Tesoro MB Pty Ltd v Total Building Group Pty Ltd [2009] FCA 802

FEDERAL COURT OF AUSTRALIA

Tesoro MB Pty Ltd v Total Building Group Pty Ltd [2009] FCA 802 CORPORATIONS - Statutory Demand - Application to set aside statutory demand - Demand withdrawn before hearing - Held no need to set aside a statutory demand which is no longer made COSTS - Whether statutory demand should or should not have been issued - Adjudication before lower court registered as judgment of that court - Respondent advised by Applicant of appropriateness of withdrawing statutory demand - Respondent disputed underlying contract and purported counterclaim - Held reasonably apparent that demand would be set aside - Whether costs should be awarded on an indemnity basis - Held Respondent's conduct imprudent - Held Respondent imprudently put Applicant to the expense of making application to the Court - Held costs awarded on an indemnity basis Corporations Act 2001 (Cth) ss 459G, 459K Building and Construction Industry Payments Act 2004 (Qld) Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd; Deputy Commissioner of Taxation v MA Howard Racing Pty Ltd; Deputy Commission of Taxation v Neutral Bay Pty Ltd (2008) 82 ALJR 1411 cited Colgate-Palmolive Company v Cussons Limited (1993) 46 FCR 225 considered Demir Proprietary Limited v Graf Plumbing Proprietary Limited (2004) NSWSC 553 followed Peekhurst Proprietary Limited v Wallace (2007) 25 ACLC 1051 not followed Re Chameleon Mining NL; Chameleon Mining ML v Atanaskovic Hartnell [2009] NSWSC 602 followed Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Quin (1997) 186 CLR 622 cited Soudan Lane Proprietary Limited v Glen Bradshaw (2007) NSWSC 772 followed TESORO MB PTY LTD ACN 056 707 647 v TOTAL BUILDING GROUP PTY LTD ACN 089 156 927

QUD136 of 2009

LOGAN J

24 JULY 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA