Progroup v Metro [2001] NSWSC 536

Reported Decision : (2001) 19 ACLC 1434

New South Wales Supreme Court

CITATION : Progroup v Metro [2001] NSWSC 536 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2644/00 HEARING DATE(S) : 3rd and 4th April 2001 JUDGMENT DATE : 29 June 2001

PARTIES : Progroup Management Pty Ltd v Metro Chemicals Pty Ltd JUDGMENT OF : Master Macready at 1

COUNSEL : Mr B. Coles QC and Mr P. Barham for plaintiff Mr D.E. Grieve QC and Mr G.L. Raffell for defendant SOLICITORS : Somerville & Co for plaintiff Benjamin & Khoury for defendant CATCHWORDS : Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Law. - Consideration of sufficiency of affidavit in support and whether the whole demand should be set aside as an abuse of process. Demand varied. Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACLC 669 Elrington v Judd (1964) 64 SR (NSW) 150 CASES CITED : Dougal v McCarthy [1893] 1 QB 736 Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund 21 ACSR 581 at 587-588 Callite Pty Ltd v Adams [2001] NSWSC 52. DECISION : Paragraph 27

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1 MASTER: This is an application to set aside a Statutory Demand pursuant to s 459G of the Corporations Law. The demand was dated 9 May 2000 and served on 17 May 2000. It claimed the sum of $214,571.37 in respect of 83 invoices from the defendant to the plaintiff. 2 The plaintiff is a contractor which has a head contract to the Public Works Department to do maintenance work on the Department of Education's schools. The defendant is a sub-contractor who does work from time to time pursuant to a contract with the plaintiff. 3 The relevant contracts at the commencement of the relationship between the plaintiff and the defendant with which I am concerned were dated 17 and 19 September 1998. The first contract relates work to be done in three regions being Hornsby, Parramatta and the Northern Beaches and covers a wide variety of maintenance work. The latter relates to painting for one particular area. The contracts are in almost identical terms. 4 It is worth noting a number of the terms of the contract. 5 The subcontracts stated that the subcontractor will "Supply Facilities Maintenance Services as set out in the Scope section of the contract, or requested by Official Works Orders issued by the main contractor from 1998 to 30 April 1999 for remuneration as set out in the Contract documents", but a payment schedule annexed as annexure A to the subcontracts provides for claims to be submitted up to 21 August 1999. Taking the earlier subcontract, the scope of contract is on page 2. It states on the middle of the page that "the period of this contract… may be extended by negotiated agreement between both parties in one year intervals".