Burdon Pty Ltd v Gillford Pty Ltd [1995] FCA 1096

CATCHWORDS CORPORATIONS - Statutory Demand - whether a genuine dispute between the parties as to the existence or amount of the debt the subject of the demand - inappropriateness in all the circumstances of deciding the ultimate issue between the parties. PRACTICE & PROCEDURE - Evidence - whether evidence of expert witness admissible where basis of expert opinion not set out. Corporation Law: s459H(1). Chase Manhattan Bank Australia Limited v OSCTY Pty Limited (1995) 17 ACSR 128; discussed. Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; discussed. Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313; followed. BURDON PTY LTD v GILLFORD PTY LTD No NG 571 of 1995 Davies, Hill & Whitlam JJ Sydney 21 December 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No NG 571 of 1995 ) GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: BURDON PTY LTD Appellant AND: GILLFORD PTY LTD Respondent

CORAM: DAVIES, HILL & WHITLAM JJ PLACE: SYDNEY DATED: 21 DECEMBER 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Appeal allowed. 2. Orders made by the trial judge on 26 July 1995 be set aside and in lieu thereof it be ordered that: (a) the statutory demand served by Gillford Pty Ltd on Burdon Pty Ltd be set aside; and (b) that Gillford Pty Ltd pay the costs of the application. 3. Gillford Pty Ltd pay the costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No G 571 of 1995 ) GENERAL DIVISION ) On appeal from the a single judge of the Federal Court of Australia BETWEEN: BURDON PTY LTD Appellant AND: GILLFORD PTY LTD Respondent Coram:Davies, Hill & Whitlam JJ Date: 21 December 1995 Place: Sydney REASONS FOR JUDGMENT Davies J:- This is an appeal from an order made by a judge of the Court, in which his Honour dismissed an application that a statutory demand served under s.459E of the Corporations Law be set aside. The issue before his Honour was whether there was a genuine dispute as to the claim made: see s.459H(1) Corporations Law. The parties had resolved disputes which had arisen between them and had agreed, inter alia, that certain trading losses should be determined by an independent expert. Agreed procedures determined by the parties provided, inter alia:-