ETT Ltd v Carling Capital Partners Ltd [2010] NSWSC 215

ETT Ltd v Carling Capital Partners Ltd [2010] NSWSC 215

There was no debt owing as a liquidated sum for services claimed by the defendant because the additional work was not validly pre-approved pursuant to the retainer agreement and the only agreement about payment after the work related to the issue of options. Revocation of the options, if a breach, only gives rise to a claim for unliquidated damages, not suitable for a statutory demand. Further, the plaintiff established a real off-setting claim regarding alleged breach of fiduciary duty in the agreement to issue options.

Parties
Plaintiff: ETT Limited; Defendant: Carling Capital Partners Ltd
Jurisdiction
Australia
Judgment Date
11 March 2010
Procedural Posture
Application Under Corporations Act S 459 G / Hearing of Application to Set Aside Statutory Demand
Outcome
Statutory Demand set aside
Legal Topics
Statutory Demand, Genuine Dispute, Off Setting Claim
Corporations Law Equity Statutory Demand Genuine Dispute Off Setting Claim

Case Brief

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Parties

ETT Limited

Plaintiff

Carling Capital Partners Ltd

Defendant

Procedural Posture

Application Under Corporations Act S 459 G / Hearing of Application to Set Aside Statutory Demand

Legal Issues

  1. 1 Whether there is a genuine dispute as to the existence of the debt in the statutory demand
  2. 2 Whether the plaintiff has an off-setting claim against the defendant

Ratio Decidendi

There was no debt owing as a liquidated sum for services claimed by the defendant because the additional work was not validly pre-approved pursuant to the retainer agreement and the only agreement about payment after the work related to the issue of options. Revocation of the options, if a breach, only gives rise to a claim for unliquidated damages, not suitable for a statutory demand. Further, the plaintiff established a real off-setting claim regarding alleged breach of fiduciary duty in the agreement to issue options.

Court Disposition

Statutory Demand set aside

Orders

  • Statutory Demand is set aside.
  • Defendant to pay the Plaintiff's costs of the proceedings.