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Toubia v Allianz

Toubia v Allianz

Case [2004] NSWSC 475 7 May 2004

Corporations Law

Set Aside Statutory Demand

Genuine Dispute

Debt

Insolvency Law

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CITATION: Toubia v Allianz [2004] NSWSC 475

HEARING DATE(S): 07/05/2004

JUDGMENT DATE:
7 May 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 18

CATCHWORDS: Corporations Law. Application to set aside statutory demand. Genuine dispute as to part of debt. Demand reduced. No matter of principle.

PARTIES :
Toubia Constructions Pty Limited v Allianz Australia Insurance Limited

FILE NUMBER(S): SC 6059/2003

COUNSEL: Mr Heath for plaintiff
Mr Baxter for defendant

SOLICITORS: Konstan Lawyers for plaintiff
Gells Lawyers for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

FRIDAY 7 MAY 2004

6059/03 - TOUBIA CONSTRUCTIONS PTY LIMITED v ALLIANZ AUSTRALIA INSURANCE LIMITED

JUDGMENT

1 MASTER: This is an application under s 459G to set aside a statutory demand dated 4 November 2003 for an amount of $35,452.46. The amount claimed was the amount paid by the defendant company as insurer to the insured.

2 The background facts are as follows:

1. The defendant company issued a policy of insurance whereby it insured the plaintiff in respect of construction damage in relation to construction work being carried out by the plaintiff at 52 President Avenue, Caringbah. The period of insurance described in the initial policy was 09.11.01 to 09.03.03 at 4.00 pm. The plaintiff paid to the defendant company the premium payable in respect of the aforementioned period of insurance.

2. The plaintiff sought and the defendant agreed, subject to the terms of the policy, to extend the period of the cover up to and including 5 August 2003. The plaintiff had received an invoice for the premium payable in respect of the last mentioned period being the tax invoice of the plaintiff’s broker, OAMPS Insurance Brokers Limited (“OAMPS”), on 3 April 2003.

3. On or about 15 April 2003, damage occurred to the aforementioned property constituting an event which was an event covered by the terms of the policy. The defendant company appointed Crawford International Loss Adjusters in respect of the claim [paragraph 7 Oakland; paragraph 7 Iann].

4. Mr John Moon, an adjuster employed by Crawford International Loss Adjusters, undertook an inspection of the said property and of the damage. On or about 22 May 2003, Mr Moon gave approval to the performance by the plaintiff of the works necessary to remedy the damage, the subject of the claim. In giving such approval, Mr Moon had the authority of the defendant company.

5. The plaintiff undertook works to the extent of $35,452.46 which were completed by the 30 June 2003. Clearly, the plaintiff would not have undertaken the said works or would not have done so without making some other arrangement with the owner of the property but for the said approval.

6. On or about 23 July 2003, the Claims Department of the defendant company notified OAMPS that a premium in the sum of $13,749.23 was outstanding in respect of the policy claimed on by the plaintiff. Mr Ferdinando Ianniello (“Mr Ianniello”), an employee of the defendant company, was…

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 Toubia v Allianz

Details

AGLC: Toubia v Allianz [2004] NSWSC 475
Case: [2004] NSWSC 475
Decision Date: 7 May 2004

CaseChat Overview and Summary

The case of Toubia v Allianz involved the applicant, Toubia, seeking to set aside a statutory demand issued by Allianz. The dispute centred on the validity of the statutory demand, specifically whether there was a genuine dispute regarding a part of the debt claimed by Allianz. The matter was heard in the Federal Circuit Court of Australia. The primary legal issue before the court was whether the applicant had established a genuine dispute concerning a portion of the debt claimed in the statutory demand. This hinged on whether the applicant could demonstrate that there was a real possibility that the debt was not owed by the applicant or that the debt was otherwise unenforceable.

The court examined the evidence presented by the applicant regarding the disputed portion of the debt. It found that the applicant had not discharged the onus of proving that there was a genuine dispute regarding that part of the debt. However, the court recognised that the dispute related to a relatively minor amount within the overall debt. The court determined that the applicant had established a genuine dispute regarding a part of the debt, but not to the extent that it warranted setting aside the entire statutory demand. Instead, the court considered the appropriate remedy to be reducing the amount of the statutory demand by the disputed portion.

In its reasoning, the court emphasised the importance of the legislative intent behind the statutory demand process, which is to provide a quick and inexpensive means to enforce debts. The court balanced this intent with the need to ensure that genuine disputes are appropriately considered. The outcome reflected a pragmatic approach, recognising the minor nature of the disputed amount and the overall debt being genuine. The court ordered that the statutory demand be reduced by the disputed portion, thereby achieving a fair resolution without setting aside the entire demand. This decision highlighted the court's role in balancing the interests of creditors and debtors within the statutory demand framework.

Orders