Fleur De Lys Pty Limited v Jarrett [2004] FCA 1357

Fleur De Lys Pty Limited v Jarrett [2004] FCA 1357

The plaintiff established genuine offsetting claims exceeding the substantiated debt amount, including untaxed costs and a debt from earlier proceedings, thus requiring the statutory demand to be set aside pursuant to s 459H(1)(b) of the Corporations Act, subject to the condition that the plaintiff applies for assessment of costs.

Parties
Plaintiff: Fleur De Lys Pty Limited; Defendant: Kevin Jarrett
Jurisdiction
Australia
Judgment Date
22 October 2004
Procedural Posture
Corporations – Statutory Demand – Setting Aside / Hearing and Final Judgment on Application to Set Aside Statutory Demand
Outcome
Statutory demand set aside upon condition
Legal Topics
Statutory Demand, Offsetting Claim, Untaxed Costs, Costs Orders, Setting Aside Statutory Demand
Corporations Law Statutory Demand Offsetting Claim Untaxed Costs Costs Orders Setting Aside Statutory Demand

Case Brief

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Parties

Fleur De Lys Pty Limited

Plaintiff

Kevin Jarrett

Defendant

Procedural Posture

Corporations – Statutory Demand – Setting Aside / Hearing and Final Judgment on Application to Set Aside Statutory Demand

Legal Issues

  1. 1 Whether untaxed costs are capable of establishing existence of offsetting claim under s 459H(1)(b) of the Corporations Act 2001 (Cth)
  2. 2 Whether there is a genuine dispute about the debt for purposes of s 459H(1)(a)
  3. 3 Whether statutory demand should be set aside and on what terms

Ratio Decidendi

The plaintiff established genuine offsetting claims exceeding the substantiated debt amount, including untaxed costs and a debt from earlier proceedings, thus requiring the statutory demand to be set aside pursuant to s 459H(1)(b) of the Corporations Act, subject to the condition that the plaintiff applies for assessment of costs.

Court Disposition

Statutory demand set aside upon condition

Orders

  • The statutory demand served by the defendant on the plaintiff on 19 July 2004 be set aside on condition that the plaintiff makes application for an assessment under Division 6 of Part 11 of the Legal Profession Act 1987 (NSW) of the costs which it is entitled to receive from the defendant pursuant to the order made...
  • The defendant pay 75 per cent of the plaintiff's costs of these proceedings.