CCD v Drywall [2006] NSWSC 1012

CCD v Drywall [2006] NSWSC 1012

The statutory demand is set aside as the verifying affidavit omitted the required statement that there is no genuine dispute about the debt, a substantive defect relevant to the statutory regime under s 459G of the Corporations Act. Further, there is a genuine dispute as to the existence of a construction contract fundamental to the adjudication, and a genuine off-setting claim exists under s 32 of the BACISOP Act permitting restitution, warranting the demand to be set aside.

Jurisdiction
Australia
Judgment Date
29 September 2006
Procedural Posture
Application to Set Aside Statutory Demand / Judgment
Outcome
Statutory demand set aside.
Legal Topics
['statutory Demand' 'application Under S 459 G Corporations Act 2001 (cth)' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'affidavit Formal Defects' 'genuine Dispute' 'off Setting Claim']
['corporations Law' 'construction Law' 'civil Procedure'] ['statutory Demand' 'application Under S 459 G Corporations Act 2001 (cth)' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'affidavit Formal Defects' 'genuine Dispute' 'off Setting Claim']

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Procedural Posture

Application to Set Aside Statutory Demand / Judgment

Legal Issues

  1. 1 ['Whether formal defects in the affidavit and statutory demand warrant setting aside the demand under s 459G of Corporations Act 2001 (Cth)' 'Whether there is a genuine dispute about the debt claimed in the statutory demand' 'Whether there is an off-setting claim enabling the demand to be set aside']

Ratio Decidendi

The statutory demand is set aside as the verifying affidavit omitted the required statement that there is no genuine dispute about the debt, a substantive defect relevant to the statutory regime under s 459G of the Corporations Act. Further, there is a genuine dispute as to the existence of a construction contract fundamental to the adjudication, and a genuine off-setting claim exists under s 32 of the BACISOP Act permitting restitution, warranting the demand to be set aside.

Court Disposition

Statutory demand set aside.

Orders

  • ['The statutory demand dated 25 March 2006 served by the defendant upon the plaintiff be set aside.' "The defendant to pay the plaintiff's costs."]