Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd (No 2) [2018] NSWCA 341

Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd (No 2) [2018] NSWCA 341

The earlier extension orders were materially affected by the Court's erroneous assumption that Grandview had commenced proceedings to vindicate its claim. Correcting that error, and because Grandview had taken no steps to commence such proceedings, had kept Budget out of its monies for nearly 12 months, and had an offsetting claim whose quantum was seriously contestable, the case was sufficiently distinguishable from Australian Beverage Distributors v Cranswick Premium Wines and Jem Developments v Hansen Yuncken to justify extending time only on the condition that Grandview pay $340,000 into Court.

Jurisdiction
Australia
Judgment Date
24 December 2018
Procedural Posture
Civil Procedure Application to Extend Time for Compliance With Statutory Demand for Payment / On the Papers; Review of Orders Made on 19 December 2018 and Application Concerning Extension Pending Summons Seeking Leave to Appeal and Any Appeal
Outcome
Orders (1) and (4) made on 19 December 2018 set aside; time for compliance with the statutory demand extended on condition that Grandview pay $340,000 into Court.
Legal Topics
['extension of Time for Compliance With Statutory Demand' 'setting Aside or Varying Court of Appeal Orders' 'payment Into Court as Condition of Extension' 'offsetting Claim' 'statutory Presumption of Insolvency']
['civil Procedure' 'corporations Law' 'judgments and Orders'] ['extension of Time for Compliance With Statutory Demand' 'setting Aside or Varying Court of Appeal Orders' 'payment Into Court as Condition of Extension' 'offsetting Claim' 'statutory Presumption of Insolvency']

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Procedural Posture

Civil Procedure Application to Extend Time for Compliance With Statutory Demand for Payment / On the Papers; Review of Orders Made on 19 December 2018 and Application Concerning Extension Pending Summons Seeking Leave to Appeal and Any Appeal

Legal Issues

  1. 1 ['Whether orders made on 19 December 2018 should be set aside or varied because they were affected by an error about whether Grandview had commenced proceedings to vindicate its claim.' 'Whether time for compliance with the statutory demand should be extended pending determination of the summons seeking leave to appeal and any appeal.' 'Whether any extension should be conditional on Grandview paying money into Court.']

Ratio Decidendi

The earlier extension orders were materially affected by the Court's erroneous assumption that Grandview had commenced proceedings to vindicate its claim. Correcting that error, and because Grandview had taken no steps to commence such proceedings, had kept Budget out of its monies for nearly 12 months, and had an offsetting claim whose quantum was seriously contestable, the case was sufficiently distinguishable from Australian Beverage Distributors v Cranswick Premium Wines and Jem Developments v Hansen Yuncken to justify extending time only on the condition that Grandview pay $340,000 into Court.

Court Disposition

Orders (1) and (4) made on 19 December 2018 set aside; time for compliance with the statutory demand extended on condition that Grandview pay $340,000 into Court.

Orders

  • ['Set aside orders (1) and (4) made on 19 December 2018.' 'Extend the time for compliance with the statutory demand served on 31 January 2018 until 7 days after judgment is delivered on the summons seeking leave to appeal and, if leave be granted, the appeal, on the condition that Grandview Ausbuilder Pty Ltd pay...