Hebbel Constructions Pty Ltd v Bitar Pty Ltd [2022] NSWSC 1594

Supreme Court New South Wales

Medium Neutral Citation: Hebbel Constructions Pty Ltd v Bitar Pty Ltd [2022] NSWSC 1594 Hearing dates: 7 November 2022 Decision date: 07 November 2022 Jurisdiction: Equity - Corporations List Before: Hammerschlag CJ in Eq Decision: Statutory demand set aside Catchwords: CORPORATIONS – Corporations Act 2001 (Cth) – Part 5.4A, ss 459G(1), 459H(1), 459J(1) and (2) – statutory demand claims debts, being judgments of the Local Court and District Court based on cost assessment certificates – whether there is some "other reason" under s 459J(1)(b) why the demand should be set aside – where at the time the Local Court judgment was obtained, the operation of the relevant certificate was suspended under the provisions of the Legal Profession Act 2004 (NSW), a fact which was not disclosed to the Court – at the time of this application, both the judgment of the Local Court and the judgment of the District Court were stayed, in the case of the District Court on payment by the plaintiff of a significant part of the claim into Court – where the parties are in a long running dispute concerning the dissolution of a partnership between them, the accounting process has not yet run its course, and the claims of the defendant in the statutory demand are part of the accounting between them – where the plaintiff has offsetting claims and there are more than enough partnership assets, in the hands of the receiver of the partnership assets, to satisfy the balance of any legitimate claims the defendant may have in the accounting – HELD – reliance on the demand by the plaintiff is unconscionable, an abuse of process or will wreak a substantial injustice – demand should be set aside for some "other reason" Legislation Cited: Corporations Act 2001 (Cth) Legal Profession Act 2004 (NSW) Cases Cited: Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3 CP York Holdings Pty Ltd v The Food Improvers Pty Ltd [2009] NSWSC 409 Hall Brothers Pty Ltd v Commissioner of Taxation (1996) 62 FCR 302 Hebbel Constructions Pty Ltd v Bitar Pty Ltd [2017] NSWSC 917 KW & KM Quinn Investments Pty Ltd and Deputy Commissioner of Taxation [2004] QCA 91 Category: Principal judgment Parties: Hebbel Constructions Pty Limited - Plaintiff Bitar Pty Limited - Defendant Representation: Counsel: D. Klineberg - Plaintiff M. McGirr - Defendant