Gabriel Hotels Pty Ltd v Corlita Pty Ltd [2010] NSWSC 826

Gabriel Hotels Pty Ltd v Corlita Pty Ltd [2010] NSWSC 826

The application was within time because the Court was satisfied on the balance of probabilities that the demand was delivered to the plaintiff's registered office no earlier than 25 March 2010. The plaintiff did not establish accord and satisfaction, and there was no genuine dispute that the demanded debt was due and payable. However, the plaintiff established a genuine offsetting claim for damages arising from the defendant's alleged failure to repair or replace the air-conditioning system on level two; that claim was sufficiently particularised and exceeded the amount claimed in the statutory demand. The statutory demand was therefore set aside, and costs followed the event.

Jurisdiction
Australia
Judgment Date
19 July 2010
Procedural Posture
Application Under S 459 G of the Corporations Act 2001 (cth) to Set Aside a Creditor's Statutory Demand / Ex Tempore Judgment on the Application
Outcome
Creditor's statutory demand set aside; defendant ordered to pay the plaintiff's costs.
Legal Topics
['statutory Demand' 'application to Set Aside Statutory Demand' 'time for Service' 'accord and Satisfaction' 'offsetting Claim' 'genuine Dispute' 'costs Follow the Event']
['corporations' 'civil Procedure' 'costs'] ['statutory Demand' 'application to Set Aside Statutory Demand' 'time for Service' 'accord and Satisfaction' 'offsetting Claim' 'genuine Dispute' 'costs Follow the Event']

Case Brief

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Procedural Posture

Application Under S 459 G of the Corporations Act 2001 (cth) to Set Aside a Creditor's Statutory Demand / Ex Tempore Judgment on the Application

Legal Issues

  1. 1 ['Whether the application to set aside the statutory demand was brought within the 21 day period required by s 459G of the Corporations Act 2001 (Cth).' 'Whether a payment of $4,979.42 made on 14 January 2010 was made by way of accord and satisfaction of all debts due by the plaintiff to the defendant.' 'Whether the plaintiff had an offsetting claim within the meaning of s 459H of the Corporations Act 2001 (Cth) exceeding the amount claimed in the statutory demand.' "Whether the defendant should pay the plaintiff's costs."]

Ratio Decidendi

The application was within time because the Court was satisfied on the balance of probabilities that the demand was delivered to the plaintiff's registered office no earlier than 25 March 2010. The plaintiff did not establish accord and satisfaction, and there was no genuine dispute that the demanded debt was due and payable. However, the plaintiff established a genuine offsetting claim for damages arising from the defendant's alleged failure to repair or replace the air-conditioning system on level two; that claim was sufficiently particularised and exceeded the amount claimed in the statutory demand. The statutory demand was therefore set aside, and costs followed the event.

Court Disposition

Creditor's statutory demand set aside; defendant ordered to pay the plaintiff's costs.

Orders

  • ["Order that the creditor's statutory demand dated 23 March 2010 served on the plaintiff by the defendant be set aside." "Order that the defendant pay the plaintiff's costs."]