Composite Technology R&D Pty Ltd v. Echidna Technologies Pty Ltd [2003] NSWSC 1222

New South Wales Supreme Court

CITATION : Composite Technology R&D Pty Ltd v. Echidna Technologies Pty Ltd [2003] NSWSC 1222 HEARING DATE(S) : 12 December, 2003 JUDGMENT DATE : 12 December 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Originating Process dismissed.

CATCHWORDS : CORPORATIONS - STATUTORY DEMAND - application to set aside statutory demand on ground of offsetting claim - affidavit in support of originating process does not give sufficient particularity to demonstrate offsetting claim is genuine - later affidavit evidence not admissible because the evidence did not relate to the same claim as was raised in original supporting affidavit. LEGISLATION CITED : Corporations Act 2001 (Cth) - s.459G, s.459H - Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 CASES CITED : - Karimbla Construction Services Pty Ltd v Alliance Group Building Services Pty Ltd [2003] NSWSC 617 - Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 - Panforta Pty Ltd v International Marine Electrics Pty Ltd [2003] QSC 287 PARTIES : Composite Technology R&D Pty Limited - Plaintiff Echidna Technologies Pty Ltd - Defendant FILE NUMBER(S) : SC 5348/03 COUNSEL : R.R.I. Harper - Plaintiff A.J. Bulley - Defendant SOLICITORS : Sage - Plaintiff Dibbs Barker Gosling - Defendant

Ex tempore

1 This is an application by the Plaintiff under s.459G of the Corporations Act 2001 (Cth) to set aside a statutory demand served by the Defendant on 29 September 2003. The statutory demand claims a debt arising out of three invoices totalling $24,065.25. The debt is said to arise by reason of services provided to the Plaintiff by the Defendant. 2 The Plaintiff commenced these proceedings by an Originating Process filed on 16 October 2003. There was filed with the Originating Process an affidavit by the corporate manager of the Plaintiff, Mr Sam Francipane. That was the only affidavit filed in support of the Originating Process within the time of 21 days required by s.459G(3) of the Corporations Act . In that affidavit Mr Francipane relevantly deposes as follows: "3. The Plaintiff employed the services of the Defendant in respect to providing engineering expertise and testing of the proposed technology. The Defendant executed a confidentiality agreement on 31 May 2002. Annexed hereto and marked "A" is a copy of the agreement.