Greenaways Australia Pty Ltd v CBC Management Pty Ltd [2004] NSWSC 1186

Greenaways Australia Pty Ltd v CBC Management Pty Ltd [2004] NSWSC 1186

The plaintiff has established a genuine and quantifiable offsetting claim exceeding the judgment debt underpinning the statutory demand, thus entitling it to have the demand set aside under s.459H of the Corporations Act 2001 (Cth). Proceedings may be continued with leave, as doing so does not interfere with the...

Source-derived case information.

Parties
Plaintiff: Greenaways Australia Pty Ltd; Defendant: CBC Management Pty Ltd (In Liquidation)
Jurisdiction
Australia
Judgment Date
10 December 2004
Procedural Posture
Application to Set Aside Statutory Demand / Judgment
Outcome
Statutory demand set aside; leave to continue proceedings granted; costs to the plaintiff.
Legal Topics
Statutory Demand, Offsetting Claim, Progress Payments, Winding Up, Adjudication Certificate
Corporations Law Building and Construction Law Statutory Demand Offsetting Claim Progress Payments Winding Up Adjudication Certificate

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Parties

Greenaways Australia Pty Ltd

Plaintiff

CBC Management Pty Ltd (In Liquidation)

Defendant

Procedural Posture

Application to Set Aside Statutory Demand / Judgment

Legal Issues

  1. 1 Whether there exists a genuine offsetting claim under s.459H(1)(b) of the Corporations Act 2001 (Cth)
  2. 2 Whether the Building and Construction Industry Security of Payment Act 1999 precludes offsetting claims against judgment debts arising from adjudication certificates
  3. 3 Whether leave should be granted under ss.440D and 500(2) of the Corporations Act to continue proceedings against a company in liquidation

Ratio Decidendi

The plaintiff has established a genuine and quantifiable offsetting claim exceeding the judgment debt underpinning the statutory demand, thus entitling it to have the demand set aside under s.459H of the Corporations Act 2001 (Cth). Proceedings may be continued with leave, as doing so does not interfere with the company's administration.

Court Disposition

Statutory demand set aside; leave to continue proceedings granted; costs to the plaintiff.

Orders

  • Grant leave to the plaintiff nunc pro tunc under ss.440D and 500(2) of the Corporations Act 2001 (Cth) to continue proceedings after 24 September 2004 and 21 October 2004 respectively.
  • Order that the statutory demand dated 4 August 2004 served on the plaintiff by the defendant be set aside.