Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Spinks & Co Pty Ltd v Tomkins Commercial and Industrial Builders Pty Ltd [2013] FCA 107 Citation: Spinks & Co Pty Ltd v Tomkins Commercial and Industrial Builders Pty Ltd [2013] FCA 107
Parties: SPINKS & CO PTY LTD ACN 136 998 055 v TOMKINS COMMERCIAL AND INDUSTRIAL BUILDERS PTY LTD ACN 061 732 778
File number: QUD 788 of 2012
Judge: LOGAN J
Date of judgment: 12 February 2013
Catchwords: CORPORATIONS – statutory demand – application to set aside a statutory demand – building and construction contract – prior adjudication given by building industry adjudicator registered as District Court judgment Held: no valid offsetting claim by the plaintiff –amount of the statutory demand should be varied – no other reason why statutory demand should be set aside COSTS – whether an order for costs should take into account the plaintiff's relative success to the variation of the statutory demand – plaintiff and defendant had both made concessions prior to the application – defendant enjoyed success on the principal area of dispute on application Held: costs awarded to the defendant on the standard basis
Legislation: Corporations Act 2001 (Cth) ss 459E, 459G, 459H, 459J Federal Court Rules 2011 (Cth) Building and Construction Industry Payments Act 2004 (Qld)
Cases cited: Andi-Co Australia Pty Ltd v Meyers [2004] FCA 1358 considered Beauty Health Group Limited v Sholl [2011] NSWSC 77 considered Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473 considered Food Channel Network Pty Ltd v Television Food Network GP (2010) 185 FCR 1 cited Reed Construction (Qld) Pty Ltd v Dellsun Pty Ltd [2010] 2 Qd R 481 followed Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601 considered Re Softex Industries Pty Ltd (2001) 187 ALR 448 considered Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1993) 47 FCR 451 cited Scope Data Systems v BDO Nelson Parkhill (2003) 199 ALR 56 considered Spacorp Australia Proprietary Limited v Myer Stores Limited [2001] VSCA 89 considered Tesoro MB Pty Ltd v Total Building Group Pty Ltd [2009] FCA 802 considered
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