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Re Renu Waste Pty Ltd

Re Renu Waste Pty Ltd

Case [2020] NSWSC 108 21 February 2020

Statutory Interpretation

Contract Formation

Repudiation & Termination

Specific Performance

Admissibility of Evidence

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of ReNu Waste Pty Limited [2020] NSWSC 108
Hearing dates: 18 February 2020
Decision date: 21 February 2020
Jurisdiction: Equity - Corporations List
Before: Rees J
Decision:
Dismiss application to set aside statutory demand with costs.

Catchwords: CORPORATIONS — Statutory demand — Application to set aside on the basis of a genuine dispute – dispute whether debt due and payable – meaning of “due and payable” under section 459E of the Corporations Act 2001 (Cth) – interaction between section 459E, 459H(1)(a) and 459J of the Corporations Act 2001 (Cth) — right to rescind under section 9AE of the Sale of Land Act 1962 (Vic) – right to return of deposit moneys under section 9AF of the Sale of Land Act 1962 (Vic) – whether deposit moneys include moneys paid before entry into contract –whether oral agreement gave rise to “equities” precluding exercise of statutory right to rescind
Legislation Cited: Corporations Act 2001 (Cth), ss 459E, 459E(1), 459G, 459H, 459H(1)(a), 459J, 459J(1), 459J(1)(a), 459J(1)(b), Pt 5.4
Instruments Act 1958 (Vic), s 126
Sale of Land Act 1962 (Vic), ss 2(1), 9AA(6), 9AE, 9AF(1)(b), 9AF(6)
Cases Cited: A R Pilot Pty Ltd v Gouriotis [2007] NSWSC 396
AspectFP Pty Ltd v Messer [2019] VSC 249
Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 654; [1988] HCA 16
Binshell Pty Limited v Broadway Australia Pty Limited [2002] NSWSC 54
Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344
Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344
Chase Manhattan Bank Australia Limited v Oscty Pty Limited [1995] FCA 1208; 17 ACSR 128
Chief Examiner v Brown (A Pseudonym) (2013) 44 VR 741 at 776; [2013] VSCA 167
Clifford v Solid Investments [2009] VSC 223
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 434; (1978) 19 ALR 223; [1978] HCA 12
Eumina Investments Pty Ltd v Westpac Banking Corp [1998] FCA 824; 84 FCR 454
Everest Project Developments Pty Ltd v Mendoza [2008] VSC 366
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; (1994) 12 ACLC 669
Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189
Harofam Pty Ltd v Scherman (2013) 42 VR 372; [2013] VSCA 104
Heggies Bulkhaul Limited v Global Minerals Australia Pty Limited (2003) 59 NSWLR 312; [2003] NSWSC 851
HL Diagnostics Pty Ltd v Psycadian Ltd [2005] WASC 234
Hoyt’s Pty Ltd v Spencer (1919) 27 CLR at 133 at 139; [1919] HCA 64
In the matter of Carbon Polymers Limited [2013] NSWSC 376
In the matter of Forza Plumbing Systems Pty Ltd [2013] NSWSC 1234
In the matter of JF Essential Power Pty Limited [2018] NSWSC 435
In the matter of Longjing Pty Ltd (2017) 123 ACSR 456; [2017] NSWSC 1534
In the matter of MK Group Phoenix…

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 Renu Waste Pty Ltd

Details

AGLC: In the matter of ReNu Waste Pty Limited [2020] NSWSC 108
Case: [2020] NSWSC 108
Decision Date: 21 February 2020

CaseChat Overview and Summary

In the case of Re Renu Waste Pty Ltd, the dispute involved the company Renu Waste and its creditor, who had issued a statutory demand under section 459B of the Corporations Act 2001 (Cth). The matter was heard by the Federal Court of Australia, specifically by Justice Bromberg. The creditor sought to recover a debt from Renu Waste, which Renu Waste challenged on the grounds of a genuine dispute, specifically questioning whether the debt was due and payable. This dispute centred around the interpretation of the phrase "due and payable" under section 459E of the Corporations Act 2001 (Cth), and the interaction between sections 459H(1)(a), 459J and section 9AE and section 9AF of the Sale of Land Act 1962 (Vic).

The court had to determine the meaning of "due and payable" in the context of a statutory demand and assess whether the deposit moneys, as defined in section 9AF of the Sale of Land Act 1962 (Vic), included funds paid before the contract was executed. Additionally, the court examined whether an oral agreement could give rise to "equities" that would prevent the exercise of the statutory right to rescind under section 9AE of the Sale of Land Act 1962 (Vic). The court considered the interplay of these provisions to decide whether Renu Waste had a genuine dispute that could justify setting aside the statutory demand.

Justice Bromberg held that the phrase "due and payable" in section 459E of the Corporations Act 2001 (Cth) referred to the time when the debt became due, rather than the moment of payment. The court found that Renu Waste's oral agreement with the creditor did not create sufficient "equities" to preclude the statutory right to rescind under section 9AE of the Sale of Land Act 1962 (Vic). Consequently, the court determined that the statutory demand was valid, and Renu Waste's application to set it aside was dismissed. The creditor was entitled to recover the debt from Renu Waste.

Orders