Land & National Development Corporation Pty Limited v Tatebrook Pty Limited [1999] NSWSC 373

New South Wales Supreme Court CITATION : Land & National Development Corporation Pty Limited v Tatebrook Pty Limited [1999] NSWSC 373 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1293/99 HEARING DATE(S) : 22 April 1999 JUDGMENT DATE : 22 April 1999

PARTIES : Land & National Development Corporation Pty Limited (P) Tatebrook Pty Limited (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. J. Simpkins (P) Mr. D. Leeming (D) SOLICITORS : Rod J. Barnett & Associates (P) Mallesons Stephen Jaques (D) CATCHWORDS : ACTS CITED : Corporations Law DECISION :

14 THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 22 April 1999

1293 of 1999 LAND AND NATIONAL DEVELOPMENT CORPORATION PTY LTD -v- TATEBROOK PTY LTD

1 MASTER: By summons filed on 8 February 1999, the plaintiff Land and National Development Corporation Pty Ltd (referred to in these proceedings as "Land") seeks an order that the statutory demand dated 19 January 1999, served upon it by the defendant Tatebrook Pty Ltd (to which I shall refer to as "Tatebrook") be set aside, pursuant to the provisions of S459G(1) of the Corporation Law, or alternatively pursuant to the provisions of S459J of the Corporations Law. 2 That statutory demand seeks payment by the plaintiff to the defendant of the amount of $1,739,758.56, being the amount of the debt described in the schedule. 3 The schedule contains the following description of the amount of that debt: The moneys outstanding as at 17 September 1997 under a loan and shareholders agreement between the company, the creditor and others, dated 13 January 1995, being $2,339,758.56 less an amount of $600,000 of that debt, which has been assigned by the creditor to Idogear Pty Ltd ACM 008592434. 4 The loan and shareholders agreement entered into between the parties on 13 January 1995 provided for the loan by the defendant to the plaintiff to be repaid by 18 November 1997. However, on 17 September 1997, there was entered into between the parties a further deed described as "Tatebrook Deed of Release." Clause 3 of that deed provides: On and from the date of, but subject to completion of, the Lidoform Share Sale Agreement, Tatebrook releases Land from its obligations to pay to Tatebrook the amount in Item 2 of the schedule release. 5 Also on 17 September 1997, the parties and others entered into a deed described as "Deed of Acknowledgment", which contained provision in clause 13.3 concerning the Lidoform Share sale Agreement. That clause provides, "Notwithstanding any provision of the Lidoform share sale agreement to the contrary, completion of the Lidoform Share Sale Agreement is conditional on and subject to" - and there then follow six subparagraphs, of which those relevant to the proceedings before me are the following: (a) completion of the first stage by the first stage completion date, including the release of the land debt to Viebell.