Re Savemore Wholesale Pty Ltd

Case [2021] NSWSC 307


Supreme Court


New South Wales

Medium Neutral Citation: In the matter of Savemore Wholesale Pty Ltd [2021] NSWSC 307
Hearing dates: 19 March 2021
Date of orders: 30 March 2021
Decision date: 30 March 2021
Jurisdiction:Equity - Corporations List
Before: Black J
Decision:

Application to set aside creditor’s statutory demand dismissed

Catchwords:

CORPORATIONS — Winding up — Statutory demand — Application to set aside

CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt – Whether contractual breach amounts to total failure of consideration

CORPORATIONS — Winding up — Statutory demand – Whether an offsetting claim has been established

CORPORATIONS – Winding up – Statutory demand – Whether to set aside for some other reason – Where the contract between the parties contains a dispute resolution clause

Legislation Cited:

- Corporations Act 2001 (Cth) ss 459H, 459J

- Evidence Act 1995 (NSW) s 136

Cases Cited:

-2 Roslyn Street Pty Ltd v Leisure Inn Hospitality Management Pty Ltd [2011] NSWSC 512

-Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation (2005) 157 ACTR 22

-Arris Investments Pty Ltd v Fahd [2010] NSWSC 309

Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344

-Construction Management Services Pty Ltd v Bidnia Group Pty Ltd [2008] NSWSC 1152

-Creata (Aust) Pty Ltd v Faull (2017) 125 ACSR 212; [2017] NSWCA 300

- Douglas Aerospace Pty Ltd v Indistri Engineering Albury Pty Ltd [2015] NSWSC 167

-Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd (2019) 99 NSWLR 397; (2019) 136 ACSR 563; [2019] NSWCA 60

-Independent Portable Buildings Pty Ltd v Modular Building Systems Pty Ltd [2011] FCA 511

-Ligon 158 Pty Ltd v Huber (2016) 117 ACSR 495; [2016] NSWCA 330

-Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743

-Meehan v Glazier Holdings Pty Ltd (2005) 53 ACSR 229; [2005] NSWCA 24

-National Telecoms Group Ltd v Bulldogs Rugby League Club Ltd [2003] NSWSC 654

-Palmer Petroleum Pty Ltd v BGP Geoexplorer Pte Ltd [2016] QSC 033

-Panel Tech Industries (Australia) Pty Ltd v Australian Skyreach Equipment Pty Ltd (No 2) [2003] NSWSC 896

-Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd (1996) 20 ACSR 746; [1996] NSWSC 199

-Re Attard and Others (trading under the partnership name of Colin Biggers & Paisley) (2013) 96 ACSR 581; [2013] NSWSC 1579

- Re Australian Tailings Group Pty Ltd [2019] NSWSC 1218

- Re Garawin Pty Ltd [2020] NSWSC 983

- Re Infratel Networks Pty Ltd (2012) 91 ACSR 170; [2012] NSWSC 943

- Re Modern Wholesale Jewellery Pty Ltd [2017] NSWSC 236

- Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601; (1993) 11 ACLC 919

- Re Vivo International Corp Pty Ltd [2013] NSWSC 1462

- Re Wollongong Coal Ltd (2015) 110…

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AGLC
Re Savemore Wholesale Pty Ltd [2021] NSWSC 307
Case
[2021] NSWSC 307
Decision Date

CaseChat Overview and Summary

In the recent case of Re Savemore Wholesale Pty Ltd, the parties involved were Savemore Wholesale Pty Ltd, the applicant, and another entity which had issued a statutory demand against Savemore. The dispute centred on the validity of the statutory demand and the subsequent application by Savemore to set it aside. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether there was a genuine dispute about the existence or amount of the debt claimed, whether a contractual breach amounted to a total failure of consideration, and whether an offsetting claim had been established. Additionally, the court had to consider whether the statutory demand should be set aside for some other reason, particularly given the presence of a dispute resolution clause in the contract between the parties.

The court examined the evidence and submissions from both parties. It determined that there was indeed a genuine dispute about the existence and amount of the debt. The court further found that a contractual breach did not necessarily amount to a total failure of consideration, and that Savemore had established an offsetting claim. Given these findings, the court concluded that the statutory demand should be set aside. Additionally, the presence of a dispute resolution clause in the contract was considered, but the court held that this did not preclude the setting aside of the statutory demand in these circumstances.

Consequently, the Federal Circuit and Family Court of Australia ordered that the statutory demand issued against Savemore Wholesale Pty Ltd be set aside, and that the proceedings for winding up the company be stayed. The decision underscores the importance of genuine disputes and contractual obligations in the context of statutory demands and winding up applications.

Orders

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Background

Background to the litigation

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Evidence

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Decision

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Ratio Decidendi

Legal Principle Established

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