In the matter of Homeward Bound Export Cherry Project Pty Limited [2012] NSWSC 764

In the matter of Homeward Bound Export Cherry Project Pty Limited [2012] NSWSC 764

The statutory demand was to be varied to the substantiated amount of $108,253.06, as the evidence did not sufficiently raise a genuine dispute or an offsetting claim as to most of the debt, and no other reason for setting aside the demand was found. Grounds not raised in the supporting affidavit were not considered. An extension of time for compliance was granted. Costs for the hearing on 17 May 2012 were awarded jointly and severally against the Plaintiff and its director, while other costs were ordered against the Plaintiff alone.

Parties
Applicant/plaintiff: Homeward Bound Export Cherry Project Pty Limited; Respondent/defendant: Farm Working Hands Pty Limited
Jurisdiction
Australia
Judgment Date
09 July 2012
Procedural Posture
Corporations Statutory Demand Set Aside Application / Final Judgment After Hearing
Outcome
Statutory demand varied, period for compliance extended, costs awarded (in part) personally against director.
Legal Topics
Winding Up, Statutory Demand, Genuine Dispute, Onus of Proof, Test for Genuine Dispute, Offsetting Claim, Extension of Time, Costs (personal Liability for Directors)
Corporations Law Winding Up Statutory Demand Genuine Dispute Onus of Proof Test for Genuine Dispute Offsetting Claim Extension of Time +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 30 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Homeward Bound Export Cherry Project Pty Limited

Applicant/plaintiff

Farm Working Hands Pty Limited

Respondent/defendant

Procedural Posture

Corporations Statutory Demand Set Aside Application / Final Judgment After Hearing

Legal Issues

  1. 1 Whether there is a genuine dispute as to the existence or amount of the debt in the statutory demand (s 459H(1)(a))
  2. 2 Whether the supporting affidavits raise grounds or offsetting claims within the statutory time (s 459G, Graywinter principle)
  3. 3 Whether there is an offsetting claim (s 459H(1)(b))

Ratio Decidendi

The statutory demand was to be varied to the substantiated amount of $108,253.06, as the evidence did not sufficiently raise a genuine dispute or an offsetting claim as to most of the debt, and no other reason for setting aside the demand was found. Grounds not raised in the supporting affidavit were not considered. An extension of time for compliance was granted. Costs for the hearing on 17 May 2012 were awarded jointly and severally against the Plaintiff and its director, while other costs were ordered against the Plaintiff alone.

Court Disposition

Statutory demand varied, period for compliance extended, costs awarded (in part) personally against director.

Orders

  • The statutory demand dated 26 October 2011 issued by the Defendant be varied by amending the amount to $108,253.06.
  • The period for compliance with the statutory demand, as varied, be extended to 30 July 2012.