Oberon Property Holdings Pty Ltd v R & D Panelform Limited Partnership [2009] NSWSC 1429

Oberon Property Holdings Pty Ltd v R & D Panelform Limited Partnership [2009] NSWSC 1429

The plaintiff established a genuine dispute about the existence of the claimed debts. It was arguable that the defendant had an implied obligation to notify the plaintiff of expected additional costs and, wherever possible, agree the price before executing the alleged variation, and failure to do so could leave the plaintiff with no contractual obligation to pay the claimed additional price. There was also a conflict of evidence about the bracing costs sufficient to constitute a genuine dispute. Accordingly, the statutory demand was set aside.

Jurisdiction
Australia
Judgment Date
11 December 2009
Procedural Posture
Application Under S 459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Ex Tempore Judgment on Originating Process
Outcome
Statutory demand set aside
Legal Topics
['statutory Demand' 'genuine Dispute' 'contract Variations' 'construction of Building Contract']
['corporations' 'insolvency' 'building and Construction' 'contract'] ['statutory Demand' 'genuine Dispute' 'contract Variations' 'construction of Building Contract']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether there was a genuine dispute about the existence or amount of the debts to which the statutory demand related under s 459H(1)(a) of the Corporations Act 2001 (Cth).' 'Whether the defendant was contractually entitled to claim additional amounts for alleged contract variations concerning SL82 mesh and additional bracing costs.' 'Whether the plaintiff could rely on a dispute about the bracing variation in light of Graywinter Properties v Gas and Fuel Corporation (1996) 21 FCR 581.']

Ratio Decidendi

The plaintiff established a genuine dispute about the existence of the claimed debts. It was arguable that the defendant had an implied obligation to notify the plaintiff of expected additional costs and, wherever possible, agree the price before executing the alleged variation, and failure to do so could leave the plaintiff with no contractual obligation to pay the claimed additional price. There was also a conflict of evidence about the bracing costs sufficient to constitute a genuine dispute. Accordingly, the statutory demand was set aside.

Court Disposition

Statutory demand set aside

Orders

  • ['The statutory demand dated 17 April 2009 and served by the defendant on the plaintiff on about 23 April 2009 for an amount of $19,957.91 is set aside.' "The defendant pay the plaintiff's costs as agreed or assessed."]