Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553

Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553

A statutory demand founded on a judgment debt arising from an adjudication determination under the Building and Construction Industry (Security of Payment) Act 1999 can in principle be reduced under section 459H of the Corporations Act 2001 (Cth) where the company establishes a genuine offsetting claim. The plaintiff established genuine offsetting claims for the disputed invoice and for losses from removal of the gas meter, but not for the inadequately particularised alleged overpayment on other works. The substantiated offsetting claims reduced the demand to an amount above the statutory minimum, so the demand was varied rather than set aside.

Jurisdiction
Australia
Judgment Date
11 June 2004
Procedural Posture
Application to Set Aside or Vary a Statutory Demand on the Basis of an Offsetting Claim / Ex Tempore Judgment in the Equity Division, Corporations List
Outcome
Offsetting claim permissible in principle; statutory demand reduced and varied rather than set aside; defendant ordered to pay one half of the plaintiff's costs.
Legal Topics
['statutory Demand' 'offsetting Claim' 'building and Construction Industry (security of Payment) Act 1999 Adjudication Determination' 'judgment Debt' 'unconscionable Conduct' 'variation of Statutory Demand']
['corporations' 'building and Construction' 'statutory Interpretation' 'contract'] ['statutory Demand' 'offsetting Claim' 'building and Construction Industry (security of Payment) Act 1999 Adjudication Determination' 'judgment Debt' 'unconscionable Conduct' 'variation of Statutory Demand']

Case Brief

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Procedural Posture

Application to Set Aside or Vary a Statutory Demand on the Basis of an Offsetting Claim / Ex Tempore Judgment in the Equity Division, Corporations List

Legal Issues

  1. 1 ['Whether a judgment debt arising from an adjudication determination under the Building and Construction Industry (Security of Payment) Act 1999 can be the subject of an offsetting claim for the purposes of section 459H(5) of the Corporations Act 2001 (Cth).' 'Whether the plaintiff established genuine offsetting claims concerning the disputed invoice, alleged overcharging on other works, and loss caused by removal of the gas meter.' 'Whether the statutory demand should be set aside or varied.']

Ratio Decidendi

A statutory demand founded on a judgment debt arising from an adjudication determination under the Building and Construction Industry (Security of Payment) Act 1999 can in principle be reduced under section 459H of the Corporations Act 2001 (Cth) where the company establishes a genuine offsetting claim. The plaintiff established genuine offsetting claims for the disputed invoice and for losses from removal of the gas meter, but not for the inadequately particularised alleged overpayment on other works. The substantiated offsetting claims reduced the demand to an amount above the statutory minimum, so the demand was varied rather than set aside.

Court Disposition

Offsetting claim permissible in principle; statutory demand reduced and varied rather than set aside; defendant ordered to pay one half of the plaintiff's costs.

Orders

  • ['Pursuant to section 459H(4) Corporations Act 2001 (Cth), the statutory demand is varied so that it relates to an amount of $9,804.02.' 'The demand is declared to have had effect, as so varied, from the date when the demand was served on the company.' "The defendant is to pay one half of the plaintiff's costs."]