Asia Pacific Glass v Sindea Trading Co (No 2) [2003] NSWSC 845

Reported Decision : 47 ACSR 737

New South Wales Supreme Court

CITATION : Asia Pacific Glass v Sindea Trading Co (No 2) [2003] NSWSC 845 HEARING DATE(S) : 10/09/03 JUDGMENT DATE : 12 September 2003

JURISDICTION: Equity Division Corporations List JUDGMENT OF : Barrett J DECISION : Interlocutory process dismissed with costs

CATCHWORDS : CORPORATIONS - winding up - earlier order setting aside statutory demand subject to condition - condition not fulfilled - whether earlier order may be varied to overcome non-fulfilment LEGISLATION CITED : Corporations Act 2001 (Cth), ss.459H, 459M Supreme Court Rules, Part 40 rule 9(1), Part 42 rule 11 Australian Vineyard Management Ltd v Madden [1998] NSWSC 84 City of Westminster Assurance Co Ltd v Ainis (1975) 29 P&CR 469 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 CASES CITED : McIvor v Donald [1984] 2 NZLR 487 Natcraft Pty Ltd v WIN Television Pty Ltd [2003] 1 QdR 196 Talbot v Blindell [1908] 2 KB 114 Wickman Machine Tool Sales Ltd v Schuler [1972] 2 All ER 1173 PARTIES : Asia Pacific Glass Pty Ltd - Plaintiff Sindea Trading Co Pty Ltd - Defendant FILE NUMBER(S) : SC 6098/02 COUNSEL : Mr J.T. Johnson - Plaintiff Mr A.J. Abadee - Defendant SOLICITORS : Macedone Christie Willis - Plaintiff Hunt & Hunt - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

FRIDAY, 12 SEPTEMBER 2003

6098/02 – ASIA PACIFIC GLASS PTY LIMITED v SINDEA TRADING CO PTY LTD (NO 2) JUDGMENT 1 On 23 April 2003, I made an order in these proceedings as follows: "Order that the statutory demand a copy of which is the annexure B to the affidavit of Brett Mace affirmed 19 December 2002 and filed 23 December 2002 be set aside on condition that the plaintiff, not later than 31 May 2003, commence in a court of competent jurisdiction (and file and serve originating process containing or accompanied by particulars of claim and of damages in respect of) the legal proceedings described in the first three sentences of paragraph 26 of that affidavit." 2 The foundation for this order was ss.459H and 459M of the Corporations Act 2001 (Cth). Section 459H(3) compels the court to set aside a statutory demand where it concludes that the "substantiated amount" is less than the "statutory minimum". Such a conclusion must, of course, be reached on the balance of probabilities. Section 459M says that an order under s.459H "may be made subject to conditions". The conditional form of the order of 23 April 2003 derives from s.459M. 3 The considerations that led to the conditional form of order were referred to in my reasons for judgment. I concluded that the plaintiff had shown to the requisite level the existence of an offsetting claim for the purposes of s.459H(1)(b) and had ascribed to it a monetary value that had what I described as "at least some basis in logic sufficient to be accepted for the purposes of the assessment the court is called upon to under at this stage", that is, the s.459G stage. I added, however, that the quantification was "of a broad-brush kind that might not in the fullness of time withstand detailed scrutiny"; also that it was noteworthy that the plaintiff had not, as at April 2003, acted upon the intention stated in an affidavit sworn by its director on 19 December 2002 "to file a claim for damages in early January 2003" in respect of the defendant's alleged breaches of contract and unconscionable conduct. The nature of the damages intended to be claimed was also stated in the affidavit. 4 By an interlocutory process filed in court when the matter came back before me on 10 September 2003, the plaintiff seeks variation of the order made on 23 April 2003 and, in doing so, relies on Part 40 rule 9(1) of the Supreme Court Rules: "The Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment." 5 It is said by the plaintiff and, as I understand it, not disputed by the defendant that the order of 23 April 2003 has not been entered. The plaintiff therefore submits that Part 40 rule 9(1) is available as a source of jurisdiction to vary the order. The precise order the plaintiff seeks is: "An order varying the terms of order 1 made by the Court on 23 April 2003 to the extent that the time within which the condition attaching to the order is required to be satisfied be extended from 31 May 2003 until 20 June 2003."