Tuheta Pty Ltd v Ehrenfeld [2010] NSWSC 799

Tuheta Pty Ltd v Ehrenfeld [2010] NSWSC 799

Because the parties accepted that the $240,000 component of the statutory demand was genuinely disputed but the $183,000 balance was not, the demand was varied to $183,000 under s 459H(4). The defendant's non-acceptance of the 31 May 2010 offer was not unreasonable because the offer was uncertain or linked payment to completion of a sale and did not give the defendant the benefit of a presumption of insolvency. The 13 July 2010 offer was not a valid rules offer because it was not exclusive of costs, but it was an effective Calderbank offer; non-acceptance was unreasonable because it offered payment of $183,000 and costs, would have ended these proceedings, and left the $240,000 dispute to...

Jurisdiction
Australia
Judgment Date
16 July 2010
Procedural Posture
Application Under S 459 G of the Corporations Act 2001 (cth) Concerning a Statutory Demand / Hearing; Ex Tempore Principal Judgment on Variation of Statutory Demand, Costs, and an Oral Application to Extend Time for Compliance
Outcome
Statutory demand varied to $183,000; defendant ordered to pay plaintiff's indemnity costs from after 4pm on 14 July 2010; otherwise no order as to costs; application to extend time for compliance refused.
Legal Topics
['statutory Demand' 'genuine Dispute' 'variation of Statutory Demand' 'calderbank Offer' 'offer of Compromise' 'indemnity Costs' 'extension of Time for Compliance']
['corporations Law' 'civil Procedure' 'costs'] ['statutory Demand' 'genuine Dispute' 'variation of Statutory Demand' 'calderbank Offer' 'offer of Compromise' 'indemnity Costs' 'extension of Time for Compliance']

Case Brief

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Procedural Posture

Application Under S 459 G of the Corporations Act 2001 (cth) Concerning a Statutory Demand / Hearing; Ex Tempore Principal Judgment on Variation of Statutory Demand, Costs, and an Oral Application to Extend Time for Compliance

Legal Issues

  1. 1 ['Whether the statutory demand should be varied under s 459H(4) by reducing it to $183,000 because there was a genuine dispute about the $240,000 component.' "Whether non-acceptance of the plaintiff's 31 May 2010 settlement offer was unreasonable for costs purposes." 'Whether the 13 July 2010 offer was a valid offer of compromise under r 20.26 of the Uniform Civil Procedure Rules 2005 or, alternatively, an effective Calderbank offer.' 'Whether non-acceptance of the 13 July 2010 offer was unreasonable and warranted indemnity costs.' 'Whether the time for compliance with the varied statutory demand should be extended under s 459F(2)(a)(i).']

Ratio Decidendi

Because the parties accepted that the $240,000 component of the statutory demand was genuinely disputed but the $183,000 balance was not, the demand was varied to $183,000 under s 459H(4). The defendant's non-acceptance of the 31 May 2010 offer was not unreasonable because the offer was uncertain or linked payment to completion of a sale and did not give the defendant the benefit of a presumption of insolvency. The 13 July 2010 offer was not a valid rules offer because it was not exclusive of costs, but it was an effective Calderbank offer; non-acceptance was unreasonable because it offered payment of $183,000 and costs, would have ended these proceedings, and left the $240,000 dispute to...

Court Disposition

Statutory demand varied to $183,000; defendant ordered to pay plaintiff's indemnity costs from after 4pm on 14 July 2010; otherwise no order as to costs; application to extend time for compliance refused.

Orders

  • ['Order that the statutory demand dated 16 March 2010 served on the plaintiff by the defendant be varied by reducing the amount thereof to $183,000 and that that demand has effect as so varied as from when the demand was served on the plaintiff.' "Order that the defendant pay the plaintiff's costs of the proceedings...