In the matter of Cooperbrown Pty Ltd [2019] NSWSC 1341

In the matter of Cooperbrown Pty Ltd [2019] NSWSC 1341

The demand was set aside under s 459J(1)(b) of the Corporations Act 2001 (Cth) because it was not verified by affidavit although it included additional interest and a filing fee beyond the adjudication certificate that could be filed as a judgment under s 25 of the SOPA. The demand was also set aside because the judgment relied on was obtained through an affidavit that did not comply with s 25(2) of the SOPA, undermining the statutory scheme where the demand was treated as based on a judgment debt and was unverified.

Jurisdiction
Australia
Judgment Date
04 October 2019
Procedural Posture
Application Under Ss 459 H and 459 J of the Corporations Act 2001 (cth) to Set Aside a Creditor's Statutory Demand / Principal Judgment
Outcome
The Demand be set aside. The parties to be heard as to costs.
Legal Topics
["creditor's Statutory Demand" 'judgment Debt' 'adjudication Determination Registered as Judgment' 'verification by Affidavit' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'offsetting Claim']
['corporations' 'building and Construction' 'equity'] ["creditor's Statutory Demand" 'judgment Debt' 'adjudication Determination Registered as Judgment' 'verification by Affidavit' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'offsetting Claim']

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Procedural Posture

Application Under Ss 459 H and 459 J of the Corporations Act 2001 (cth) to Set Aside a Creditor's Statutory Demand / Principal Judgment

Legal Issues

  1. 1 ['Whether the statutory demand required verification by affidavit because it included interest and a filing fee not included in the adjudication certificate filed as a judgment under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether a judgment obtained under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) is a judgment debt for the purposes of s 459E(3) of the Corporations Act 2001 (Cth).' 'Whether the judgment supporting the demand was irregularly obtained because the affidavit accompanying the filing of the adjudication certificate did not comply with s 25(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether Cooperbrown established an offsetting claim for the purposes of s 459H(1)(b) of the Corporations Act 2001 (Cth).' 'Whether Re Douglas Aerospace Pty Ltd was wrongly decided.']

Ratio Decidendi

The demand was set aside under s 459J(1)(b) of the Corporations Act 2001 (Cth) because it was not verified by affidavit although it included additional interest and a filing fee beyond the adjudication certificate that could be filed as a judgment under s 25 of the SOPA. The demand was also set aside because the judgment relied on was obtained through an affidavit that did not comply with s 25(2) of the SOPA, undermining the statutory scheme where the demand was treated as based on a judgment debt and was unverified.

Court Disposition

The Demand be set aside. The parties to be heard as to costs.

Orders

  • ['The Demand be set aside.' 'The parties to be heard as to costs.']