Bell Construction Services P/L v Form-Kwip Building Services P/L [2001] NSWSC 73

Bell Construction Services P/L v Form-Kwip Building Services P/L [2001] NSWSC 73

The omissions in the plaintiff's affidavit did not amount to non-compliance with s459G(3) because both the affidavit filed and served omitted the same material with no intention shown to include it and no prejudice to the defendant; there is a genuine dispute concerning the alleged debt as the evidence supports the payment was made personally to Mr Bell and not as a loan to the company.

Parties
Plaintiff: Bell Construction Services Pty Limited; Defendant: Form-Kwip Building Services Pty Limited
Jurisdiction
Australia
Judgment Date
19 February 2001
Procedural Posture
Application to Set Aside Statutory Demand / Ex Tempore Judgment on Contested Application
Outcome
Application to set aside statutory demand succeeds.
Legal Topics
Statutory Demand, S459 G Compliance, Genuine Dispute
Corporations Law Equity Statutory Demand S459 G Compliance Genuine Dispute

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Parties

Bell Construction Services Pty Limited

Plaintiff

Form-Kwip Building Services Pty Limited

Defendant

Procedural Posture

Application to Set Aside Statutory Demand / Ex Tempore Judgment on Contested Application

Legal Issues

  1. 1 Whether the affidavit filed supports the application in compliance with s459G of the Corporations Law
  2. 2 Whether there is a genuine dispute in relation to the claimed debt subject of the statutory demand

Ratio Decidendi

The omissions in the plaintiff's affidavit did not amount to non-compliance with s459G(3) because both the affidavit filed and served omitted the same material with no intention shown to include it and no prejudice to the defendant; there is a genuine dispute concerning the alleged debt as the evidence supports the payment was made personally to Mr Bell and not as a loan to the company.

Court Disposition

Application to set aside statutory demand succeeds.

Orders

  • The plaintiff's application pursuant to s459G of the Corporations Law is granted.
  • The defendant is to pay costs of the application other than reserved costs, such to be agreed or assessed forthwith.