Collins v Westpac [2000] NSWSC 260

New South Wales Supreme Court

CITATION : Collins v Westpac [2000] NSWSC 260 FILE NUMBER(S) : SC 5091/99 HEARING DATE(S) : 31/03/2000 JUDGMENT DATE : 31 March 2000

PARTIES : Brett Collins Investments Pty Limited v Westpac Banking Corporation JUDGMENT OF : Master Macready at 1

COUNSEL : Mr R. Harper (P) Mr L. Aitken (D) SOLICITORS : Michael Blaxell (P) Corrs Chambers Westgarth (D) CATCHWORDS : Corporations Law. Application to set aside statutory demand due to a defect in the deman and affidavit. Reference in demand to a debt due under an agreement rather than a judgment obtained in respect of the debt. Held demand was a purported demand and no substantial injustice would result if it was not set aside. Summons dismissed. Blair v Curran (1939) 62 CLR 464 at 532; Topfelt Pty Limited v State Bank of NSW (1933) 47 FCR 226; CASES CITED : Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) FCR 452; B&M Construction v Buyrite Steel Supplies (1994) 15 ACSR 433; Equuscoup v Perpetual Trustee (1997) 80 FLR 259 at 301. DECISION : Para 22

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

MASTER MACREADY

FRIDAY 31 MARCH 2000

5091/99 - BRETT COLLINS INVESTMENTS PTY LIMITED v WESTPAC BANKING CORPORATION

JUDGMENT

1 MASTER: This is an application to set aside a statutory demand dated 4 November 1999 served by the defendant on the plaintiff claiming a payment of the sum of $79,070.13. 2 The description of the debt in the demand is in the following form: " Description of the Debt(s) Amount of the Debt(s)

The balance outstanding as $79,070.13 as at 2 November 1999, of the principal amount advanced to the Company by the Creditor and payable by the Company to the Creditor, interest and charges incurred as per the Investment Property Loan Agreement, contained in the terms and conditions letter dated 14 October 1996." 3 That description is inaccurate as the defendant has sued in the Common Law Division of this Court pursuant to the agreement alleged in the demand and recovered a judgment against the plaintiff. The judgment was for possession of a property and for the plaintiff in these proceedings to pay the sum of $198,950.22 plus $1,804 for costs. The plaintiff did not defend the common law proceedings. 4 Since that judgment was obtained on 14 May 1999 the defendant has realised some securities and the sum now alleged to be due under the judgment is the amount of $79,070.13 claimed in the demand. The plaintiff in these proceedings has received particulars of how the figure is calculated and does not dispute the amount. There is thus no suggestion of a genuine dispute as to the sum of $79,070.13 being due under the judgment as at 2 November 1999. 5 The plaintiff suggests that the demand be set aside because the correct description of the debt is one due under a judgment and not the agreement which is referred to in the demand. It points to the undisputed proposition that the debt due under the agreement has "passed into the judgment so that it is merged and no longer has an independent existence" see Blair v Curran (1939) 62 CLR 464 at 532. 6 It is submitted that the demand should be set aside on the grounds: