Aamac v Eco-Farms [2004] NSWSC 193

New South Wales Supreme Court

CITATION : Aamac v Eco-Farms [2004] NSWSC 193 HEARING DATE(S) : 12/03/04 JUDGMENT DATE : 12 March 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Application dismissed with costs.

CATCHWORDS : Corporations Law. Application to set aside statutory demand. No matter of principle. PARTIES : Aamac Warehousing & Transport Pty Limited v Eco-Farms Pty Limited FILE NUMBER(S) : SC 6096/03 COUNSEL : Mr R. Keller for plaintiff Mr J. Orsborn for defendant SOLICITORS : McKells Solicitors for plaintiff Hicksons Solicitors for defendant

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

EQUITY DIVISION

12 MARCH 2004

MASTER MACREADY

06096/03 - AAMAC WAREHOUSING AND TRANSPORT PTY LIMITED v ECO-FARMS PTY LIMITED

JUDGMENT

1 MASTER: This is an application to set aside a statutory demand. The statutory demand is dated 12 November 2003 and claims an amount of $17,500 which is one month's rent for a period of a sublease. 2 The defendant is the sublessor and the plaintiff is the sublessee under a sublease that commenced allegedly on 1 Mach 2003. It was not executed until 14 May 2003. 3 The actual plaintiff went into occupation on 24 February 2003. It vacated on 14 November 2003. 4 There are sought to be raised a number of matters. Two matters by the plaintiff in support of its application to set aside the demand and one by the defendant in relation to the actual proceedings, namely, whether they should be struck out. 5 I will deal with the last one first. The affidavit in support did not comply with the provisions of rule 2.4A of the Corporations Rules which require that a copy of a company search in respect of the plaintiff be annexed to the affidavit in support. The rule is expressed in mandatory terms. However, the rules in clause 1.32(5) provide that the other Court rules may apply if relevant but not inconsistent. 6 This brings into play the general power of the Court to relieve from the operation of the rules under the Supreme Court Rules Part 1, Rule 12. There is certainly a number of cases where it would be useful to have a company search of the plaintiff particularly where questions of service and other matters are necessary and have to be investigated. However, in the present matter the parties are here and nothing much touches on anything in or found out from a company search. 7 Accordingly, I dispense with the requirement to annex the company search and I so order. 8 The plaintiff bases its application on two grounds. Firstly, it says there is a genuine dispute because the actual terms of the lease provide that no rental is payable in respect of the period up until 12 April 2004. That appears because in the lease itself clause 14.01 of the head lease has been deleted and in its place is a clause in these terms: "Notwithstanding the provisions of section 3, the rent for the first year of the lease shall be paid by the first lessee and only obliged to commence paying rent as from 12 April 2004".