Ozy Homewares v Wesgordon [2007] NSWSC 982

Ozy Homewares v Wesgordon [2007] NSWSC 982

The statutory demand was set aside under s 459J(1)(b) because the judgment debt arose from the statutory regime in the Building and Construction Industry Security of Payment Act 1999 (NSW), which had prevented Ozy from raising defences or cross-claims that, on the evidence, met the low threshold of arguability and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 August 2007
Procedural Posture
Application Under S 459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Ex Tempore Judgment
Outcome
Statutory demand set aside
Legal Topics
['statutory Demand' 'genuine Dispute' 'judgment Debt' 'security of Payment' 'restitution' 'payment Into Court']
['corporations' 'building and Construction'] ['statutory Demand' 'genuine Dispute' 'judgment Debt' 'security of Payment' 'restitution' 'payment Into Court']

Source-derived case record

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

Legal Issues

  1. 1 ['Whether a statutory demand based on a Local Court summary judgment under s 15 of the Building and Construction Industry Security of Payment Act 1999 (NSW) should be set aside where the applicant was precluded from raising a defence or cross-claim in those proceedings.' 'Whether the judgment debt precluded a genuine dispute as to the existence of the debt by reason of res judicata.' 'Whether the circumstances constituted some other reason to set aside the demand under s 459J(1)(b) of the Corporations Act 2001 (Cth).' 'Whether payment into Court should be imposed as a condition under s 459M of the Corporations Act 2001 (Cth).']

Ratio Decidendi

The statutory demand was set aside under s 459J(1)(b) because the judgment debt arose from the statutory regime in the Building and Construction Industry Security of Payment Act 1999 (NSW), which had prevented Ozy from raising defences or cross-claims that, on the evidence, met the low threshold of arguability and could lead to restitution. Those circumstances constituted another reason for setting aside the demand, and did not warrant a condition requiring payment into Court under s 459M.

Court Disposition

Statutory demand set aside

Orders

  • ['The statutory demand dated 21 June 2007 for the sum of $48,739,79 served by the defendant on the plaintiff on 22 June 2007 be set aside.' "The defendant is to pay the plaintiff's costs of the proceedings."]