Tablecloths.com.au Pty Ltd v Forbes (Aust) Pty Ltd [2005] NSWSC 1343

Tablecloths.com.au Pty Ltd v Forbes (Aust) Pty Ltd [2005] NSWSC 1343

The statutory demand was set aside principally because the Plaintiff demonstrated with sufficient particularity a genuine dispute as to whether the boiler operated in accordance with its specifications and whether the Defendant was entitled to the balance of the contract price. The demand also misdescribed the debt as a judgment debt when no such judgment was shown, and the Defendant's failure to clarify that error until the hearing caused unnecessary costs, justifying indemnity costs.

Jurisdiction
Australia
Judgment Date
16 December 2005
Procedural Posture
Application Under S.459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Ex Tempore Judgment
Outcome
Statutory demand set aside.
Legal Topics
['statutory Demand' 'genuine Dispute' 'defect in Statutory Demand' 'misdescription of Debt' 'substantial Injustice' 'indemnity Costs']
['corporations' 'insolvency' 'contract'] ['statutory Demand' 'genuine Dispute' 'defect in Statutory Demand' 'misdescription of Debt' 'substantial Injustice' 'indemnity Costs']

Case Brief

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Procedural Posture

Application Under S.459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the statutory demand contained a defect by misdescribing the alleged debt as a South Australian Magistrate Court judgment debt' 'Whether any defect in the statutory demand would cause substantial injustice within the meaning of s.459J of the Corporations Act 2001 (Cth)' 'Whether the Plaintiff demonstrated a genuine dispute as to the existence of the debt' "Whether the Defendant should pay the Plaintiff's costs on an indemnity basis"]

Ratio Decidendi

The statutory demand was set aside principally because the Plaintiff demonstrated with sufficient particularity a genuine dispute as to whether the boiler operated in accordance with its specifications and whether the Defendant was entitled to the balance of the contract price. The demand also misdescribed the debt as a judgment debt when no such judgment was shown, and the Defendant's failure to clarify that error until the hearing caused unnecessary costs, justifying indemnity costs.

Court Disposition

Statutory demand set aside.

Orders

  • ['The statutory demand served by the Defendant dated 22 August 2005 is set aside.' "The Defendant will pay the Plaintiff's costs of the application on an indemnity basis."]