Ednalyn Gardens v Kovarfi & Anor [2000] NSWSC 605

New South Wales Supreme Court

CITATION : Ednalyn Gardens v Kovarfi & Anor [2000] NSWSC 605 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1648/00 HEARING DATE(S) : 1 May 2000 JUDGMENT DATE : 1 May 2000

Ednalyn Gardens Pty Limited (Plaintiff) PARTIES : v Attila Kovarfi and Edith Etelka Kovarfi (Defendant) JUDGMENT OF : Davies AJ

COUNSEL : P: Mr T Alexis D: Mr R Montgomery SOLICITORS : P: Rockliffs D: Bryan McCarthy CATCHWORDS : Corporation - Statutory demand - whether genuine dispute between the parties - whether affidavit disclosed material facts. Corporations Law, ss459G, 459H,459S LEGISLATION CITED : Trade Practices Act 1974 (Cth) Fair Trading Act 1987 CASES CITED : Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 14 ACLC 1703 Collier Nominees Pty Ltd v Consolidated Constructions Pty Ltd (Santow J, unrep, 3/7/98) DECISION : See paragraph 16.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

DAVIES AJ

1 MAY 2000 1648/00 - EDNALYN GARDENS PTY LIMITED v Attila KOVARFI and Edith Etelka KOVARFI JUDGMENT 1 HIS HONOUR: It has been brought to my attention that the oral judgment which I delivered on 1 May 2000 has not been transcribed and that the notebook recording my reasons for judgment cannot be located. Accordingly, I now set out my reasons for the orders made on 1 May 2000 as I recall them. 2 This is an application to set aside two statutory demands arising out of building works carried out by the defendants for the plaintiff. The details of the first statutory demand were: "SCHEDULE Description of Debt Contract price pursuant to Agreement dated 3rd of December, 1998 $375,000.00 Less paid $177,000.00 Sub-total $198,000.00 Less paid 8th February, 2000 $120,000.00 Balance $ 78,000.00 TOTAL DEBT: $78,000.00" 3 The details of the second demand were: "SCHEDULE Description of Debt Balance owing by the Company to the Creditors pursuant to an Agreement made 11th February, 1999 for building works at 126 Lawrence Street, Harbord being as follows: Interest on 4th Invoice to 7th February, 2000 $ 1,134.61 Interest on 5th Invoice to 7th February, 2000 $ 56.75 PC Price Adjustment $ 8,023.80 Variations $ 4,902.70 Interest on PC Price Adjustment and Variations $ 21.25 $14,169.11 " 4 The plaintiff, Ednalyn Gardens Pty Limited, has applied to the Court for an order setting aside those statutory demands. The defendants have countered that application with an application that the plaintiff's summons be summarily dismissed. 5 Relevant provisions of the Corporations Law provide as follows: