Bourke Road Pty Ltd v Boxster Constructions Pty Ltd [2001] NSWSC 717

Bourke Road Pty Ltd v Boxster Constructions Pty Ltd [2001] NSWSC 717

Due to the applicability of s 11 of the Building and Construction Industry Security of Payment Act 1999, the statutory demand may be invalid as the debt was not due and payable at the date of demand, warranting court discretion under s 459J to set it aside subject to conditions.

Jurisdiction
Australia
Judgment Date
13 August 2001
Procedural Posture
Application Under S 459 G of the Corporations Law / Judgment
Outcome
Conditional setting aside of statutory demand
Legal Topics
['winding Up' 'statutory Demand' 'building Contract' 'liquidation']
['corporations' 'equity'] ['winding Up' 'statutory Demand' 'building Contract' 'liquidation']

Case Brief

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Procedural Posture

Application Under S 459 G of the Corporations Law / Judgment

Legal Issues

  1. 1 ['Whether the statutory demand should be set aside' 'Whether a cross-claim offsets the statutory demand amount' 'Whether the debt in the statutory demand was due and payable at the date of demand' 'Whether defects in statutory demand permit exercise of discretion under s 459J']

Ratio Decidendi

Due to the applicability of s 11 of the Building and Construction Industry Security of Payment Act 1999, the statutory demand may be invalid as the debt was not due and payable at the date of demand, warranting court discretion under s 459J to set it aside subject to conditions.

Court Disposition

Conditional setting aside of statutory demand

Orders

  • ["Statutory demand to be set aside if, by 10am on 27 August 2001, developer pays $75,000 to the liquidator and lodges proof of debt. Matter stood over to 28 August 2001. Developer to undertake to pursue claim against liquidator diligently and submit to an order for liquidator's costs. If conditions not complied...