SCI DEVELOPMENT & CONSTRUCTION LTD V NZ BUILT LTD HC AK CIV 2005-404-3656

SCI DEVELOPMENT & CONSTRUCTION LTD V NZ BUILT LTD HC AK CIV 2005-404-3656

The demand was not set aside because the defendant's payment claims became debts due under the Construction Contracts Act due to the plaintiff's failure to provide payment schedules, the plaintiff failed to demonstrate a substantial dispute or a tenable counterclaim unaffected by s.79, and the plaintiff did not...

Source-derived case information.

Citation
openlaw-7845e4c0_a6fa_4452_841e_aa4a0b0ca925.pdf
Parties
Plaintiff: SCI Development & Construction Limited; Defendant: NZ Built Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 December 2005
Procedural Posture
Application to Set Aside Statutory Demand Under S.290 Companies Act 1993 / Judgment (hearing 5 Dec 2005; Judgment 23 Dec 2005)
Outcome
Application dismissed
Legal Topics
Statutory Demand, Set Aside Under S.290, Construction Contracts Act 2002 Payment Claims, S.79 Effect on Set Off, Solvency Presumption, Payment Schedule Requirements, Adjudication and Arbitration
Company Law Construction Law Civil Procedure Contract Law Statutory Demand Set Aside Under S.290 Construction Contracts Act 2002 Payment Claims S.79 Effect on Set Off +3 more

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Parties

SCI Development & Construction Limited

Plaintiff

NZ Built Limited

Defendant

Procedural Posture

Application to Set Aside Statutory Demand Under S.290 Companies Act 1993 / Judgment (hearing 5 Dec 2005; Judgment 23 Dec 2005)

Legal Issues

  1. 1 Whether there is a substantial dispute as to the debt claimed
  2. 2 Whether the plaintiff has a counterclaim/set-off sufficient to reduce the demand below the prescribed amount
  3. 3 Whether other grounds under s.290(4)(c) require setting aside the demand (oppression, authority to issue demand, ADR)

Ratio Decidendi

The demand was not set aside because the defendant's payment claims became debts due under the Construction Contracts Act due to the plaintiff's failure to provide payment schedules, the plaintiff failed to demonstrate a substantial dispute or a tenable counterclaim unaffected by s.79, and the plaintiff did not rebut the presumption of insolvency with credible evidence; therefore the application to set aside is dismissed.

Court Disposition

Application dismissed

Orders

  • Application to set aside statutory demand dismissed
  • Statutory demand issued by NZ Built Limited not set aside