Naudunda Nominees Pty Ltd v Far North Queensland Electricity Corp [1998] FCA 1284

FEDERAL COURT OF AUSTRALIA

CORPORATIONS - statutory demand - default judgment for non-payment of accounts rendered for supply of electricity - debtor denies any involvement in management or ownership of premises to which electricity supplied - whether debtor party to agreement to supply electricity - whether genuine dispute about existence or amount of debt

Corporations Law - ss 459G, 459H, 459J

Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601 - considered Delnorth v State Bank of New South Wales (1995) 17 ACSR 379 - considered Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 147 ALR 444 - cited NAUDUNDA NOMINEES PTY LTD v FAR NORTH QUEENSLAND ELECTRICITY CORPORATION VG 3186 of 1998 BEFORE: RYAN JR PLACE: MELBOURNE DATE: 7 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 3186 of 1998

BETWEEN: NAUDUNDA NOMINEES PTY LTD

Applicant

AND: FAR NORTH QUEENSLAND ELECTRICITY CORPORATION

Respondent

JUDicial registrar: RYAN

DATE OF ORDER: 7 OCTOBER 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application to set aside the creditor's statutory demand for payment of debt be dismissed. 2. The applicant pay the respondent's costs of and incidental to the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 3186 of 1998

BETWEEN: NAUDUNDA NOMINEES PTY LTD

Applicant

AND: FAR NORTH QUEENSLAND ELECTRICITY CORPORATION

Respondent

JUDICIAL REGISTRAR: RYAN

DATE: 7 october 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT

THE ISSUE This is a matter in which the applicant seeks to set aside a creditor's statutory demand asserting that a default judgment which forms the primary basis of the demand should itself be set aside. The applicant company contends that there is a genuine dispute as to the identity of the debtor against whom the default judgment issued and that as a company and legal entity it never had any interest in the management or ownership of premises to which electricity was supplied and for which supply the respondent obtained a default judgment in debt for non-payment of accounts rendered. The respondent resists the setting aside asserting that there is no genuine, substantial or bona fide dispute as to the debt and that the debt is properly owed by the applicant company to the respondent. THE DEMAND On 8 April 1998 the respondent issued a statutory demand for debts totalling $20,377.76. The Schedule of the Demand describes two debts: 1. $16,966.31 pursuant to Judgment ordered on 17 December 1997 for creditor's claim in Plaint No. 2431 of 1997 out of the Cairns Magistrates' Registry of the Magistrates' Court of Cairns for the supply of electricity to the premises described as The Point Resort, Point Tam O'Shanter, Point Road, Mission Beach in the State of Queensland 2. $3,411.45 being balance outstanding for electricity to 111-113 Williams Esplanade, Palm Cove in the State of Queensland. On 28 May 1998, by application filed in the Victorian District Registry, the applicant sought to set aside the statutory demand. By letter also dated 28 May 1998, the solicitors acting for the applicant (and acknowledging the applicant as their client) forwarded a bank cheque to the Melbourne agent of the Queensland solicitors acting for the respondent. This cheque was for payment of the smaller debt of $3,411.45. Given the payment of the smaller debt, the hearing of the application to set aside the statutory demand turned on the larger debt and on the applicant's denial of any interest or involvement in the ownership or operation of The Point Resort.