Property Builders Pty Limited v Carlamax Properties Pty Ltd; Property Builders (Constructions) Pty Limited v Carlamax Properties Pty Ltd [2011] NSWSC 1200

Property Builders Pty Limited v Carlamax Properties Pty Ltd; Property Builders (Constructions) Pty Limited v Carlamax Properties Pty Ltd [2011] NSWSC 1200

The plaintiffs had an arguable offsetting claim of $120,506.01, so each statutory demand should be varied from $648,872.52 to $528,366.51. The demands should not be set aside because the debt owed by Property Builders (Constructions) to Carlamax had merged in the District Court judgment of 19 January 2011 and was res judicata, leaving only a possible claim for damages or compensation as an offsetting claim. Given the defendant's substantial success but the plaintiffs' partial success, there should be no order as to costs.

Jurisdiction
Australia
Judgment Date
23 September 2011
Procedural Posture
Corporations List Proceeding Concerning Statutory Demands / Final Orders and Costs Following Reasons of 14 September 2011
Outcome
Statutory demands varied; no order as to costs.
Legal Topics
['statutory Demands' 'offsetting Claim' 'guarantee' 'res Judicata' 'variation of Demand' 'costs']
['practice and Procedure' 'corporations' 'costs'] ['statutory Demands' 'offsetting Claim' 'guarantee' 'res Judicata' 'variation of Demand' 'costs']

Case Brief

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Procedural Posture

Corporations List Proceeding Concerning Statutory Demands / Final Orders and Costs Following Reasons of 14 September 2011

Legal Issues

  1. 1 ['Whether the statutory demands should be varied by the amount of the arguable offsetting claim.' 'Whether Property Builders (Constructions) Pty Ltd was discharged from liability under its guarantee so that a statutory demand should be set aside.' "Whether the plaintiffs' further submissions were open on the supporting affidavits." 'What costs order should be made.']

Ratio Decidendi

The plaintiffs had an arguable offsetting claim of $120,506.01, so each statutory demand should be varied from $648,872.52 to $528,366.51. The demands should not be set aside because the debt owed by Property Builders (Constructions) to Carlamax had merged in the District Court judgment of 19 January 2011 and was res judicata, leaving only a possible claim for damages or compensation as an offsetting claim. Given the defendant's substantial success but the plaintiffs' partial success, there should be no order as to costs.

Court Disposition

Statutory demands varied; no order as to costs.

Orders

  • ['In each matter, the statutory demand served by the defendant on the plaintiffs dated 3 February 2011 be varied by substituting the sum of $528,366.51 for the sum of $648,872.52.' 'In each matter, the demand has had effect as varied in accordance with order 1 as from when the demand was served on the plaintiff.'...