Femley Pty Limited v Salken Engineering Pty Limited [1999] NSWSC 668

Femley Pty Limited v Salken Engineering Pty Limited [1999] NSWSC 668

The statutory demands were set aside because there was a genuine dispute as to the total amount claimed. The $50,000 component was genuinely disputed because acceptance of the design product type was disputed and no such design product type had been accepted by the plaintiffs. The $30,000 deposit component was also genuinely disputed because termination for breaches concerning panelling, cladding, and failure to commit to a completion date was arguable, and the plaintiffs had an arguable damages claim for panelling that could exceed $30,000.

Jurisdiction
Australia
Judgment Date
02 July 1999
Procedural Posture
Application to Set Aside Creditor's Statutory Demands Pursuant to Section 459 G of the Corporations Law / Hearing on Whether There Was a Genuine Dispute Under Section 459 H(1) of the Corporations Law
Outcome
The Court found a genuine dispute as to the totality of the amount claimed in the statutory demands and made an order in terms of prayer 1 in the summons, with costs to the plaintiffs.
Legal Topics
["creditor's Statutory Demand" 'genuine Dispute' 'offsetting Claim' 'deposit' 'contract Termination' 'panelling and Cladding' 'equitable Set Off']
['corporations Law' 'contract Law' 'equity'] ["creditor's Statutory Demand" 'genuine Dispute' 'offsetting Claim' 'deposit' 'contract Termination' 'panelling and Cladding' 'equitable Set Off']

Case Brief

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Procedural Posture

Application to Set Aside Creditor's Statutory Demands Pursuant to Section 459 G of the Corporations Law / Hearing on Whether There Was a Genuine Dispute Under Section 459 H(1) of the Corporations Law

Legal Issues

  1. 1 ['Whether the plaintiff companies established a genuine dispute about the existence or amount of the debts claimed in the statutory demands.' 'Whether there was a genuine dispute concerning the $50,000 component said to be payable upon successful completion and acceptance of the design product device.' 'Whether the $30,000 balance of the deposit was payable despite disputes about the contract, termination, and alleged breaches.' 'Whether any arguable damages claim relating to panelling or cladding equalled or exceeded the $30,000 balance of the deposit.']

Ratio Decidendi

The statutory demands were set aside because there was a genuine dispute as to the total amount claimed. The $50,000 component was genuinely disputed because acceptance of the design product type was disputed and no such design product type had been accepted by the plaintiffs. The $30,000 deposit component was also genuinely disputed because termination for breaches concerning panelling, cladding, and failure to commit to a completion date was arguable, and the plaintiffs had an arguable damages claim for panelling that could exceed $30,000.

Court Disposition

The Court found a genuine dispute as to the totality of the amount claimed in the statutory demands and made an order in terms of prayer 1 in the summons, with costs to the plaintiffs.

Orders

  • ['Order as in prayer 1 in the summons.' 'The defendant is to pay the costs of the plaintiffs.' "The plaintiffs have liberty to apply on seven days' notice to the defendant and to any other person affected for variation of order 2, to be exercised within fourteen days."]