Stone Group v Taylor - [1999] NSWSC 127

CITATION: Stone Group v Taylor [1999] NSWSC 127

CURRENT JURISDICTION:

FILE NUMBER(S): 4669/98

HEARING DATE(S): 01/02/99

JUDGMENT DATE:
2 February 1999

PARTIES :

Stone Group Asia Pacific Investments Limited v Johnston Taylor Corporate Limited

JUDGMENT OF: Master Macready

COUNSEL : Ms R. Sofroniou for the plaintiff
Mr N. Perram for the defendant

SOLICITORS: Hunt and Hunt for the Plaintiff
Corrs Chambers Westgarth for the defendant

CATCHWORDS: Application to set aside statutory demand. Whether there was sufficient evidence to establish quantum of the offsetting claim - held there was insufficient evidence.

DECISION: Summons dismissed. Plaintiff to pay the defendant's costs.

8
SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
MASTER MACREADY
TUESDAY 2 FEBRUARY 1999
4669/98 - STONE GROUP ASIA PACIFIC INVESTMENTS LIMITED v JOHNSON TAYLOR CORPORATE LIMITED
JUDGMENT
1 MASTER: This matter is an application to set aside a statutory demand which was served by the defendant on the plaintiff. The statutory demand is dated 26 October 1998 and claims the sum of $102,400. The debt is said to be for an underwriting commission and management fee pursuant to an underwriting agreement between the parties as varied on 10 September 1998.
2 The claim for the underwriting fees concerns a capital raising which was done on behalf of the plaintiff. The capital to be raised was approximately $3.3 million and was not completely successful in that the whole amount was not raised.
3 The reasons why the statutory demand is sought to be set aside is that it is said that there is on offsetting claim either equal to or greater than the amount sought in the demand.
4 The basis of the offsetting claim is not the failure to raise the appropriate amount of capital, which was accepted, but another matter which seems to be on the periphery of the documentation which really relates to another desire of the plaintiff company, which was to increase its shareholder spread. Apparently it has some 200 shareholders and wanted to increase that to 300 in order to satisfy the Stock Exchange and the listing requirements.
5 There have been given in evidence a number of what might be described as pre-contractual representations. They are three in all. The first appears in par.12 of the affidavit of Mr Cheng who is the secretary of the plaintiff company, which was sworn 16 November 1998. In a discussion with persons from the defendant Mr Cheng in response to a question asked about shareholdings said he was told by the defendant's private client stockbroker that they had thirty-five very good licensed advisers, they usually had a good client base and should be able to give the spread.
6 Some time later, on 15 June, there was a further conversation (see par.15) in which Mr Cheng raised the fact that in fact they only had about 300 shareholders and wanted 200 more. The defendants stated that they would help and indicated that the defendant would have eighty-five advisers by 1 July 1998 and would have the capacity…

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.

Continue reading Stone Group v Taylor

Details

AGLC: Stone Group v Taylor [1999] NSWSC 127
Case: [1999] NSWSC 127
Decision Date: 2 February 1999

CaseChat Overview and Summary

Stone Group was the plaintiff and Taylor the defendant in a dispute that came before the Federal Circuit and Family Court of Australia. The plaintiff had issued a statutory demand to the defendant, seeking payment of a debt. In response, the defendant applied to set aside the statutory demand on the basis that there was a genuine dispute about the amount of the debt due to an alleged offsetting claim. The court had to determine whether there was sufficient evidence presented to establish the quantum of the offsetting claim.

The primary legal issue was whether the defendant had provided enough evidence to justify setting aside the statutory demand. The court had to examine the defendant's application and the evidence provided to determine if there was a genuine dispute about the amount of the debt claimed by the plaintiff. This involved considering the standard of proof required to establish an offsetting claim and whether the evidence presented was adequate to meet that standard.

The court concluded that the evidence provided by the defendant was insufficient to establish the quantum of the offsetting claim. The defendant had not demonstrated that the offsetting claim was sufficiently likely to succeed to justify setting aside the statutory demand. The court found that the evidence was speculative and did not meet the required standard of proof. Consequently, the application to set aside the statutory demand was dismissed.

The court's final orders were that the application to set aside the statutory demand was dismissed, and the statutory demand remained in effect. The defendant was required to pay the debt claimed by the plaintiff within the specified period.

Orders