In the matter of Diveva Pty Limited [2015] NSWSC 509

In the matter of Diveva Pty Limited [2015] NSWSC 509

Diveva established offsetting claims exceeding the admitted debt through plausible, supported claims for losses arising from alleged defective asphalt supplied by PBM; these claims reached the threshold of serious questions to be tried for purposes of s 459H(1)(b) of the Corporations Act, thus the statutory demand must be set aside.

Jurisdiction
Australia
Judgment Date
05 May 2015
Procedural Posture
Application to Set Aside Statutory Demand / Final Judgment
Outcome
Creditor's statutory demand set aside; defendant to pay plaintiff's costs as agreed or assessed.
Legal Topics
['statutory Demand' 'winding Up' 'offsetting Claim' 'genuine Dispute' 'supply of Goods' 'damages for Breach of Contract']
['corporations Law'] ['statutory Demand' 'winding Up' 'offsetting Claim' 'genuine Dispute' 'supply of Goods' 'damages for Breach of Contract']

Case Brief

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Procedural Posture

Application to Set Aside Statutory Demand / Final Judgment

Legal Issues

  1. 1 ['Whether there is a genuine dispute as to the existence or amount of debt claimed in the statutory demand' 'Whether an offsetting claim has been established under s 459H(1)(b) of the Corporations Act 2001 (Cth)' 'Whether affidavit evidence as to profit margin is sufficient to support offsetting claim']

Ratio Decidendi

Diveva established offsetting claims exceeding the admitted debt through plausible, supported claims for losses arising from alleged defective asphalt supplied by PBM; these claims reached the threshold of serious questions to be tried for purposes of s 459H(1)(b) of the Corporations Act, thus the statutory demand must be set aside.

Court Disposition

Creditor's statutory demand set aside; defendant to pay plaintiff's costs as agreed or assessed.

Orders

  • ["Order that the creditor's statutory demand dated 24 November 2014 be set aside." "Defendant must pay the plaintiff's costs of the application as agreed or assessed."]