In the matter of Forte Sydney Construction Pty Ltd [2024] NSWSC 495

In the matter of Forte Sydney Construction Pty Ltd [2024] NSWSC 495

Forte established at least a plausible contention requiring investigation that a substantial part of the amount claimed in the demand, being the second retention amount, was not presently due and payable. Defects had been notified to Arctec before 11 May 2022, and cl 10.5(c) of the subcontract provided for release only after proper rectification, as determined by Forte, of all notified defects. There was no suggestion that Forte had made such a determination. That gave rise to some other reason under s 459J(1)(b) of the Corporations Act 2001 (Cth) to set aside the demand in its entirety.

Jurisdiction
Australia
Judgment Date
24 April 2024
Procedural Posture
Application to Set Aside a Creditor's Statutory Demand / Originating Process Filed 31 January 2024; Heard and Orders Made 24 April 2024
Outcome
Creditor's statutory demand set aside.
Legal Topics
["creditor's Statutory Demand" 'application to Set Aside Statutory Demand' 'debt Due and Payable' 'retention Amount' 'genuine Dispute' 'some Other Reason to Set Aside Demand']
['corporations' 'insolvency' 'building and Construction'] ["creditor's Statutory Demand" 'application to Set Aside Statutory Demand' 'debt Due and Payable' 'retention Amount' 'genuine Dispute' 'some Other Reason to Set Aside Demand']

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Procedural Posture

Application to Set Aside a Creditor's Statutory Demand / Originating Process Filed 31 January 2024; Heard and Orders Made 24 April 2024

Legal Issues

  1. 1 ["Whether the amount claimed in the creditor's statutory demand was due and payable by Forte to Arctec." 'Whether there was a genuine dispute or offsetting claim for the purposes of s 459H of the Corporations Act 2001 (Cth).' 'Whether there was some other reason to set aside the statutory demand under s 459J(1)(b) of the Corporations Act 2001 (Cth).']

Ratio Decidendi

Forte established at least a plausible contention requiring investigation that a substantial part of the amount claimed in the demand, being the second retention amount, was not presently due and payable. Defects had been notified to Arctec before 11 May 2022, and cl 10.5(c) of the subcontract provided for release only after proper rectification, as determined by Forte, of all notified defects. There was no suggestion that Forte had made such a determination. That gave rise to some other reason under s 459J(1)(b) of the Corporations Act 2001 (Cth) to set aside the demand in its entirety.

Court Disposition

Creditor's statutory demand set aside.

Orders

  • ["The Creditor's Statutory Demand dated 10 January 2024 issued by Arctec Aluminium Pty Ltd to Forte Sydney Construction Pty Ltd be set aside." 'Arctec Aluminium Pty Ltd pay the costs of Forte Sydney Construction Pty Ltd of and incidental to the proceedings, as agreed or as assessed.']