Tatlers.com.au Pty Ltd v Davis [2007] NSWSC 835

Tatlers.com.au Pty Ltd v Davis [2007] NSWSC 835

Failure to serve the exhibits to the affidavit within the 21-day statutory period did not invalidate the application to set aside the statutory demand under s 459G. The plaintiff could rely on its own costs order as a set-off but could not rely on a set-off or cross-claim available only to a co-obligor (Ms Fletcher). The statutory demand was therefore to be varied in the amount of the assessed costs in favour of the plaintiff.

Jurisdiction
Australia
Judgment Date
03 August 2007
Procedural Posture
Application to Set Aside Statutory Demand / Judgment
Outcome
Statutory demand varied; set aside as to part, not wholly set aside.
Legal Topics
['statutory Demand' 'set Off' 'offsetting Claim' 'company Insolvency' 'affidavits Procedural Requirements']
['corporations Law' 'equity'] ['statutory Demand' 'set Off' 'offsetting Claim' 'company Insolvency' 'affidavits Procedural Requirements']

Case Brief

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Procedural Posture

Application to Set Aside Statutory Demand / Judgment

Legal Issues

  1. 1 ['Whether failure to serve exhibits to supporting affidavit within 21 days invalidated the application under s 459G of the Corporations Act 2001 (Cth)' 'Whether plaintiff could rely on the absence of an affidavit to accompany the statutory demand under s 459E(3) as a ground for setting aside the demand' 'Whether the plaintiff was entitled to set off amounts owed under costs orders against the debt claimed in the statutory demand' 'Whether the plaintiff could rely on a set-off available to a co-obligor (Ms Fletcher)']

Ratio Decidendi

Failure to serve the exhibits to the affidavit within the 21-day statutory period did not invalidate the application to set aside the statutory demand under s 459G. The plaintiff could rely on its own costs order as a set-off but could not rely on a set-off or cross-claim available only to a co-obligor (Ms Fletcher). The statutory demand was therefore to be varied in the amount of the assessed costs in favour of the plaintiff.

Court Disposition

Statutory demand varied; set aside as to part, not wholly set aside.

Orders

  • ['Order that the statutory demand dated 20 December 2006 served by the defendant on the plaintiff be varied by substituting the sum of $22,681.34 for the sum of $31,370 as the amount of the debt.' 'Declare that the demand is to have had effect, as so varied, as from when the demand was served on the plaintiff.' 'The...