In the matter of XSRE Pty Ltd - XSRE Pty Ltd v Lightning Electrical Group Pty Ltd [2011] NSWSC 1147

In the matter of XSRE Pty Ltd - XSRE Pty Ltd v Lightning Electrical Group Pty Ltd [2011] NSWSC 1147

The application was dismissed because XSRE Pty Ltd did not establish a genuine offsetting claim. The alleged claim depended on assertions about a mid-July 2010 commencement and early September 2010 opening that were contradicted by contemporaneous documents showing that plans were not finalised until late August and continued to be amended. The evidence as to causation of delay and quantum of alleged loss was largely assertion and did not provide sufficient material to calculate an offsetting total under s 459H(2) of the Corporations Act 2001 (Cth).

Jurisdiction
Australia
Judgment Date
23 September 2011
Procedural Posture
Application Under Ss 459 G and 459 H(1)(b) of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Principal Judgment
Outcome
Application to set aside statutory demand dismissed with costs.
Legal Topics
['statutory Demand' 'offsetting Claim' 'judgment Debt' 'security of Payment Adjudication Certificate' 'breach of Contract' 'misleading or Deceptive Conduct' 'quantification of Unliquidated Damages']
['corporations' 'insolvency' 'construction' 'contract'] ['statutory Demand' 'offsetting Claim' 'judgment Debt' 'security of Payment Adjudication Certificate' 'breach of Contract' 'misleading or Deceptive Conduct' 'quantification of Unliquidated Damages']

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 Under Ss 459 G and 459 H(1)(b) of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Principal Judgment

Legal Issues

  1. 1 ['Whether XSRE Pty Ltd had a genuine offsetting claim for the purposes of s 459H(1)(b) of the Corporations Act 2001 (Cth).' 'Whether the alleged offsetting claim exceeded the judgment debt claimed in the statutory demand.' 'Whether XSRE Pty Ltd provided sufficient evidence of the basis and quantum of the alleged offsetting claim to permit the calculation required by s 459H(2) of the Corporations Act 2001 (Cth).']

Ratio Decidendi

The application was dismissed because XSRE Pty Ltd did not establish a genuine offsetting claim. The alleged claim depended on assertions about a mid-July 2010 commencement and early September 2010 opening that were contradicted by contemporaneous documents showing that plans were not finalised until late August and continued to be amended. The evidence as to causation of delay and quantum of alleged loss was largely assertion and did not provide sufficient material to calculate an offsetting total under s 459H(2) of the Corporations Act 2001 (Cth).

Court Disposition

Application to set aside statutory demand dismissed with costs.

Orders

  • ['Dismiss the application to set aside the statutory demand, with costs.']