In the matter of Erma Properties Pty Limited [2017] NSWSC 1748

In the matter of Erma Properties Pty Limited [2017] NSWSC 1748

The Demand was not set aside because Erma did not establish a genuine dispute: there was no evidence of an agreement conditioning payment to A Plus on Erma first being paid by its clients, no evidence that Erma had not been paid by its clients for the relevant invoices, and no arguable basis that the payments relied on should have been applied to the invoices in the Demand rather than earlier invoices. Erma also failed to establish an offsetting claim because, even assuming alleged deficiencies by A Plus could found such claims, the admissible evidence did not establish or quantify loss sufficient to show that the offsetting claims exceeded or reduced the Demand. The same failure to prove...

Jurisdiction
Australia
Judgment Date
14 December 2017
Procedural Posture
Application to Set Aside Creditor's Statutory Demand / Originating Process Filed by the Plaintiff Under Ss 459 G, 459 H and 459 J of the Corporations Act 2001 (cth) Dismissed
Outcome
Originating Process dismissed with costs.
Legal Topics
['winding Up' "creditor's Statutory Demand" 'genuine Dispute' 'offsetting Claim' 'substantial Defect' 'some Other Reason to Set Aside Statutory Demand' 'limiting Use of Evidence']
['corporations Law' 'evidence'] ['winding Up' "creditor's Statutory Demand" 'genuine Dispute' 'offsetting Claim' 'substantial Defect' 'some Other Reason to Set Aside Statutory Demand' 'limiting Use of Evidence']

Case Brief

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Procedural Posture

Application to Set Aside Creditor's Statutory Demand / Originating Process Filed by the Plaintiff Under Ss 459 G, 459 H and 459 J of the Corporations Act 2001 (cth) Dismissed

Legal Issues

  1. 1 ['Whether there was a genuine dispute about the existence or amount of the debt the subject of the statutory demand under s 459H(1)(a) of the Corporations Act 2001 (Cth).' 'Whether Erma established an offsetting claim under s 459H(1)(b) of the Corporations Act 2001 (Cth).' 'Whether the demand should be set aside for a substantial defect or some other reason under s 459J of the Corporations Act 2001 (Cth).']

Ratio Decidendi

The Demand was not set aside because Erma did not establish a genuine dispute: there was no evidence of an agreement conditioning payment to A Plus on Erma first being paid by its clients, no evidence that Erma had not been paid by its clients for the relevant invoices, and no arguable basis that the payments relied on should have been applied to the invoices in the Demand rather than earlier invoices. Erma also failed to establish an offsetting claim because, even assuming alleged deficiencies by A Plus could found such claims, the admissible evidence did not establish or quantify loss sufficient to show that the offsetting claims exceeded or reduced the Demand. The same failure to prove...

Court Disposition

Originating Process dismissed with costs.

Orders

  • ["The Originating Process seeking to set aside the creditor's statutory demand served by the Defendant on 17 July 2017 be dismissed with costs."]