In the matter of Vista Del Mare Pty Ltd [2020] NSWSC 938

In the matter of Vista Del Mare Pty Ltd [2020] NSWSC 938

VDM did not establish an offsetting claim based on IUR's demand because IUR's asserted claim was expressed only in a single sentence, without identifying its basis or quantification, and had not been pursued, so it did not raise a serious question to be tried and could not found a derivative indemnity claim against CBS. However, VDM established a serious question to be tried as to an offsetting claim for defective works identified in Mr Zakos' report, quantified at $227,100 exclusive of GST. The statutory demand was therefore varied rather than set aside, leaving a substantiated amount of $512,410.03.

Jurisdiction
Australia
Judgment Date
28 May 2020
Procedural Posture
Application to Set Aside a Creditor's Statutory Demand Under the Corporations Act 2001 (cth) / Principal Judgment on Originating Process Dated 13 January 2020
Outcome
Creditor's statutory demand varied from $762,220.03 to $512,410.03; application to set aside the demand failed to that extent; Plaintiff ordered to pay Defendant's costs.
Legal Topics
["creditor's Statutory Demand" 'offsetting Claim' 'security of Payment Adjudication' 'defective Building Works' 'rectification Costs' 'costs']
['corporations' 'building and Construction' 'contract'] ["creditor's Statutory Demand" 'offsetting Claim' 'security of Payment Adjudication' 'defective Building Works' 'rectification Costs' 'costs']

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 a Creditor's Statutory Demand Under the Corporations Act 2001 (cth) / Principal Judgment on Originating Process Dated 13 January 2020

Legal Issues

  1. 1 ["Whether the creditor's statutory demand should be set aside or varied by reason of an offsetting claim under s 459H(1)(b) of the Corporations Act 2001 (Cth)." "Whether VDM had an offsetting claim against CBS derived from IUR's demand against VDM under the Development Agreement." 'Whether VDM had an offsetting claim against CBS for costs of rectifying alleged defective building works identified in expert evidence.']

Ratio Decidendi

VDM did not establish an offsetting claim based on IUR's demand because IUR's asserted claim was expressed only in a single sentence, without identifying its basis or quantification, and had not been pursued, so it did not raise a serious question to be tried and could not found a derivative indemnity claim against CBS. However, VDM established a serious question to be tried as to an offsetting claim for defective works identified in Mr Zakos' report, quantified at $227,100 exclusive of GST. The statutory demand was therefore varied rather than set aside, leaving a substantiated amount of $512,410.03.

Court Disposition

Creditor's statutory demand varied from $762,220.03 to $512,410.03; application to set aside the demand failed to that extent; Plaintiff ordered to pay Defendant's costs.

Orders

  • ["Pursuant to s 459H of the Corporations Act 2001 (Cth), the creditor's statutory demand, dated 23 December 2019 be varied from $762,220.03 to $512,410.03." 'Declare the demand to have had effect, as varied, as from the date on which the demand was served on the Plaintiff.' "The Plaintiff pay the Defendant's costs...