In the matter of A.N.T. Building Pty Ltd [2019] NSWSC 1380

In the matter of A.N.T. Building Pty Ltd [2019] NSWSC 1380

The total quantum of the four offsetting claims asserted by the plaintiff plausibly exceeds the statutory demand amount; the evidence rises above bare assertion, and each claim is arguable and deserving of a hearing. Accordingly, the statutory demand is set aside.

Parties
Plaintiff: A.N.T. Building Pty Ltd; Defendant: Kimbo Rendering & Painting Pty Ltd
Jurisdiction
Australia
Judgment Date
14 October 2019
Procedural Posture
Corporations Application to Set Aside Statutory Demand / Final Decision on Application
Outcome
Statutory demand set aside; amended originating process otherwise dismissed; defendant to pay plaintiff's costs.
Legal Topics
Statutory Demand, Offsetting Claim, Security of Payment Act, Liquidated Damages, Defective Works, Variation Claims, Costs Order
Corporations Law Building and Construction Law Statutory Demand Offsetting Claim Security of Payment Act Liquidated Damages Defective Works Variation Claims +1 more

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Parties

A.N.T. Building Pty Ltd

Plaintiff

Kimbo Rendering & Painting Pty Ltd

Defendant

Procedural Posture

Corporations Application to Set Aside Statutory Demand / Final Decision on Application

Legal Issues

  1. 1 Whether the statutory demand should be set aside under s 459G of the Corporations Act 2001 (Cth) due to offsetting claims
  2. 2 Whether plaintiff's claims for delay, overpayment, defective and incomplete works, and damaged works constitute genuine offsetting claims

Ratio Decidendi

The total quantum of the four offsetting claims asserted by the plaintiff plausibly exceeds the statutory demand amount; the evidence rises above bare assertion, and each claim is arguable and deserving of a hearing. Accordingly, the statutory demand is set aside.

Court Disposition

Statutory demand set aside; amended originating process otherwise dismissed; defendant to pay plaintiff's costs.

Orders

  • That the statutory demand dated 9 July 2019 served on the plaintiff by the defendant be set aside.
  • Otherwise dismiss the Amended Originating Process filed 20 September 2019.