Pearson's Products Pty Ltd v C P Technologies Pty Ltd [1999] NSWSC 575

Pearson's Products Pty Ltd v C P Technologies Pty Ltd [1999] NSWSC 575

The statutory demand was set aside because the plaintiff had a genuine off-setting claim, by way of cross-demand, arising after the commencement of the defendant's winding up and apparently worth about $130,000, which exceeded either the $10,000 due as at the date of the demand or the $51,195.78 claimed by the defendant; s 459H did not require the plaintiff to establish a s 553C set-off.

Jurisdiction
Australia
Judgment Date
24 May 1999
Procedural Posture
Application to Set Aside a Statutory Demand / Judgment
Outcome
Statutory demand set aside; defendant to pay the plaintiff's costs, with further consideration reserved on indemnity costs and possible judicial advice or cross-claim issues.
Legal Topics
['statutory Demand' 'off Setting Claim' 'cross Demand' 'mutual Credits and Mutual Debts' 'claims Arising After Commencement of Winding Up' 'instalment Debt Under Deed']
['corporations Law' 'insolvency Law'] ['statutory Demand' 'off Setting Claim' 'cross Demand' 'mutual Credits and Mutual Debts' 'claims Arising After Commencement of Winding Up' 'instalment Debt Under Deed']

Case Brief

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Procedural Posture

Application to Set Aside a Statutory Demand / Judgment

Legal Issues

  1. 1 ['Whether the statutory demand for $51,195.78 should be set aside under s 459H of the Corporations Law because the plaintiff had an off-setting claim against the defendant.' 'Whether the whole debt under the deed was due and payable on 22 December 1998, or only the instalment of $10,000 then due.' 'Whether an off-setting claim for the purposes of s 459H of the Corporations Law requires a set-off under s 553C.' "How claims arising after commencement of winding up are to be treated where both the plaintiff's claim and defendant's claim arose after the deemed commencement of winding up."]

Ratio Decidendi

The statutory demand was set aside because the plaintiff had a genuine off-setting claim, by way of cross-demand, arising after the commencement of the defendant's winding up and apparently worth about $130,000, which exceeded either the $10,000 due as at the date of the demand or the $51,195.78 claimed by the defendant; s 459H did not require the plaintiff to establish a s 553C set-off.

Court Disposition

Statutory demand set aside; defendant to pay the plaintiff's costs, with further consideration reserved on indemnity costs and possible judicial advice or cross-claim issues.

Orders

  • ['The statutory demand should be set aside.' "The defendant should pay the plaintiff's costs of the proceedings." 'Further consideration was reserved as to whether costs should be on the indemnity basis and whether the liquidator should file a cross-claim for judicial advice or otherwise.']