Besser Industries (NT) Pty Ltd v Steelcon Constructions Pty Ltd [1995] FCA 180

Besser Industries (NT) Pty Ltd v Steelcon Constructions Pty Ltd [1995] FCA 180

There is no genuine dispute as to the existence of the debt, but there is a genuine dispute as to the amount claimed. The admitted error in the amount justifies varying the statutory demand to the amount correctly certified by progress certificates. Mere defects, including failures in the affidavit, are not sufficient to set aside the demand absent substantial injustice.

Parties
Applicant: Besser Industries (NT) Pty Ltd; Respondent: Steelcon Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
30 March 1995
Procedural Posture
Corporations Application to Set Aside Statutory Demand / Final Judgment on Application to Vary Statutory Demand
Outcome
Statutory demand varied; demand remains in effect as varied.
Legal Topics
Statutory Demand, Genuine Dispute, Progress Payments, Defective Statutory Demand, Affidavit Compliance
Corporations Law Statutory Demand Genuine Dispute Progress Payments Defective Statutory Demand Affidavit Compliance

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Parties

Besser Industries (NT) Pty Ltd

Applicant

Steelcon Constructions Pty Ltd

Respondent

Procedural Posture

Corporations Application to Set Aside Statutory Demand / Final Judgment on Application to Vary Statutory Demand

Legal Issues

  1. 1 Whether there is a genuine dispute as to existence of the debt
  2. 2 Whether a lump sum contract price is inconsistent with progress payments
  3. 3 Whether admitted error in the amount claimed is a defect justifying the demand being set aside

Ratio Decidendi

There is no genuine dispute as to the existence of the debt, but there is a genuine dispute as to the amount claimed. The admitted error in the amount justifies varying the statutory demand to the amount correctly certified by progress certificates. Mere defects, including failures in the affidavit, are not sufficient to set aside the demand absent substantial injustice.

Court Disposition

Statutory demand varied; demand remains in effect as varied.

Orders

  • Statutory demand varied by substituting "$678,660.00" for "$799,283.30" in para 1.
  • Demand to have effect, as so varied, from service date.