ARROW v SPORTSWORLD GROUP [1999] NSWSC 1207

New South Wales Supreme Court CITATION : ARROW v SPORTSWORLD GROUP [1999] NSWSC 1207 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3969 OF 1999 HEARING DATE(S) : 6 and 8 December 1999 JUDGMENT DATE : 13 December 1999

PARTIES : ARROW ASSET MANAGEMENT PTY LIMITED v SPORTSWORLD GROUP PLC JUDGMENT OF : Master Macready at 1

COUNSEL : Mr M. Christie for the plaintiff Mr M. Orlov for the defendant SOLICITORS : Murray Stewart & Fogarty for the plaintiff Messrs Gray & Perkins for the defendant CATCHWORDS : Corporations Law. Application to set aside demand. Whether a claim based upon a total failure of consideration is a debt within the meaning of s 459E. Held that it is a debt for the purposes of the section. Defects in the affidavit verifying statutory demand. Held that compliance with Queensland rules is sufficient. Summons dismissed. CASES CITED : B&M Quality Constructions v Buyrite Steel Supplies (1995) 13 ACLC 88 at 90-91; Jesseron Holdings Pty Limited v Middle East Trading Consultants Pty Limited (1994) 13 ACSR 455 at 460; Commissioner for Corporate Affairs v Bracht (1989) VR 821 at 830; Aspermont Ltd v Robash Pty Ltd (1998) 16 ACLC; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 382; Baltic Shipping Company v Dillon (1993) 176 CLR 344 at 375; Molit Pty Limited v Lam Soon Aust Pty Limited (1996) 21 ACSR 157; Shephard v ANZ Banking Group (1997) 41 NSWLR 431; Zanjill Pty Limited v Sydney Autolack Centre Pty Ltd (5.12.99). DECISION : Para 31

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Monday, 13 December 1999

3969 of 1999 ARROW ASSET MANAGEMENT PTY LIMITED v SPORTSWORLD GROUP PLC JUDGMENT 1 MASTER: This is an application to set aside a statutory demand served by the defendant on the plaintiff. The demand was dated 19 August 1999 and sought repayment of $400,000. The description of the debt in the demand was "Deposit paid under agreement made between the company and the creditor dated 21 March 1997, repayable by reason of the company's repudiation of the agreement." 2 The agreement in question was one for the provision by the plaintiff as operator and Horwath Corporate Pty Limited as owner of rooms and related services during the Olympic period to the defendant. The provision of rooms and related services was in a hotel which was specified in the agreement as being the Astor Apartment Management Hotel in Sydney. 3 Although when the proceedings were first commenced there was on the affidavit evidence an issue as to whether or not the $400,000 referred to in the demand had been paid by the defendant to the plaintiff the plaintiff now concedes that the amount was paid to it. The grounds upon which it is sought to set aside the notice are fourfold. They are:-