Emibarb Pty Limited v Schipp [2001] NSWSC 761

Emibarb Pty Limited v Schipp [2001] NSWSC 761

The statutory demand was based on a final and conclusive judgment of the Supreme Court of New South Wales, confirmed by the Court of Appeal. The plaintiff's newly instituted proceedings seeking to set aside that judgment did not create any genuine dispute about the existence of the debt. The alleged fresh facts did not satisfy the criteria for fresh evidence and no fraud was alleged. There was also no other reason under section 459J to set aside the demand. Accordingly, no ground for setting aside the statutory demand was established.

Jurisdiction
Australia
Judgment Date
17 August 2001
Procedural Posture
Application by Originating Process to Set Aside a Statutory Demand Under the Corporations Law/corporations Act / Hearing of Originating Process Before Master Mc Laughlin
Outcome
Originating process dismissed.
Legal Topics
['statutory Demand' 'genuine Dispute' 'setting Aside Statutory Demand' 'finality of Litigation' 'res Judicata' 'fresh Evidence' 'judgment Allegedly Tainted by Fraud']
['corporations Law' 'equity' 'civil Procedure'] ['statutory Demand' 'genuine Dispute' 'setting Aside Statutory Demand' 'finality of Litigation' 'res Judicata' 'fresh Evidence' 'judgment Allegedly Tainted by Fraud']

Case Brief

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Procedural Posture

Application by Originating Process to Set Aside a Statutory Demand Under the Corporations Law/corporations Act / Hearing of Originating Process Before Master Mc Laughlin

Legal Issues

  1. 1 ['Whether there was a genuine dispute about the existence of the debt to which the statutory demand related under section 459H.' 'Whether the proceedings commenced by the plaintiff and Mr Harrison to set aside the earlier judgment and obtain a new trial affected the final and conclusive nature of that judgment debt.' 'Whether there was some other reason under section 459J(1)(b) why the statutory demand should be set aside.' "Whether alleged fresh facts or fresh evidence, absent an allegation of fraud, could support the plaintiff's position."]

Ratio Decidendi

The statutory demand was based on a final and conclusive judgment of the Supreme Court of New South Wales, confirmed by the Court of Appeal. The plaintiff's newly instituted proceedings seeking to set aside that judgment did not create any genuine dispute about the existence of the debt. The alleged fresh facts did not satisfy the criteria for fresh evidence and no fraud was alleged. There was also no other reason under section 459J to set aside the demand. Accordingly, no ground for setting aside the statutory demand was established.

Court Disposition

Originating process dismissed.

Orders

  • ['The originating process be dismissed.' 'The plaintiff pay the costs of the defendant.' 'The Exhibits may be returned.']