BHA Industries Pty Ltd v Gorokan Display Village Pty Ltd [1998] FCA 1217

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 3113 of 1998

BETWEEN: BHA INDUSTRIES PTY LIMITED

Applicant

AND: GOROKAN DISPLAY VILLAGE PTY LIMITED

Respondent

JUDGE: TAMBERLIN J

DATE OF ORDER: 25 SEPTEMBER 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The statutory demand be varied by substituting an amount of $57,192.33 for the amount of $136,268. 2. The respondent on the motion pay the applicant's cost of the motion. 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 NG 3113 of 1998

BETWEEN: BHA INDUSTRIES PTY LIMITED

Applicant

AND: GOROKAN DISPLAY VILLAGE PTY LIMITED

Respondent

JUDGE: TAMBERLIN J

DATE: 25 september 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT Before me is a Notice of Motion brought by Gorokan Display Village Pty Limited ("Gorokan") for an order pursuant to s 459(H) of the Corporations Law ("the Law") that the statutory demand served on BHA Industries Pty Limited ("BHA") on 27 May 1998 be varied by substituting the amount of $57,192.33 for the amount of $136,268.86 specified therein. The background to this matter is that consent orders were made by the Local Court at Parramatta on 31 July 1997. The relevant orders were that there be judgment for Gorokan in the sum of $35,034 together with interest and costs. The consent orders also provided that: "5. The judgment together with interest and costs be stayed until the conclusion of District (sic) proceedings No 113 of 1997, provided that the defendant, BHA Industries Pty Limited t/as Forrester Homes, shall promptly abide by all directions of the District Court as to the prosecution of those proceedings." The statutory demand, the subject of the amended application, claimed a total amount of $136,268.86 comprised of judgments of the Parramatta Local Court totalling $57,192.33 and a District Court judgment on a cross-claim in favour of Gorokan in the sum of $79,076.53. An appeal has been lodged by BHA against the District Court judgment and it is common ground that the District Court judgment has been stayed pending determination of the appeal in the District Court. Gorokan concedes that it cannot presently press its claim for the amount of $79,076.53 and therefore seeks to reduce its claim to the amount of the District Court judgments totalling $57,192.32.