Alstom Power Limited v Harnischfeger of Australia Pty Limited [2001] NSWSC 1185

New South Wales Supreme Court

CITATION : Alstom Power Limited v Harnischfeger of Australia Pty Limited [2001] NSWSC 1185 FILE NUMBER(S) : SC 3085/01 HEARING DATE(S) : 28 August 2001 JUDGMENT DATE : 28 August 2001

PARTIES : Alstom Power Limited (Plaintiff) Harnischfeger of Australia Pty Limited (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : M. Simpson (Plaintiff) R. Perry (Defendant) SOLICITORS : Sally Nash & Co, Solicitors (Plaintiff) Middletons Moore & Bevins (Defendant) LEGISLATION CITED : Corporations Act Eng Mee Young v Letchumanan [1980] AC 331 CASES CITED : Eyota Pty Limited v Hanave Pty Limited (1994) ACSR 785 South Australia v Wall 24 SASR 189 DECISION : See paragraph 20

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION Master McLaughlin Tuesday, 28 August 2001 3085/01 ALSTOM POWER LIMITED -V- HARNISCHFEGER OF AUSTRALIA PTY LIMITED

1 JUDGMENT 2 MASTER: There is presently before the Court an originating process filed by the plaintiff, Alstom Power Limited, on 14 June 2001. 3 By that originating process the plaintiff claims an order setting aside the statutory demand served upon the plaintiff on or about 25 May 2001 by the defendant, Harnischfeger of Australia Pty Limited. 4 The originating process specifies under the heading "Grounds of Opposition" the following: 1. Solvency. 2. Genuine dispute. 3. Not properly served. 5 As I understand it the only ground upon which the plaintiff now relies is that there is a genuine dispute as to the indebtedness of the plaintiff to the defendant in respect to the amount claimed in the statutory demand. The plaintiff does not raise in support of this originating process either solvency or an assertion that the statutory demand was not properly served. 6 In support of the originating process the plaintiff relied upon a number of affidavits. None of those affidavits annexed a copy of the statutory demand. Had the evidence remained in the condition in which it was at the conclusion of the reading of the affidavits on behalf of the plaintiff, it was inevitable that the originating process would have been dismissed. In that regard I refer to the unreported judgment of Justice Austin in Expressway Stairs Pty Limited v CTK Engineering Pty Limited, 12 December 2000, in particular paragraph 3 of that judgment. 7 However as a result of intervention by me the statutory demand, together with the affidavit in support thereof, was admitted into evidence as exhibit A. By that statutory demand the defendant claims payment to it by the plaintiff of the amount of $72,552.17, being the total of the amounts of the debts described in the schedule. That description is somewhat skimpy. It is as follows: 8 90 days $84,817.76 60 days $ 742.50 Total $85,560.26 Less Credit $ 4,287.18 Less Discount $ 8,720.91 Total Off $13,008.09