Viktorija Pty Limited v Kevin Gerard Lindsay & Anor [2005] NSWSC 1274

Viktorija Pty Limited v Kevin Gerard Lindsay & Anor [2005] NSWSC 1274

Viktorija did not establish a genuine dispute because the only available evidence of the alleged terminating event was an unparticularised assertion that it had ascertained the mortgagee intended to foreclose, unsupported by particulars of the source, time or manner of the intended foreclosure and not amplified after the Defendants' denial. The late solicitor's affidavit could not be relied upon under the Graywinter principle.

Jurisdiction
Australia
Judgment Date
02 December 2005
Procedural Posture
Application to Set Aside Statutory Demand Under S.459 G of the Corporations Act 2001 (cth) / Ex Tempore Judgment
Outcome
Application to set aside statutory demand refused.
Legal Topics
['statutory Demand' 'genuine Dispute' 'supporting Affidavit' 'implied Term' 'condition Subsequent']
['corporations' 'insolvency' 'contract'] ['statutory Demand' 'genuine Dispute' 'supporting Affidavit' 'implied Term' 'condition Subsequent']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

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

Legal Issues

  1. 1 ['Whether Viktorija established a genuine dispute as to the existence of the debt the subject of the statutory demand.' 'Whether grounds raised in an affidavit filed outside the time limited by the Act could be relied upon.' 'Whether the unparticularised assertion that the mortgagee intended to foreclose was sufficient to support a genuine dispute.']

Ratio Decidendi

Viktorija did not establish a genuine dispute because the only available evidence of the alleged terminating event was an unparticularised assertion that it had ascertained the mortgagee intended to foreclose, unsupported by particulars of the source, time or manner of the intended foreclosure and not amplified after the Defendants' denial. The late solicitor's affidavit could not be relied upon under the Graywinter principle.

Court Disposition

Application to set aside statutory demand refused.

Orders

  • ['Application to set aside statutory demand refused.']