In the matter of Nicolas Criniti Pty Ltd (in Liquidation) [2022] NSWSC 1149

In the matter of Nicolas Criniti Pty Ltd (in Liquidation) [2022] NSWSC 1149

The statutory debt under the SOP Act only arises upon the making of an adjudication determination; the preconditions (payment claim, schedule, application, appointment of adjudicator) do not themselves give rise to an enforceable debt under the Act. At the relevant date (22 November 2019), no adjudication determination existed, so the circumstances giving rise to the plaintiff's claimed statutory debt had not arisen and the proof of debt could not be admitted.

Jurisdiction
Australia
Judgment Date
29 August 2022
Procedural Posture
Appeal From Liquidator's Rejection of Proof of Debt / Dispositive Judgment
Outcome
Appeal dismissed
Legal Topics
['proof of Debt' 'statutory Entitlement Under Security of Payment Act' 'adjudication Determination' 'insolvency']
['corporations Law' 'building and Construction Law'] ['proof of Debt' 'statutory Entitlement Under Security of Payment Act' 'adjudication Determination' 'insolvency']

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Procedural Posture

Appeal From Liquidator's Rejection of Proof of Debt / Dispositive Judgment

Legal Issues

  1. 1 ["Whether circumstances giving rise to plaintiff's claimed statutory debt arose prior to the 'relevant date' under s 553(1) Corporations Act 2001 (Cth)" 'Whether a statutory debt exists under the SOP Act absent an adjudication determination at the relevant date' 'Effectiveness of service of adjudicator’s appointment acceptance via email']

Ratio Decidendi

The statutory debt under the SOP Act only arises upon the making of an adjudication determination; the preconditions (payment claim, schedule, application, appointment of adjudicator) do not themselves give rise to an enforceable debt under the Act. At the relevant date (22 November 2019), no adjudication determination existed, so the circumstances giving rise to the plaintiff's claimed statutory debt had not arisen and the proof of debt could not be admitted.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.']