In the matter of Killard Excavation Pty Limited [2015] NSWSC 2028

In the matter of Killard Excavation Pty Limited [2015] NSWSC 2028

The success fee becomes payable only upon receipt of the recovered amount, not merely upon settlement or adjudication; accordingly, only amounts actually received are due and payable under the contract's terms, and the statutory demand must be varied to reflect that sum.

Source-derived case information.

Jurisdiction
Australia
Judgment Date
27 March 2015
Procedural Posture
Application to Set Aside Creditor's Statutory Demand / Principal Judgment
Outcome
Statutory demand varied; time for compliance extended; partial costs awarded.
Legal Topics
["creditor's Statutory Demand" 'genuine Dispute as to Debt' 'construction of Contract' 'defects in Statutory Demand']
['corporations' 'contract'] ["creditor's Statutory Demand" 'genuine Dispute as to Debt' 'construction of Contract' 'defects in Statutory Demand']

Source-derived case record

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Procedural Posture

Application to Set Aside Creditor's Statutory Demand / Principal Judgment

Legal Issues

  1. 1 ['Whether genuine dispute exists as to the debt claimed in statutory demand' 'Proper construction of contract for services regarding success fee' 'Effect of defect in address for service in statutory demand']

Ratio Decidendi

The success fee becomes payable only upon receipt of the recovered amount, not merely upon settlement or adjudication; accordingly, only amounts actually received are due and payable under the contract's terms, and the statutory demand must be varied to reflect that sum.

Court Disposition

Statutory demand varied; time for compliance extended; partial costs awarded.

Orders

  • ["The creditor's statutory demand dated 17 December 2014 is varied to $6,209.72 and has effect as so varied from service date." 'Time for compliance with the demand extended to 10 April 2015.' 'Declaration that under the fee agreement, success fee is payable only upon receipt of recovered amount.' "Defendant to pay...