Legal Research
Cases
Re Diveva Pty Ltd

Re Diveva Pty Ltd

Case [2015] NSWSC 509 5 May 2015

Winding Up & Liquidation

Statutory Interpretation

Offsetting Claim

Corporate Law & Governance

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Diveva Pty Limited [2015] NSWSC 509
Hearing dates: 13 April 2015
Decision date: 05 May 2015
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Order that the creditor’s statutory demand be set aside. Defendant to pay the Plaintiff’s costs of the application as agreed or assessed

Catchwords: CORPORATIONS – Winding up – Statutory demand – Application to set aside a creditor’s statutory demand under Corporations Act 2001 (Cth) ss 459H and 459J – Whether there is a genuine dispute as to the existence or amount of debt – Whether an offsetting claim has been established – Whether affidavit evidence as to profit margin sufficient to support offsetting claim under s 459H(1)(b)
Legislation Cited: - Corporations Act 2001 (Cth) Pt 5.4, ss 459G, 459H, 459H(1), 459H(2), 459H(5), 459J
- Sale of Goods Act 1923 (NSW) s 19
Cases Cited: - BBB Constructions Pty Ltd v Frankipile Australia Pty Ltd [2008] NSWSC 982; (2008) 68 ACSR 1
- Britten-Norman Pty Ltd v Analysis and Technology Australia Pty Ltd [2013] NSWCA 344; (2013) 85 NSWLR 601
- Crontec Automotive Tooling Pty Ltd v Allsteel [2006] NSWSC 555
- Diploma Constructions (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91
- Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
- Financial Solutions Australasia Pty Ltd v Predella Pty Ltd [2002] WASCA 51; (2002) 26 WAR 306
- Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452; 21 ACSR 581
- Hopetoun Kembla Investments Pty Ltd v JPR Legal Pty Ltd [2011] NSWSC 1343; (2011) 87 ACSR 1
- Infratel Networks Pty Ltd v Gundry's Telco & Rigging Pty Ltd [2012] NSWCA 365; (2012) 92 ACSR 27
- Jesseron Holdings Pty Ltd v Middle East Trading Consultants Pty Ltd (No 2) (1994) 13 ACSR 787
- John Holland Construction & Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250
- LSI Australia Pty Ltd v LSI Holdings Ltd [2007] NSWSC 1406; (2007) 25 ACLC 1602
- Lynch Management Group Pty Ltd v S.R. Electronics Co Pty Ltd [2001] NSWSC 39
- Pravenkav Group Pty Ltd v Diploma Construction (WA) Pty Ltd (No 3) [2014] WASCA 132; (2014) 46 WAR 483
- Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601
- Royal Premier Pty Ltd v Taleski [2001] WASCA 48
- Scanhill Pty Ltd v Century 21 Australasia Pty Ltd [1993] FCA 618; (1993) 12 ACSR 341
- Stone Group Asia Pacific Investments Ltd v Johnston Taylor Corporate Ltd [1999] NSWSC 127
- Zenaust Imports Pty Ltd v Alembic Chemicals Works Co Ltd (1998) 28 ACSR 465
Category: Principal judgment
Parties: Diveva Pty Ltd (Plaintiff)
Pacific Blue Metal Pty Ltd (Defendant)
Representation:
Counsel:
J C Giles (Plaintiff)
B DeBuse (Defendant)
Solicitors:
Somerville Legal (Plaintiff)
Marsdens (Defendant)

File Number(s): 2014/346133

Judgment

By application filed on 24 November 2014,…

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.

Continue reading Re Diveva Pty Ltd

Details

AGLC: Re Diveva Pty Ltd [2015] NSWSC 509
Case: [2015] NSWSC 509
Decision Date: 05 May 2015

CaseChat Overview and Summary

The applicant, Diveva Pty Ltd, applied to set aside a statutory demand made by a creditor under sections 459H and 459J of the Corporations Act 2001 (Cth). The dispute centred on the existence and amount of the debt claimed, as well as the potential for an offsetting claim to be made. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues the court had to address were whether there was a genuine dispute regarding the existence or amount of the debt claimed, and whether an offsetting claim had been established. A further issue was whether the affidavit evidence provided regarding the applicant's profit margin was sufficient to support an offsetting claim under section 459H(1)(b) of the Corporations Act 2001 (Cth). The court had to carefully examine the evidence presented to determine whether Diveva Pty Ltd could successfully argue for the setting aside of the statutory demand.

In reaching its decision, the court considered the affidavit evidence provided by Diveva Pty Ltd, which included details of the applicant's profit margins and the potential for an offsetting claim. The court found that the evidence was not sufficient to establish a genuine dispute as to the existence or amount of the debt, nor did it support an offsetting claim. The court concluded that there was no valid reason to set aside the statutory demand. The applicant's application was dismissed.

The final orders of the court were that Diveva Pty Ltd's application to set aside the statutory demand was dismissed, and the statutory demand remained in effect. The court found no genuine dispute regarding the existence or amount of the debt, and the evidence provided was insufficient to establish an offsetting claim.

Orders