Springwood Bowling and Recreation Club Ltd v G.D. Gaal and Ors trading as Hughes Commercial Furniture

[2010] NSWSC 290

CITATION:	Springwood Bowling & Recreation Club Ltd v G.D. Gaal & Ors trading as Hughes Commercial Furniture [2010] NSWSC 290
HEARING DATE(S):	11 March 2010
JUDGMENT DATE :	11 March 2010
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	11 March 2010
DECISION:	Statutory Demand set aside.
CATCHWORDS:	CORPORATIONS – STATUTORY DEMAND – whether genuine off-setting claim – no particulars of claim.
LEGISLATION CITED:	Corporations Act 2001 (Cth) – s 459G
CATEGORY:	Principal judgment
PARTIES:	Springwood Bowling and Recreation Club Ltd (Plaintiff) G.D. Gaal, G.E. Gaal, J.E. Gaal, K.E. Gaal & P.H. Gaal t/as Hughes Commercial Furniture (Defendants)
FILE NUMBER(S):	SC 2009/291267
COUNSEL:	P. Cutler (Plaintiff) G. Blank (Defendants)
SOLICITORS:	Philip Gengos & Co (Plaintiff) Hudspeth Lawyers (Defendants)

2009/291267 Springwood Bowling & Recreation Club Ltd v
G.D. Gaal & Ors t/as Hughes Commercial Furniture

JUDGMENT – Ex tempore

11 March, 2010

1 In this matter the Plaintiff applies pursuant to s 459G of the Corporations Act 2001 (Cth) to set aside a Statutory Demand served by the Defendants on the ground that the debt is genuinely disputed..

2 There is no issue that the Originating Process was served within the time stipulated by s 459G(3).

3 The essence of the dispute alleged is that the furniture for which the Defendants claim the balance of the purchase price was not fit for the purpose for which it was required, i.e. in supplying the furniture the Defendants were in breach of a warranty of fitness for a specified purpose. Because the Plaintiff was not satisfied with the quality of the furniture, it withheld the balance of the purchase price of the furniture, some $126,000.

4 The affidavit in support of the Originating Process does not contain any evidence which would allow the Court to form any view as to the quantum of any claim which the Plaintiff may have for breach of the warranty which it seeks to set up. As the evidence is entirely deficient in this regard, the Court has no basis upon which it can conclude that the whole of the debt is genuinely in dispute. The authorities in this regard are well established and do not need repetition. For that reason the Originating Process must be dismissed.

5 I do not think there is any basis demonstrated for indemnity costs. I order the Plaintiff to pay the Defendants' costs of the proceedings on the party/party basis.

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