Hebbel Constructions Pty Ltd v Bitar Pty Ltd [2022] NSWSC 1594

Hebbel Constructions Pty Ltd v Bitar Pty Ltd [2022] NSWSC 1594

The statutory demand was set aside under s 459J(1)(b) of the Corporations Act 2001 (Cth) because, given the ongoing partnership accounting, the stayed judgments, suspended cost certificates, admitted offsetting claims, and sufficient partnership assets to satisfy any legitimate claim, reliance on the demand was unconscionable, an abuse of process, or would result in substantial injustice.

Jurisdiction
Australia
Judgment Date
07 November 2022
Procedural Posture
Application to Set Aside Statutory Demand / Ex Tempore Judgment
Outcome
Application granted; statutory demand set aside
Legal Topics
['statutory Demand' 'offsetting Claim' 'abuse of Process' 'partnership Accounting']
['corporations Law' 'equity'] ['statutory Demand' 'offsetting Claim' 'abuse of Process' 'partnership Accounting']

Case Brief

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Procedural Posture

Application to Set Aside Statutory Demand / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the statutory demand should be set aside under s 459J(1)(b) of the Corporations Act 2001 (Cth) for 'some other reason'" 'Whether unconscionability, abuse of process or substantial injustice exists' 'Whether there are genuine offsetting claims']

Ratio Decidendi

The statutory demand was set aside under s 459J(1)(b) of the Corporations Act 2001 (Cth) because, given the ongoing partnership accounting, the stayed judgments, suspended cost certificates, admitted offsetting claims, and sufficient partnership assets to satisfy any legitimate claim, reliance on the demand was unconscionable, an abuse of process, or would result in substantial injustice.

Court Disposition

Application granted; statutory demand set aside

Orders

  • ['The statutory demand served by Bitar Pty Limited on 16 August 2022 is set aside.' "Bitar Pty Limited is to pay Hebbel Constructions Pty Limited's costs of the proceedings, such costs to be assessed on the indemnity basis from 1 November 2022."]