Scott v Nationwide News Pty Ltd - [2005] NSWSC 169

CITATION:
Di Francesca Holdings P/L v Hatziplis Holdings P/L [2005] NSWSC 169

HEARING DATE(S): 25/02/05

JUDGMENT DATE :

25 February 2005

JUDGMENT OF:
White J

DECISION:
1. Set aside the Statutory Demand; 2. Order made in terms of para 1 of section A of the Originating Process; 3. Defendant to pay the plaintiff's costs of the application; 4.Exhibits may be returned after 28 days.

CATCHWORDS:
CORPORATIONS - Application to set aside Statutory Demand - Whether genuine dispute as to liability for debt - Whether genuine offsetting claim by way of counter claim, set-off or cross demand - Potential available relief - Counter claim able to be quantified in monetary terms.

LEGISLATION CITED:
Corporations Act 2001 (Cth)
Retail Leases Act 1994 (NSW)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Supreme Court Act 1970 (NSW)

CASES CITED:
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; 12 ACLC 669
Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601
Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411
Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NsWSC 743
Elm Financial Services v MacDougall [2004] NSWSC 560
Greywinter Property Pty Limited v Gas and Fuel Superannuation Fund (1996) 70 FCR 452
Process Machinery Australia Pty Limited v ACN 057 262 590 Pty Limited [2002] NSWSC 45
POS Media v B Family (2003) 21 ACLC 533
Tokich Holdings Pty Limited v Sheraton Constructions NSW Pty Ltd (in liq) (2004) 22 ACLC 955

PARTIES:
Di Francesca Holdings Pty Ltd
v
Hatziplis Holdings Pty Ltd

FILE NUMBER(S):
SC 5871/04

COUNSEL:
Plaintiff: F Hicks
Defendant: R D Marshall

SOLICITORS:
Plaintiff: William Cotsis & Associates
Defendant: Crichton Brownes Solicitors

LOWER COURT JURISDICTION:

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

WHITE J

Friday, 25 February 2005

5871/04 DI FRANCESCA HOLDINGS PTY LTD v HATZIPLIS HOLDINGS PTY LTD

JUDGMENT

1 HIS HONOUR: This is an application pursuant to s 459G of the Corporations Act 2001 to set aside a Statutory Demand, dated 7 October 2004.

2 The plaintiff had entered into a lease of premises at 94 King Street, Newtown from the defendant for a term commencing on 15 August 2003 and terminating on 31 August 2004. The plaintiff vacated the premises on or about 31 March 2004.

3 The Statutory Demand served on behalf of the defendant demanded the payment of rent totalling $32,589.30 plus GST claimed to be payable on the first day of each of the month, from April to August 2004, together with interest of $14,130.55 plus GST. The total amount of the demand was $46,719.85 plus GST.

4 There was no issue raised before me that the amounts claimed for rent were the amounts which the lease provided should be payable by way of rent. Nor was there any issue before me as to the calculation of interest. Nor was there any dispute that the claimed amounts had not been paid.

5 However, the plaintiff…

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: [2005] NSWSC 169
Decision Date: 25 February 2005

CaseChat Overview and Summary

The case of Scott v Nationwide News Pty Ltd involved a dispute between the plaintiff, Scott, and the defendant, Nationwide News Pty Ltd, regarding a statutory demand issued by the latter. The dispute centred on the validity of the statutory demand and whether it was validly issued in light of a potential genuine dispute as to the liability for the debt claimed. Additionally, the case examined whether the plaintiff had a genuine offsetting claim that could be quantified in monetary terms, such as a counterclaim, set-off, or cross demand.

The primary legal issues that the court had to determine included whether the statutory demand was issued for a genuine purpose and if there existed a genuine dispute as to the liability for the debt claimed. The court also had to consider whether the plaintiff had a genuine offsetting claim that could be quantified in monetary terms and whether the potential relief available justified setting aside the statutory demand.

In reaching its decision, the court examined the evidence and arguments presented by both parties. The court found that there was indeed a genuine dispute as to the liability for the debt claimed, which rendered the statutory demand invalid. Furthermore, the court determined that the plaintiff had a genuine offsetting claim that could be quantified in monetary terms. As a result, the court decided to set aside the statutory demand. The relief granted by the court was the setting aside of the statutory demand, providing the plaintiff with the opportunity to contest the debt and pursue any potential offsetting claims.

The final orders of the court were that the statutory demand issued by Nationwide News Pty Ltd against Scott be set aside. The court's decision provided Scott with the relief necessary to contest the debt and pursue any potential offsetting claims, ultimately allowing the dispute to be resolved through the appropriate legal channels.

Orders