Club Marconi of Bossley Park v AVR Services NSW Pty Ltd [2002] NSWSC 584

New South Wales Supreme Court

CITATION : Club Marconi of Bossley Park v AVR Services NSW Pty Ltd [2002] NSWSC 584 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1280/02 HEARING DATE(S) : 17 June, 2002 JUDGMENT DATE : 17 June 2002

PARTIES : Club Marconi of Bossley Park Social Recreation & Sporting Centre Limited - Plaintiff A.V.R. Services NSW Pty Ltd - Defendant JUDGMENT OF : Palmer J

COUNSEL : Mr P.A. Fury - Plaintiff Ms P.M. Lane - Defendant SOLICITORS : J.A. Buda & Associates - Plaintiff Kerrie Symons - Defendant CATCHWORDS : CORPORATIONS - STATUTORY DEMAND - GENUINE DISPUTE - Defendant claims a debt under a complex building contract - Plaintiff claims debt genuinely disputed - the grounds of the dispute ventilated in solicitors' correspondence - Defendant serves statutory demand. HELD: In a complex building dispute when it can be seen that there are honestly held competing views on either side the Court is justified in simply taking a broad brush approach and requiring the dispute to be dealt with by litigation in the ordinary way, unless it can see clearly and without protracted enquiry that the assertion of a genuine dispute is unfounded. INDEMNITY COSTS - Successful Plaintiff claims indemnity costs on basis that Defendant ought not to have served statutory demand when the debt was genuinely disputed. HELD: A putative creditor is entitled to test the genuineness of an alleged dispute as to the debt by invoking the machinery of the statutory demand and it cannot be penalised by an indemnity costs order merely because the statutory demand is ultimately set aside. LEGISLATION CITED : Corporations Act, 2001 (Cth) - s.459E, s.459G - Eyota Pty Limited v Hanave Pty Ltd (1994) 12 ACSR 785 - John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 - W & F Lechner Pty Limited v Drummond & Rosen Pty Limited (2001) 38 ACSR 42 CASES CITED : - Mibor Investments Pty Limited v Commonwealth Bank of Australia [1994] 2 VR 290 - Process Machinery Australia Pty Ltd v ACN 057 260 590 2002 NSWSC 45 - Redglove Holdings Pty Ltd v GNE & Associates Pty Ltd [2001] NSWSC 867 - Rohalo Pharmaceuticals Pty Limited v R P Scherer SpA & Pharmagel SpA (1994) 15 ACSR 347 DECISION : Statutory demand set aside; Defendant to pay the Plaintiff's costs on a party/party basis.