Aldoga Aluminium Pty Ltd v De Silva Starr Pty Ltd [2005] NSWSC 284

Aldoga Aluminium Pty Ltd v De Silva Starr Pty Ltd [2005] NSWSC 284

The statutory demand was set aside because the Plaintiff was not barred by s.15(4) of the Building and Construction Industry Security of Payment Act 1999 (NSW) from relying on a genuine dispute under s.459G of the Corporations Act 2001 (Cth), and the evidence disclosed a genuine dispute as to whether the alleged oral contract for the full fit-out and design work existed. That dispute turned on conflicting conversations and matters of credit which were not to be determined on the s.459G application.

Jurisdiction
Australia
Judgment Date
01 April 2005
Procedural Posture
Application Under S.459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Ex Tempore Judgment
Outcome
Statutory demand set aside. Indemnity costs refused. Defendant ordered to pay the Plaintiff's costs on the party/party basis.
Legal Topics
['statutory Demand' 'genuine Dispute' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'payment Claim' 'oral Contract' 'costs']
['corporations' 'building and Construction' 'insolvency'] ['statutory Demand' 'genuine Dispute' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'payment Claim' 'oral Contract' 'costs']

Case Brief

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Procedural Posture

Application Under S.459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the Plaintiff was precluded by ss.14 and 15 of the Building and Construction Industry Security of Payment Act 1999 (NSW) from raising a genuine dispute in response to a statutory demand.' 'Whether there was a genuine dispute as to the existence of the oral contract and debt alleged by the Defendant.' 'Whether costs should be ordered on an indemnity basis.']

Ratio Decidendi

The statutory demand was set aside because the Plaintiff was not barred by s.15(4) of the Building and Construction Industry Security of Payment Act 1999 (NSW) from relying on a genuine dispute under s.459G of the Corporations Act 2001 (Cth), and the evidence disclosed a genuine dispute as to whether the alleged oral contract for the full fit-out and design work existed. That dispute turned on conflicting conversations and matters of credit which were not to be determined on the s.459G application.

Court Disposition

Statutory demand set aside. Indemnity costs refused. Defendant ordered to pay the Plaintiff's costs on the party/party basis.

Orders

  • ['The statutory demand is set aside.' "The Defendant will pay the Plaintiff's costs of the proceedings on the party/party basis." 'The exhibits may be returned.']