The Verus Group Pty Ltd v Webb - [2010] NSWSC 423

CITATION: The Verus Group Pty Ltd v Webb [2010] NSWSC 423

HEARING DATE(S): 06/05/10

JUDGMENT DATE :
6 May 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 6 May 2010

DECISION: (1) Order that the statutory demand the subject of these proceedings be set aside.
(2) Order that the defendant pay the plaintiff's costs of the proceedings.

CATCHWORDS: CORPORATIONS - winding up - statutory demand - application for order setting aside - genuine dispute alleged - court not called upon to resolve matters in dispute

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 459G, 459H(1)(a)
Uniform Civil Procedure Rules 2005, rule 7.19

CATEGORY: Principal judgment

CASES CITED: Chippendale Printing Company Pty Limited v Deputy Commissioner of Taxation (1995) 55 FCR 562
El-Kazzi v Kassoum [2009] NSWSC 99
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Pethybridge v Stedikas Holdings Pty Limited [2007] NSWCA 154; [2007] Aust Contract R 90-263

PARTIES: The Verus Group Pty Limited - Plaintiff
John Raymond Webb trading as Australian Industry & Lifestyle Exhibitions - Defendant

FILE NUMBER(S): SC 2009/291050

COUNSEL: Mr A R Davis - Plaintiff
Mr S R Meehan - Defendant

SOLICITORS: Davis Legal - Plaintiff
Harris Freidman Hyde Page - Defendant

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

BARRETT J

THURSDAY 6 MAY 2010

2009/291050 THE VERUS GROUP PTY LTD v JOHN RAYMOND WEBB T/AS AUSTRALIAN INDUSTRY & LIFESTYLE EXHIBITIONS

JUDGMENT

1 This is an application under s 459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on the plaintiff by the defendant, Mr John Raymond Webb.

2 The application is based on the proposition that there is a genuine dispute as to the existence of the debt the subject of the statutory demand. The plaintiff thus invokes s 459H(1)(a).

3 The debt or alleged debt to which the statutory demand relates is in the sum of $17,516.40 and is said to consist of three separate sums totalling that amount “payable pursuant to a contract dated on or about 20 February 2009”.

4 The affidavit accompanying the statutory demand is more extensive than usual. The affidavit makes it clear that, on the defendant's view of matters, there were three separate contracts between the plaintiff and Mr Webb, each dated 20 February 2009 and each importing detailed terms and conditions recorded in a separate document. Further, it is made clear by the affidavit that, on the defendant's view of matters, one of the stated sums became payable under each contract. The subject matter of each contract was the hire of exhibition space at a trade fair with which it appears that the defendant was connected.

5 The case is, I think, one in which a single statutory demand extends to several different or distinct debts so that a description of each debt is required in the statutory demand: see Chippendale Printing Company Pty Limited v Deputy Commissioner of Taxation (1995) 55 FCR 562.…

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 The Verus Group Pty Ltd v Webb

Details

AGLC: The Verus Group Pty Ltd v Webb [2010] NSWSC 423
Case: [2010] NSWSC 423
Decision Date: 6 May 2010

CaseChat Overview and Summary

The matter before the court involved a statutory demand issued by The Verus Group Pty Ltd against Webb, seeking winding up of Webb's company. Webb applied for an order setting aside the statutory demand, claiming a genuine dispute existed. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issue was whether there was a genuine dispute justifying the setting aside of the statutory demand. This required the court to assess the validity of Webb's contention that a dispute existed which could potentially satisfy the criteria for setting aside the demand under the relevant legislation.

The court determined that it was not required to resolve the merits of the dispute between the parties. Instead, the court focused on whether there was a bona fide and substantial dispute. The court found that Webb had provided sufficient evidence to demonstrate a genuine dispute existed, and thus the statutory demand could be set aside. The court emphasised that it was not its role to adjudicate on the dispute itself, but rather to determine if a genuine dispute was present.

The final order of the court was that the application to set aside the statutory demand was successful. The court set aside the statutory demand on the basis that a genuine dispute was present.

Orders