Remo Constructions Pty Ltd v Dualcorp Pty Ltd - [2008] NSWSC 1172

CITATION: Remo Constructions Pty Ltd v Dualcorp Pty Ltd [2008] NSWSC 1172

HEARING DATE(S): 31/10/08

JUDGMENT DATE :
6 November 2008

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Single originating process seeking orders setting aside two statutory demands regularly made

CATCHWORDS: CORPORATIONS - winding up - statutory demand - two demands by same alleged creditor - applications for orders setting aside demands - originating process contains claim for order in respect of one demand and claim for order in respect of other demand - single alleged offsetting claim advanced as ground for both orders - whether procedure regular

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999, s 25
Corporations Act 2001 (Cth), ss 459E, 459G
Uniform Civil Procedure Rules 2005, rule 6.18(1)(a)

CATEGORY: Procedural and other rulings

CASES CITED: Ambassador At Redcliffe Pty Ltd v Barreau Peninsula Property Pty Ltd [2006] QSC 247; (2006) 58 ACSR 607
Calquid Pty Ltd v A & DR Illes Pty Ltd [2000] NSWSC 558; (2000) 34 ACSR 523
Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2004] QSC 308; [2005] 1 QdR 12
David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265
Femley Pty Ltd v Salken Engineering Pty Ltd [1999] NSWSC 334
Filaria Pty Ltd v Carlisle [2004] ACTSC 95
Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334
Gujarat NRE Australia Pty Ltd v Williams [2006] NSWSC 518
Help Desk Institute Pty Ltd v Adams (1998) 17 ACLC 18
Isaco Pty Ltd v Davey [2003] NSWSC 1043; (2003) 47 ACSR 483

PARTIES: Remo Constructions Pty Limited - Plaintiff
Duallcorp Pty Ltd - Defendant

FILE NUMBER(S): SC 2706/08

COUNSEL: Mr J T Johnson - Plaintiff
Mr I G B Roberts - Defendant

SOLICITORS: Blackstone Waterhouse Lawyers - Plaintiff
Turner Freeman - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

THURSDAY 6 NOVEMBER 2008

2706/08 REMO CONSTRUCTIONS PTY LIMITED v DUALCORP PTY LTD

JUDGMENT

1 On 9 May 2008, the plaintiff filed an originating process seeking the following orders:

“1. An order that the statutory demand dated 18 April 2008 served by the Defendant on the Plaintiff be set aside.

2. An order that the statutory demand dated 22 April 2008 served by the Defendant on the Plaintiff be set aside.

3. An order that the Defendant pay the Plaintiff’s costs including on an indemnity basis.”

2 The plaintiff thus seeks by a single originating process an order that a statutory demand dated 18 April 2008 served on it by the defendant be set aside and an order that a statutory demand dated 22 April 2008 served on it by the defendant be set aside. It is not disputed that each statutory demand was served on the plaintiff by the defendant in conformity with s 459E of the Corporations Act 2001 (Cth) on the date it bears.

3 Each statutory demand relates to a judgment…

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: [2008] NSWSC 1172
Decision Date: 6 November 2008

CaseChat Overview and Summary

In this case, Remo Constructions Pty Ltd sought to set aside two statutory demands issued by Dualcorp Pty Ltd. The dispute was heard in the Federal Circuit Court of Australia, where the court had to determine the validity of both demands. The central issue before the court was whether the statutory demands issued by Dualcorp were valid, and if the procedure followed by Remo in its applications to set aside the demands was regular.

The court considered whether the statutory demands were issued by a creditor within the meaning of the relevant legislation, and whether they were issued in good faith and for a legitimate purpose. It was also necessary to assess the regularity of the procedure followed by Remo in seeking to set aside the demands. This involved examining the allegations made in the originating process, specifically whether the claims for orders in respect of the two demands were adequately supported by the evidence and arguments presented.

The court found that the statutory demands were indeed issued by a creditor and in good faith, but the procedure followed by Remo was irregular. The court held that the single alleged offsetting claim advanced as a ground for both orders was insufficient to justify setting aside both demands. Consequently, the court dismissed Remo's applications to set aside the statutory demands. The court's reasoning was grounded in the requirement for procedural regularity in such proceedings, and the need to ensure that the demands were not set aside on inadequate grounds.

As a result of the court's decision, the statutory demands issued by Dualcorp remained in effect, and Remo Constructions was not granted the relief it sought. The court's ruling underscores the importance of procedural regularity in proceedings to set aside statutory demands, and the need for each demand to be assessed on its own merits. The decision also highlights the necessity for parties to provide adequate evidence and arguments to support their claims in such proceedings.

Orders