In the matter of Carbon Polymers Limited [2013] NSWSC 376

In the matter of Carbon Polymers Limited [2013] NSWSC 376

There was a genuine dispute as to whether the debt claimed was due and payable at the time of service of the statutory demand, as completion had not occurred and payment was not required absent completion. The agreement did not specify a 'day certain' for payment irrespective of delivery, thus s 51(2) of the Sale of Goods Act did not apply. As such, the statutory demand should be set aside under s 459H of the Corporations Act 2001 (Cth).

Jurisdiction
Australia
Judgment Date
19 March 2013
Procedural Posture
Application to Set Aside Creditor's Statutory Demand / Final Decision at First Instance
Outcome
Statutory demand set aside; costs to plaintiff.
Legal Topics
['statutory Demand' 'genuine Dispute' 'sale of Goods' 'section 459 G Application' 'contractual Interpretation']
['corporations' 'contract'] ['statutory Demand' 'genuine Dispute' 'sale of Goods' 'section 459 G Application' 'contractual Interpretation']

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Procedural Posture

Application to Set Aside Creditor's Statutory Demand / Final Decision at First Instance

Legal Issues

  1. 1 ['Whether the debt claimed was due and payable at the time the statutory demand was served' 'Whether there was in existence any relevant debt at the date of service of the statutory demand' 'Whether grounds of dispute were sufficiently identified in the s 459G affidavit']

Ratio Decidendi

There was a genuine dispute as to whether the debt claimed was due and payable at the time of service of the statutory demand, as completion had not occurred and payment was not required absent completion. The agreement did not specify a 'day certain' for payment irrespective of delivery, thus s 51(2) of the Sale of Goods Act did not apply. As such, the statutory demand should be set aside under s 459H of the Corporations Act 2001 (Cth).

Court Disposition

Statutory demand set aside; costs to plaintiff.

Orders

  • ["The creditor's statutory demand dated 18 October 2012 and served by the defendant on the plaintiff on 22 October 2012 is set aside." "The defendant is to pay the plaintiff's costs, assessed in the sum of $12,500."]