In the matter of Sydney Hire NSW Pty Ltd [2023] NSWSC 1580

In the matter of Sydney Hire NSW Pty Ltd [2023] NSWSC 1580

The statutory demand was set aside because the amount of costs claimed had not been determined by a gross sum costs order, agreement, or assessment, so no costs debt was due and payable when the Demand was served. In any event, the existence and amount of any debt were genuinely disputed, and the evidence did not...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 December 2023
Procedural Posture
Application to Set Aside a Creditor's Statutory Demand / Principal Judgment
Outcome
Creditor's statutory demand set aside; Defendant ordered to pay the Plaintiff's costs on an indemnity basis.
Legal Topics
['statutory Demand' 'genuine Dispute' 'debt Due and Payable' 'costs Assessment' 'indemnity Costs']
['corporations' 'costs'] ['statutory Demand' 'genuine Dispute' 'debt Due and Payable' 'costs Assessment' 'indemnity Costs']

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Procedural Posture

Application to Set Aside a Creditor's Statutory Demand / Principal Judgment

Legal Issues

  1. 1 ['Whether there was a genuine dispute about the existence or amount of the debt to which the statutory demand related under s 459H(1) of the Corporations Act 2001 (Cth).' 'Whether there was some other reason to set aside the statutory demand under s 459J(1)(b) of the Corporations Act 2001 (Cth).' "Whether a costs order, before agreement or assessment of the amount of costs, gave rise to a debt due and payable capable of supporting a creditor's statutory demand." 'Whether the Plaintiff should receive its costs of the application on an indemnity basis.']

Ratio Decidendi

The statutory demand was set aside because the amount of costs claimed had not been determined by a gross sum costs order, agreement, or assessment, so no costs debt was due and payable when the Demand was served. In any event, the existence and amount of any debt were genuinely disputed, and the evidence did not permit identification of a substantiated amount. Kretchmer's substantive position was unarguable in light of the correspondence and case law, justifying indemnity costs for SHN.

Court Disposition

Creditor's statutory demand set aside; Defendant ordered to pay the Plaintiff's costs on an indemnity basis.

Orders

  • ["The creditor's statutory demand dated 11 August 2022 issued by Kretchmer Enterprises Pty Ltd to Sydney Hire NSW Pty Ltd be set aside." "The Defendant pay the Plaintiff's costs of and incidental to the proceedings, on an indemnity basis, as assessed or as agreed."]