Chadah Pty Ltd v Kubota Tractor Australia Pty Ltd [2003] NSWSC 456

Chadah Pty Ltd v Kubota Tractor Australia Pty Ltd [2003] NSWSC 456

There was a genuine dispute as to all but $53,622.30 of the debt claimed in the statutory demand; no offsetting claim was available within the meaning of s 459G as the necessary facts were not raised in the supporting affidavit filed within 21 days; the affidavit verifying the statutory demand was sufficient; therefore, the demand should be varied by substituting $53,622.30 for $310,212.50.

Parties
Plaintiff: Chadah Pty Ltd; Defendant: Kubota Tractor Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
06 June 2003
Procedural Posture
Originating Process Application to Set Aside Statutory Demand / Judgment on Application to Set Aside Statutory Demand
Outcome
Statutory demand varied by substituting a lower amount than the amount for which it was issued.
Legal Topics
Statutory Demand, Genuine Dispute, Offsetting Claim, Verification of Debt, Winding Up
Corporations Law Statutory Demand Genuine Dispute Offsetting Claim Verification of Debt Winding Up

Case Brief

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Parties

Chadah Pty Ltd

Plaintiff

Kubota Tractor Australia Pty Ltd

Defendant

Procedural Posture

Originating Process Application to Set Aside Statutory Demand / Judgment on Application to Set Aside Statutory Demand

Legal Issues

  1. 1 Whether there is a genuine dispute as to the debt claimed in the statutory demand.
  2. 2 Whether there is an offsetting claim disclosed by affidavit within time.
  3. 3 Whether the affidavit verifying the statutory demand sufficiently verifies the debt as 'due and payable'.

Ratio Decidendi

There was a genuine dispute as to all but $53,622.30 of the debt claimed in the statutory demand; no offsetting claim was available within the meaning of s 459G as the necessary facts were not raised in the supporting affidavit filed within 21 days; the affidavit verifying the statutory demand was sufficient; therefore, the demand should be varied by substituting $53,622.30 for $310,212.50.

Court Disposition

Statutory demand varied by substituting a lower amount than the amount for which it was issued.

Orders

  • The statutory demand dated 30 January 2003 is varied by deleting the sum of $310,212.50 and substituting $53,622.30.
  • The demand has effect as so varied from when it was served on Chadah Pty Ltd.