B&W Windows v Coshott Voits v Coshott [2008] NSWSC 49

B&W Windows v Coshott Voits v Coshott [2008] NSWSC 49

The statutory demands were set aside because they were not accompanied by the affidavit required by s459E(3). The Federal Magistrates Court costs order arose in bankruptcy proceedings, so the fixed costs scale in Reg 21.10 did not apply and the costs had to be taxed before any amount was due and payable. In the B & W Windows proceeding, the demand was also unsupported because the costs order was not made against the new B & W Windows Pty Limited and there was no debt between that company and Mr Coshott.

Jurisdiction
Australia
Judgment Date
11 February 2008
Procedural Posture
Application to Set Aside Statutory Demand Under S459 G of the Corporations Act / Hearing and Judgment in the Equity Division
Outcome
Statutory demands set aside.
Legal Topics
['statutory Demand' 'affidavit Verifying Debt' 'judgment Debt' 'costs Order' 'defect in Demand' 'genuine Dispute or Debt Due and Payable']
['corporations Law' 'bankruptcy' 'civil Procedure'] ['statutory Demand' 'affidavit Verifying Debt' 'judgment Debt' 'costs Order' 'defect in Demand' 'genuine Dispute or Debt Due and Payable']

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Procedural Posture

Application to Set Aside Statutory Demand Under S459 G of the Corporations Act / Hearing and Judgment in the Equity Division

Legal Issues

  1. 1 ['Whether an unsigned statutory demand should be set aside as defective.' 'Whether the demand was required to be accompanied by an affidavit under s459E(3) because the claimed debt was not a judgment debt.' 'Whether the Federal Magistrates Court costs order created a debt due and payable for the amount claimed without taxation.' 'Whether B & W Windows Pty Limited was liable for the Federal Magistrates Court costs order, given the distinction between the old company and the new company.']

Ratio Decidendi

The statutory demands were set aside because they were not accompanied by the affidavit required by s459E(3). The Federal Magistrates Court costs order arose in bankruptcy proceedings, so the fixed costs scale in Reg 21.10 did not apply and the costs had to be taxed before any amount was due and payable. In the B & W Windows proceeding, the demand was also unsupported because the costs order was not made against the new B & W Windows Pty Limited and there was no debt between that company and Mr Coshott.

Court Disposition

Statutory demands set aside.

Orders

  • ["In proceeding 4180 of 2007, the demand is set aside and the defendant must pay the plaintiff's costs of the proceedings." 'In proceeding 4311 of 2007, the demand is set aside on the ground that the failure to have an affidavit in support is fatal.']