory demand, which had been served on the debtor in January of 1998, had specified a then-payable debt owing to the creditor of $97,678.70. The Registrar expressed herself as satisfied that, of the sum…