In the matter of SBC Construction Pty Ltd [2019] NSWSC 310

In the matter of SBC Construction Pty Ltd [2019] NSWSC 310

Because the statutory demand was not accompanied by an affidavit at the time it was served for an amount not matching the judgment debt, a serious contravention of the statutory scheme occurred. The subsequent retrospective correction of the judgment did not cure the deficiency; accordingly, the demand must be set aside under s 459J(1)(b) without requiring payment into court.

Jurisdiction
Australia
Judgment Date
27 March 2019
Procedural Posture
Corporations Statutory Demand Setting Aside Application / Final Determination
Outcome
Statutory demand dated 30 April 2018 set aside; defendant ordered to pay plaintiff's costs.
Legal Topics
['statutory Demand' 'setting Aside Statutory Demand' 'judgment Debt' 'building and Construction Industry Security of Payment Act' 'costs Orders']
['corporations Law' 'construction Law'] ['statutory Demand' 'setting Aside Statutory Demand' 'judgment Debt' 'building and Construction Industry Security of Payment Act' 'costs Orders']

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Procedural Posture

Corporations Statutory Demand Setting Aside Application / Final Determination

Legal Issues

  1. 1 ['Whether statutory demand should be set aside under Corporations Act s 459J(1)(b) for some other reason' 'Whether the judgment debt at time of demand matched the amount claimed' 'Whether the demand should be set aside conditionally on payment into court' "Whether the correction of the District Court's judgment had retrospective effect for the purposes of statutory demand"]

Ratio Decidendi

Because the statutory demand was not accompanied by an affidavit at the time it was served for an amount not matching the judgment debt, a serious contravention of the statutory scheme occurred. The subsequent retrospective correction of the judgment did not cure the deficiency; accordingly, the demand must be set aside under s 459J(1)(b) without requiring payment into court.

Court Disposition

Statutory demand dated 30 April 2018 set aside; defendant ordered to pay plaintiff's costs.

Orders

  • ['The statutory demand dated 30 April 2018 served by the defendant on the plaintiff be set aside.' "The defendant pay the plaintiff's costs."]