Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485

Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485

Mr Turco's affidavit paragraph and report were admissible, but there was a genuine dispute about the condition of winch 3 when returned and about whether the $49,000 insurance proceeds were held on trust for the defendant. The evidence did not permit the Court to identify any particular dollar amount not genuinely disputed. Further, any repair cost was not part of the debts identified in the statutory demand, which claimed replacement cost and rental for winch 3, so the demand could not be rewritten to substitute a different head of claim. The statutory demand was therefore set aside.

Jurisdiction
Australia
Judgment Date
27 May 2002
Procedural Posture
Application to Set Aside a Statutory Demand / Hearing of Application; Ex Tempore Judgment
Outcome
Statutory demand set aside.
Legal Topics
['admissibility of Expert Evidence' 'risk of Bias in Expert Evidence' 'statutory Demand' 'genuine Dispute' 'variation of Statutory Demand Under Section 459 H of the Corporations Act 2001 (cth)']
['evidence' 'corporations Law'] ['admissibility of Expert Evidence' 'risk of Bias in Expert Evidence' 'statutory Demand' 'genuine Dispute' 'variation of Statutory Demand Under Section 459 H of the Corporations Act 2001 (cth)']

Case Brief

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Procedural Posture

Application to Set Aside a Statutory Demand / Hearing of Application; Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether paragraph 14 of Mr Turco's affidavit and his report dated 24 September 2001 were admissible." 'Whether there was a genuine dispute about the existence or amount of the debt claimed in the statutory demand.' 'Whether the Court should vary or rewrite the statutory demand under section 459H of the Corporations Act 2001 (Cth) to refer to $49,000.' 'Whether any amount was not the subject of genuine dispute and could form the admitted total for section 459H purposes.']

Ratio Decidendi

Mr Turco's affidavit paragraph and report were admissible, but there was a genuine dispute about the condition of winch 3 when returned and about whether the $49,000 insurance proceeds were held on trust for the defendant. The evidence did not permit the Court to identify any particular dollar amount not genuinely disputed. Further, any repair cost was not part of the debts identified in the statutory demand, which claimed replacement cost and rental for winch 3, so the demand could not be rewritten to substitute a different head of claim. The statutory demand was therefore set aside.

Court Disposition

Statutory demand set aside.

Orders

  • ['The Statutory Demand served by the defendant on the plaintiff dated 18 January 2002 is set aside.' "The defendant is to pay the plaintiff's costs."]