Tatlers.com.au Pty Ltd v Davis

Reported Decision: 213 FLR 109
(2007) 25 ACLC 1,150

New South Wales

Supreme Court

CITATION:	Tatlers.com.au Pty Ltd v Davis [2007] NSWSC 835 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	29/06/07
JUDGMENT DATE :	3 August 2007
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	White J
DECISION:	1. Order that the statutory demand dated 20 December 2006 served by the defendant on the plaintiff be varied by substituting the sum of $22,681.34 for the sum of $31,370 as the amount of the debt; 2. Declare that the demand is to have had effect, as so varied, as from when the demand was served on the plaintiff; 3. The exhibits may be returned after 28 days.
CATCHWORDS:	CORPORATIONS – Corporations – Statutory demand – Affidavit in support of application to set aside – Whether s 459G(3) of the Corporations Act 2001 (Cth) requires service of exhibits to affidavit within 21-day period – Held it does not. - CORPORATIONS – Statutory demand – Application for order setting aside under s 459G of the Corporations Act – Whether grounds for application raised expressly or by reasonable inference in affidavit in support of application in accordance with Graywinter principle – Held that plaintiff not entitled to rely upon ground which should be reasonably apparent from what has passed between parties but is not raised expressly or by reasonable inference in affidavit in support of application – Where supporting affidavit clearly raised liability of defendant to each of third party and plaintiff arising from costs orders in their favour – Held that plaintiff entitled to rely on grounds that there is a genuine dispute or offsetting claims arising from costs orders in favour of plaintiff and deponent – Plaintiff entitled to set off amount owed to it by defendant pursuant to costs order in favour of plaintiff. - CORPORATIONS – Statutory demand – Application for order setting aside under s 459G of the Corporations Act – Offsetting claim – Whether costs order in favour of third party to statutory demand can be availed of by plaintiff as an offsetting claim, where debt the subject of the statutory demand is owed jointly and severally by third party and plaintiff to defendant – Held that a joint and several obligor who is sued alone cannot raise a set-off to which his or her co-obligor is entitled.
LEGISLATION CITED:	Corporations Act 2001 (Cth) Federal Court Rules 1979 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Corporate Law Reform Bill 1992 (Cth) (Explanatory Memorandum, Corporate Law Reform Bill 1992 (Cth) Derham, The Law of Set Off, 3rd ed
CASES CITED:	Kortz Ltd v Data Acquisition Pty Ltd (2006) 155 FCR 556; [2006] FCA 1722 Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1986) 70 FCR 452 Anderson Formrite Pty Ltd v CASC Hire Pty Ltd (2005) 147 FCR 379 Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338 Re…