Max Cooper v Booth [2003] NSWSC 929

Max Cooper v Booth [2003] NSWSC 929

The plaintiff had shown a genuine offsetting claim of $27,231. Section 25(4) of the Building and Construction Industry Security of Payment Act 1999 was confined to proceedings to set aside the judgment debt and did not bar separate proceedings under s459G of the Corporations Act 2001 to set aside or vary a statutory demand. Section 32 preserved civil proceedings and contractual rights, and the adjudicator's determination was only an interim determination for progress payment purposes, not a final determination giving rise to res judicata. The statutory demand was therefore varied under s459H by reducing it to the undisputed balance of $24,110.23.

Jurisdiction
Australia
Judgment Date
14 November 2003
Procedural Posture
Application to Set Aside or Vary a Statutory Demand / Judgment
Outcome
Statutory demand varied by reducing it to $24,110.23; costs to be heard.
Legal Topics
['statutory Demand' 'offsetting Claim' 'building and Construction Industry Security of Payment Act 1999 Adjudication' 'res Judicata' 'issue Estoppel' 'defective Work Set Off']
['corporations Law' 'building and Construction Law'] ['statutory Demand' 'offsetting Claim' 'building and Construction Industry Security of Payment Act 1999 Adjudication' 'res Judicata' 'issue Estoppel' 'defective Work Set Off']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application to Set Aside or Vary a Statutory Demand / Judgment

Legal Issues

  1. 1 ['Whether the plaintiff could rely on an offsetting claim for defective work to set aside or vary a statutory demand based on an adjudication certificate registered as a judgment under the Building and Construction Industry Security of Payment Act 1999.' 'Whether s 25(4) of the Building and Construction Industry Security of Payment Act 1999 prevented the plaintiff from raising an offsetting claim in proceedings to set aside a statutory demand.' "Whether the adjudicator's determination gave rise to res judicata or issue estoppel preventing the plaintiff's contractual claim."]

Ratio Decidendi

The plaintiff had shown a genuine offsetting claim of $27,231. Section 25(4) of the Building and Construction Industry Security of Payment Act 1999 was confined to proceedings to set aside the judgment debt and did not bar separate proceedings under s459G of the Corporations Act 2001 to set aside or vary a statutory demand. Section 32 preserved civil proceedings and contractual rights, and the adjudicator's determination was only an interim determination for progress payment purposes, not a final determination giving rise to res judicata. The statutory demand was therefore varied under s459H by reducing it to the undisputed balance of $24,110.23.

Court Disposition

Statutory demand varied by reducing it to $24,110.23; costs to be heard.

Orders

  • ['Pursuant to s459H of the Corporations Act 2001, the statutory demand is varied by reducing it to $24,110.23.' 'The parties are to be heard as to costs.']