Site Foreman Pty Ltd, The v Brand [2011] NSWSC 821

Site Foreman Pty Ltd, The v Brand [2011] NSWSC 821

The demand was defective because it stated two different amounts for the debt, leaving Site Foreman uncertain whether it had to pay the higher amount in the body of the demand or the lower amount in the schedule and affidavit to avoid a presumption of insolvency. That uncertainty caused substantial injustice under s 459J(1)(a). In any event, Site Foreman established arguable, good faith offsetting claims concerning the Roseville and North Curl Curl projects which exceeded the amount demanded, and neither the asserted employment relationship nor s 3 of the Employees Liability Act 1991 (NSW) was sufficiently clear to deprive those claims of their character as genuine offsetting claims. The...

Jurisdiction
Australia
Judgment Date
04 August 2011
Procedural Posture
Application to Set Aside a Statutory Demand / Principal Judgment After Hearing
Outcome
Statutory demand set aside.
Legal Topics
['statutory Demand' 'defect in Demand' 'substantial Injustice' 'offsetting Claim' 'implied Term of Reasonable Care and Skill' 'employees Liability Act']
['corporations Law' 'equity' 'employment Law' 'contract Law'] ['statutory Demand' 'defect in Demand' 'substantial Injustice' 'offsetting Claim' 'implied Term of Reasonable Care and Skill' 'employees Liability Act']

Case Brief

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Procedural Posture

Application to Set Aside a Statutory Demand / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the statutory demand should be set aside under s 459J(1)(a) of the Corporations Act 2001 (Cth) because it stated two different amounts for the debt and thereby caused substantial injustice.' 'Whether there was some other reason to set aside the statutory demand under s 459J(1)(b) because the accompanying affidavit verified only the lesser amount stated in the schedule.' 'Whether Site Foreman had offsetting claims under s 459H of the Corporations Act 2001 (Cth) exceeding the amount of the demand.' 'Whether s 3 of the Employees Liability Act 1991 (NSW) prevented Site Foreman from relying on its asserted offsetting claims against Mr Brand.']

Ratio Decidendi

The demand was defective because it stated two different amounts for the debt, leaving Site Foreman uncertain whether it had to pay the higher amount in the body of the demand or the lower amount in the schedule and affidavit to avoid a presumption of insolvency. That uncertainty caused substantial injustice under s 459J(1)(a). In any event, Site Foreman established arguable, good faith offsetting claims concerning the Roseville and North Curl Curl projects which exceeded the amount demanded, and neither the asserted employment relationship nor s 3 of the Employees Liability Act 1991 (NSW) was sufficiently clear to deprive those claims of their character as genuine offsetting claims. The...

Court Disposition

Statutory demand set aside.

Orders

  • ['The statutory demand was set aside.']