Sultana Investments Pty Ltd v Cellcom Pty Ltd [2009] NSWSC 392

Sultana Investments Pty Ltd v Cellcom Pty Ltd [2009] NSWSC 392

Sultana Investments Pty Ltd failed to establish an off-setting claim under s 459H(1)(b) due to procedural and substantive obstacles, including issue estoppel stemming from prior Queensland proceedings and lack of evidence of misleading representations. However, there was a genuine dispute as to the amount of debt beyond the principal judgment sum due to lack of specification of interest, warranting variation of the statutory demand to the admitted amount of $121,000.

Jurisdiction
Australia
Judgment Date
15 May 2009
Procedural Posture
Application Under Corporations Act 2001 S 459 G to Set Aside or Vary Statutory Demand / Judgment
Outcome
Order varying statutory demand by reducing amount to $121,000; plaintiff to pay defendant's costs.
Legal Topics
['statutory Demand' 'winding Up in Insolvency' 'off Setting Claim' 'genuine Dispute' 'interest Quantification']
['corporations' 'equity'] ['statutory Demand' 'winding Up in Insolvency' 'off Setting Claim' 'genuine Dispute' 'interest Quantification']

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Procedural Posture

Application Under Corporations Act 2001 S 459 G to Set Aside or Vary Statutory Demand / Judgment

Legal Issues

  1. 1 ['Whether the plaintiff has established an off-setting claim under s 459H(1)(b)' 'Whether there is a genuine dispute about the amount of the debt under s 459H(1)(a)' 'Whether a defect in the statutory demand under s 459J(1)(a) warrants setting aside or varying the demand']

Ratio Decidendi

Sultana Investments Pty Ltd failed to establish an off-setting claim under s 459H(1)(b) due to procedural and substantive obstacles, including issue estoppel stemming from prior Queensland proceedings and lack of evidence of misleading representations. However, there was a genuine dispute as to the amount of debt beyond the principal judgment sum due to lack of specification of interest, warranting variation of the statutory demand to the admitted amount of $121,000.

Court Disposition

Order varying statutory demand by reducing amount to $121,000; plaintiff to pay defendant's costs.

Orders

  • ['Statutory demand dated 25 November 2008 served by Cellcom on Sultana to be varied by omitting $152,095.34 and inserting $121,000.00' "Schedule of demand to be replaced with 'Judgment debt in the sum of $121,000.00 pursuant to order 3 of the orders annexed hereto'" 'Statutory demand to have effect as so varied from...