Project v TQM [2009] NSWSC 699

Project v TQM [2009] NSWSC 699

A statutory demand based on a judgment for progress payments under the Building & Construction Industry Security of Payment Act 1999 may be set aside where there is a genuine offsetting claim, as s 459H of the Corporations Act 2001 (Cth) is not subject to the limitations or intentions of the State Act.

Parties
Plaintiff: Project Venture Development No 11 Pty Limited; Defendant: TQM Design & Construct Pty Limited
Jurisdiction
Australia
Judgment Date
21 September 2009
Procedural Posture
Application to Set Aside Statutory Demand / Judgment
Outcome
Statutory demand set aside; costs awarded to plaintiff.
Legal Topics
Statutory Demand, Offsetting Claim, Building and Construction Industry Security of Payment Act 1999, Adjudication Determination
Corporations Law Construction Law Statutory Demand Offsetting Claim Building and Construction Industry Security of Payment Act 1999 Adjudication Determination

Case Brief

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Parties

Project Venture Development No 11 Pty Limited

Plaintiff

TQM Design & Construct Pty Limited

Defendant

Procedural Posture

Application to Set Aside Statutory Demand / Judgment

Legal Issues

  1. 1 Whether a genuine dispute or offsetting claim can exist in the face of a judgment for progress payments under the Building & Construction Industry Security of Payment Act 1999
  2. 2 Whether the Corporations Act allows for set-off against debts founded on such judgments

Ratio Decidendi

A statutory demand based on a judgment for progress payments under the Building & Construction Industry Security of Payment Act 1999 may be set aside where there is a genuine offsetting claim, as s 459H of the Corporations Act 2001 (Cth) is not subject to the limitations or intentions of the State Act.

Court Disposition

Statutory demand set aside; costs awarded to plaintiff.

Orders

  • Order 1 in the originating process made (statutory demand set aside).
  • Defendant to pay plaintiff's costs.