BBB Constructions Pty Ltd v Frankipile Australia Pty Ltd [2008] NSWSC 982

BBB Constructions Pty Ltd v Frankipile Australia Pty Ltd [2008] NSWSC 982

The applicant established a genuine and substantial offsetting claim exceeding the amount of the statutory demand, based on contractual provisions and preliminary expert and quantity surveyor evidence, warranting the statutory demand be set aside under s 459H. Imposition of a payment into court as a condition was not warranted, but the applicant is to institute and prosecute its claim in the appropriate court.

Parties
Plaintiff: BBB Constructions Pty Ltd; Defendant: Frankipile Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
14 August 2008
Procedural Posture
Originating Application to Set Aside Creditor's Statutory Demand / Ex Tempore Judgment in First Instance Court
Outcome
Statutory demand set aside, conditionally upon applicant instituting proceedings; costs to applicant.
Legal Topics
Creditor's Statutory Demand, Offsetting Claim, Genuine Dispute, Setting Aside Statutory Demand, Building Contract Liability
Corporations Law Building and Construction Law Creditor's Statutory Demand Offsetting Claim Genuine Dispute Setting Aside Statutory Demand Building Contract Liability

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Parties

BBB Constructions Pty Ltd

Plaintiff

Frankipile Australia Pty Ltd

Defendant

Procedural Posture

Originating Application to Set Aside Creditor's Statutory Demand / Ex Tempore Judgment in First Instance Court

Legal Issues

  1. 1 Whether the applicant has a genuine offsetting claim within the meaning of s 459H of the Corporations Act 2001
  2. 2 Whether the existence of a debt arising from adjudication under the Building and Construction Industry Security of Payment Act 1999 precludes an offsetting claim
  3. 3 Whether the offsetting claim is bona fide, truly existing and sufficiently particularised

Ratio Decidendi

The applicant established a genuine and substantial offsetting claim exceeding the amount of the statutory demand, based on contractual provisions and preliminary expert and quantity surveyor evidence, warranting the statutory demand be set aside under s 459H. Imposition of a payment into court as a condition was not warranted, but the applicant is to institute and prosecute its claim in the appropriate court.

Court Disposition

Statutory demand set aside, conditionally upon applicant instituting proceedings; costs to applicant.

Orders

  • Upon condition that the plaintiff undertake to the Court that within 14 days it will file and serve in the Construction and Technology List a summons generally to the effect of that comprised in annexure 8 of PB08 to the affidavit of Paul Bettar sworn 27 June 2008 and diligently prosecute such proceedings, order...
  • The defendant pay the plaintiff's costs of the proceedings.