Bullant v Mr Carpet [2000] NSWSC 165

New South Wales Supreme Court

CITATION : Bullant v Mr Carpet [2000] NSWSC 165 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5229/99 HEARING DATE(S) : 29/02/2000 and 01/03/2000 JUDGMENT DATE : 16 March 2000

PARTIES : Bullant Technology Pty Ltd v Mr Carpet Pty Ltd JUDGMENT OF : Master Macready at 1

COUNSEL : Mr M. Ashhurst for plaintiff Mr R.S. Angyel for defendant SOLICITORS : Stephen Blanks & Associates for plaintiff Holman Webb for defendant CATCHWORDS : Corporations Law. Application to set aside statutory demand. Consideration of whether a claim to set aside a lease for breach of the Trade Practices Act leads to a genuine dispute about a claim for damages for repudiation of the lease. Demand set aside. Eyota Pty Limited v Hanave Pty Limited (1994)12ACLC 669; Bank of New Zealand v Spedley Securities Limited (In Liquidation) & Anor (1992) 27 NSWLR 91 at 100; CASES CITED : Barclays v Mike Gaffkin Marine Pty Ltd 21 ACSR 235 at 236; Walden Pty Ltd v Greenco Pty Ltd 13 ACLR 1039; Hoare Bros v DCT (1995) 13 ACLC 358; Musca & Ors v Astle Corporation Pty Ltd (1998) 80 ALR 251. DECISION : Paragraph 23

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

MASTER MACREADY

Thursday 16 March 2000

5229/99 BULLANT TECHNOLOGY PTY LTD v MR CARPET PTY LTD 1 MASTER: This is an application under s 459G of the Corporations Law to set aside a statutory demand served by the defendant on the plaintiff. The statutory demand was served on 9 December 1999 and claims amounts by way of rent and other fees under a lease from the defendant, as lessor, to the plaintiff, as lessee in respect of premises at Cassins Avenue, North Sydney. The amount claimed in the demand is $81,173.42. The lease is dated 23 May 1999 and was for a period from 5 May 1999 to 4 May 2002. The plaintiff, lessee did not enter into possession and the property has been relet. The amount claimed is for items such as rent, less the amount that will be recovered under the lease to the new tenant. The claim is thus in respect of a liquidated claim and there was no suggestion that it was not a debt in respect of which a demand could be issued. The plaintiff did not enter into possession following upon disputes between it and the defendant about representations alleged to have been made as to the suitability of the premises for the plaintiff's business. 2 The representations upon which the plaintiff alleges that it relied, and which were said to have been made prior to entering into the lease, were as follows:-