Addersome Industries Geelong Pty Ltd v Highpoint Homemaker Centre (Vic) Pty Ltd [1995] FCA 82

Addersome Industries Geelong Pty Ltd v Highpoint Homemaker Centre (Vic) Pty Ltd [1995] FCA 82

The demand was set aside because, even without deciding whether the assignment changed the applicant's liability to that of a guarantor or left it jointly and severally liable, the circumstances including the lack of effective notice of amounts allegedly owing under the lease after the deed of assignment were sufficient to establish a genuine dispute as to the debt.

Jurisdiction
Australia
Judgment Date
17 February 1995
Procedural Posture
Application to Set Aside a Statutory Demand Served Pursuant to S459 E of the Corporations Law / Reasons for Judgment and Orders
Outcome
Statutory demand set aside; respondent ordered to pay the applicant's costs.
Legal Topics
['statutory Demand' 'genuine Dispute' 'assignment of Lease' 'liability for Rent and Outgoings']
['corporations Law' 'insolvency' 'leases'] ['statutory Demand' 'genuine Dispute' 'assignment of Lease' 'liability for Rent and Outgoings']

Case Brief

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Procedural Posture

Application to Set Aside a Statutory Demand Served Pursuant to S459 E of the Corporations Law / Reasons for Judgment and Orders

Legal Issues

  1. 1 ['Whether the statutory demand dated 2 May 1994 should be set aside on the basis that there was a genuine dispute as to the alleged debt.' "Whether the assignment of the lease changed the applicant's liability from primary liability to liability as guarantor of the assignee." 'Whether the lack of effective notice of amounts allegedly owing under the lease after the deed of assignment supported the existence of a genuine dispute.']

Ratio Decidendi

The demand was set aside because, even without deciding whether the assignment changed the applicant's liability to that of a guarantor or left it jointly and severally liable, the circumstances including the lack of effective notice of amounts allegedly owing under the lease after the deed of assignment were sufficient to establish a genuine dispute as to the debt.

Court Disposition

Statutory demand set aside; respondent ordered to pay the applicant's costs.

Orders

  • ['That the statutory demand dated 2 May 1994 and served on the applicant by the respondent be set aside.' "That the respondent pay the applicant's costs of this application, including any reserved costs, such costs to be taxed in default of agreement."]