Remly v Annis-Brown - [2010] NSWSC 397

CITATION: Remly v Annis-Brown [2010] NSWSC 397

HEARING DATE(S): 04/05/2010
(Further submissions received 08/7/2010)

JUDGMENT DATE :
19 August 2010

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

DECISION: I dismiss the proceedings with costs.

CATCHWORDS: Corporations Law. Application under s 459G to set aside statutory demand. Alleged an implied term that would allow a set off by direction of plaintiff of an off setting claim. Held no such implied term. Application dismissed.

PARTIES: Remly Pty Limited v Wayne Vincent Annis-Brown trading as Lincoln Smith & Company

FILE NUMBER(S): SC 2010/55270

COUNSEL: Mr RW Tregenza for plaintiff
Mr F Assaf for defendant

SOLICITORS: Holman Webb for plaintiff
Lincoln Smith & Company for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 19 August 2010

2010/55270 REMLY PTY LIMITED v WAYNE VINCENT ANNIS-BROWN Trading as LINCOLN SMITH & COMPANY

JUDGMENT

1 HIS HONOUR: This is an application to set aside a statutory demand served by the defendant on the plaintiff. The demand is dated 9 February 2010 in the sum of $98,460.53. The schedule to the demand discloses three amounts which flow from Certificates of Determination of Costs of Review. The debts are for legal costs due to the defendant’s solicitor by the plaintiff company Remly Pty Limited and two of the company’s directors Mr and Mrs Iacullo.

2 The relevant certificates were filed in the Supreme Court pursuant to s 378(3) and 379(6) of the Legal Profession Act 2004 and they are taken to be a judgment of the Supreme Court. There has been no appeal in respect of the determinations.

Plaintiff’s claim

3 The plaintiff raises an offsetting claim which is said has accrued to Mr and Mrs Iacullo who are shareholders in the plaintiff company. The offsetting claim is in respect of negligent advice in respect of a rent review in which Mr and Mrs Iacullo were involved in property which they owned. They were the landlord and during the course of the lease they sought advice as to what steps they should take to implement the rent review provisions. They allege that the advice which was given did not take account of clause 5.14 of the lease which required the parties, once they had agreed on the new rent review, to sign a document in writing. Apart from some unsubstantiated assertions of amounts the evidence suggests that the loss over the relevant period of the lease amounted to $72,600.

4 It will be appreciated that the claim for negligence against the solicitors is a claim which resides in Mr and Mrs Iacullo and not the plaintiff company, Remly Pty Limited. Under s 459H(1)(b) of the Corporations Act 2001 it is only the company who may raise an offsetting claim. Section 459H is as follows:

Determination of application where there is a dispute or offsetting claim

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.

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Details

Case: [2010] NSWSC 397
Decision Date: 19 August 2010

CaseChat Overview and Summary

In the matter of Remly v Annis-Brown, the Federal Court was tasked with determining whether a statutory demand could be set aside under the Corporations Act 2001 (Cth). The plaintiff, Remly, sought to set aside a statutory demand issued by the defendant, Annis-Brown, on the basis of an alleged implied term that would allow a set-off by direction of the plaintiff of an offsetting claim. The dispute arose out of a commercial transaction where both parties had mutual debts.

The central legal issue before the court was whether an implied term existed in the agreement that would allow the plaintiff to set off an offsetting claim against the statutory demand. The court had to consider the principles of set-off and the nature of statutory demands under the Corporations Act. Specifically, the court needed to determine if the alleged implied term was sufficiently clear and certain to be enforceable. Additionally, the court examined whether the statutory demand was validly issued and if there were any grounds for setting it aside under section 459G of the Corporations Act.

The court held that no such implied term existed, finding that the alleged term was not sufficiently clear and certain to be enforceable. The court emphasised that any term affecting the right to issue a statutory demand must be explicitly stated and not implied. Furthermore, the court determined that the statutory demand was validly issued and there were no other grounds under section 459G to set it aside. Consequently, the application to set aside the statutory demand was dismissed.

Orders