Jemzone v Trytan [2002] NSWSC 395

Jemzone v Trytan [2002] NSWSC 395

The plaintiff established a genuine dispute or genuine offsetting claim, to the standard in Eyota, in relation to variation credits and delay losses. The defendant's Final Account was not a claim for a progress payment under the construction contract or the Building and Construction Industry Security of Payment Act 1999 (NSW), so the Act did not create a statutory debt overriding the genuine dispute or offsetting claim. The statutory demand was therefore set aside under s 459H(3) of the Corporations Act 2001 (Cth).

Jurisdiction
Australia
Judgment Date
07 May 2002
Procedural Posture
Application to Set Aside a Statutory Demand / Judgment on Originating Process Filed Under S 459 G of the Corporations Act 2001 (cth)
Outcome
Statutory demand set aside.
Legal Topics
['statutory Demand' 'genuine Dispute' 'offsetting Claim' 'progress Payment' 'payment Claim' 'final Account' 'construction Contract']
['corporations' 'building and Construction' 'security of Payment'] ['statutory Demand' 'genuine Dispute' 'offsetting Claim' 'progress Payment' 'payment Claim' 'final Account' 'construction Contract']

Case Brief

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Procedural Posture

Application to Set Aside a Statutory Demand / Judgment on Originating Process Filed Under S 459 G of the Corporations Act 2001 (cth)

Legal Issues

  1. 1 ['Whether there was a genuine dispute between the plaintiff and defendant as to the existence or amount of the debt claimed in the statutory demand.' "Whether the plaintiff had a genuine offsetting claim exceeding the unpaid balance of the defendant's claim." "Whether the defendant's Final Account of 14 March 2001 was a claim for a progress payment under the Building and Construction Industry Security of Payment Act 1999 (NSW)." "Whether the plaintiff's failure to provide a payment schedule under the Building and Construction Industry Security of Payment Act 1999 (NSW) made the amount claimed recoverable as a statutory debt despite any genuine dispute or offsetting claim."]

Ratio Decidendi

The plaintiff established a genuine dispute or genuine offsetting claim, to the standard in Eyota, in relation to variation credits and delay losses. The defendant's Final Account was not a claim for a progress payment under the construction contract or the Building and Construction Industry Security of Payment Act 1999 (NSW), so the Act did not create a statutory debt overriding the genuine dispute or offsetting claim. The statutory demand was therefore set aside under s 459H(3) of the Corporations Act 2001 (Cth).

Court Disposition

Statutory demand set aside.

Orders

  • ['Order setting aside the statutory demand.' 'Parties to be heard on costs.']