Raasay Pty Ltd v Scapa Flow Pty Ltd

[1998] FCA 61

FEDERAL COURT OF AUSTRALIA

CORPORATIONS - notice of demand - application to set aside - genuine dispute - off-setting claim

Corporations Law ss 459G,459H,459L, Federal Court Act s18AB

Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ASCR 362

Chadwick Industries South Coast Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37

JSW Parts Pty Ltd v Dacaro Pty Ltd, (Federal Court of Australia, unreported, Finkelstein J, 11 August 1997)

Spencer Constructions Pty Ltd v G and M Aldridge Proprietary Limited (1997) 147 ALR 444

Vehicle Wash Systems Pty Ltd v Mark VII Equipment VII Equipment Inc (Federal Court of Australia, unreported, Finkelstein J, 19 December 1997)

Amalgamated Investment and Property Company v Texas Commerce International Bank Limited (1982) Q.B.84

Stuart Miller v Custom Credit (1986) 4 ACLC 105

The Indian Grace (1996) 2 Lloyds Reports 12

RAASAY PTY LIMITED v SCAPA FLOW PTY LIMITED

TG 3015 of 1997

Judicial Registrar Ryan
Hobart
4 February 1998

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 3015  of   1997

BETWEEN:	RAASAY PTY LIMITED APPLICANT
AND:	SCAPA FLOW PTY LIMITED RESPONDENT
JUDICIAL REGISTRAR:		RYAN
DATE OF ORDER:		4 FEBRUARY 1998
WHERE MADE:		HOBART

THE COURT ORDERS THAT:

1. the application be granted and the statutory demand set aside

2. the respondent pay the applicant’s costs of the application

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

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 3015 of 1997

BETWEEN:	RAASAY PTY LIMITED APPLICANT
AND:	SCAPA FLOW PTY LIMITED RESPONDENT

JUDICIAL REGISTRAR:	RYAN
DATE:	4 FEBRUARY 1998
PLACE:	HOBART

REASONS FOR JUDGMENT

(Delivered ex tempore and revised from the transcript)

This is an application to set aside a statutory demand. If the demand is not set aside, the respondent, Scapa Flow Pty Limited, will be entitled to move to have the applicant, Raasay Proprietary Limited, wound up in insolvency and rely on the demand to establish that insolvency.

Before the hearing began this morning I raised with counsel a concern I held that the power of a Judicial Registrar to hear the application was less than clear on the basis of subclause (a) of section 18AB(1)(A) of the Federal Court Act. After submissions from counsel I proceeded on the basis that I have jurisdiction in that the application falls under section 18AB(1)A but not under the exceptions in subparagraph (a) of the section.

The respondent claims a debt of $147,282 - I will retract from that....although the statutory demand was not put to the court, I understand that the respondent claims a debt of $147,282.82, an amount recorded by the applicant as a loan from the respondent. The applicant contends the respondent is estopped from claiming the sum demanded, the debt, or alternatively that the applicant is entitled to offset an amount recorded as a debt to the law firm of partners originally known as Bushby Taylor and Griffiths and trading as Archer Bushby, (the partnership).

The applicant is…