CMP CONSTRUCTION LTD v ALUMINIUM TECHNOLOGY LTD [2013] NZHC 2481

CMP CONSTRUCTION LTD v ALUMINIUM TECHNOLOGY LTD [2013] NZHC 2481

The statutory demand was not set aside because the court found the respondent's payment claims were valid under the Construction Contracts Act 2002 and the applicant failed to serve payment schedules within the required time thereby making the claimed amounts payable under s22 and recoverable as debt under s23; s79...

Source-derived case information.

Citation
[2013] NZHC 2481
Parties
Applicant: CMP Construction Ltd; Respondent: Aluminium Technology Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 September 2013
Procedural Posture
Application to Set Aside Statutory Demand / Judgment (decision Delivered 23 September 2013)
Outcome
Application to set aside statutory demand dismissed in part; statutory demand not set aside in respect of $38,071.62
Legal Topics
Statutory Demand, Set Aside, Payment Claims, Payment Schedules, Set Off/counterclaim, Liquidation, Contractual Severance
Company Law Construction Law Contract Law Civil Procedure Statutory Demand Set Aside Payment Claims Payment Schedules +3 more

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Parties

CMP Construction Ltd

Applicant

Aluminium Technology Ltd

Respondent

Procedural Posture

Application to Set Aside Statutory Demand / Judgment (decision Delivered 23 September 2013)

Legal Issues

  1. 1 Whether there is a substantial dispute that the debt is owing or due under s290(4)(a) Companies Act 1993
  2. 2 Whether respondent's payment claims were invalid under the Construction Contracts Act 2002
  3. 3 Whether the applicant has a valid counterclaim/set-off that defeats the statutory demand (s290(4)(b))

Ratio Decidendi

The statutory demand was not set aside because the court found the respondent's payment claims were valid under the Construction Contracts Act 2002 and the applicant failed to serve payment schedules within the required time thereby making the claimed amounts payable under s22 and recoverable as debt under s23; s79 precluded reliance on set-off to defeat the statutory demand; an unlawful contracting-out clause was severed and did not invalidate the claims; the court ordered payment of $38,071.62 within ten working days or respondent may apply to liquidate the applicant.

Court Disposition

Application to set aside statutory demand dismissed in part; statutory demand not set aside in respect of $38,071.62

Orders

  • Applicant must pay $38,071.62 within ten working days of release of judgment or respondent may apply to put applicant into liquidation
  • Costs reserved; if counsel cannot agree, memoranda to be filed and served at seven-day intervals then referred to the judge