Pyrmont v O'Brien [2003] NSWSC 1258

New South Wales Supreme Court

CITATION : Pyrmont v O'Brien [2003] NSWSC 1258 HEARING DATE(S) : 19 November 2003 JUDGMENT DATE : 19 November 2003 JURISDICTION: Equity JUDGMENT OF : Master Macready at 1 DECISION : See paragraph 3

CATCHWORDS : Corporations - Application to set aside statutory demand under s 459G of the Corporations Act - Demand set aside - No matters of principle PARTIES : Pyrmont Commercial Property Pty Limited - Plaintiff O'Brien Glass Industries Limited - Defendant FILE NUMBER(S) : SC 5207/03 COUNSEL : Aitken for the Plaintiff Winters for the Defendant SOLICITORS : Monte Gildea Lawyer for the plaintiff Roxburgh & Co Solicitors for the defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Friday 19 November 2003

5207/03 Pyrmont Commercial Property Pty Limited v O'Brien Glass Industries Limited JUDGMENT 1 MASTER: In this matter there is an application to set aside a statutory demand. The statutory demand claimed a sum of $11,896.09 in respect of a judgment in the Balmain Local Court on 26th August 2003. That judgment has been set aside and the plaintiff has been let in to defend. I have before me a defence that has been filed. 2 I record that the defendant proposes to lodge today an appeal against the order of the Registrar letting the defendant in to defend. However, it will take some time for that to be dealt with and the present matter should be dealt with on the evidence when it comes on for hearing rather than being adjourned. 3 Apart from whether there is a genuine dispute in respect of the amount there is clearly evidence before me of an offsetting claim in an affidavit that refers to a sum of $40,000. In the circumstances I am satisfied that there is an offsetting claim and, as it is greater than the amount of the claim in the judgment debt, or indeed the underlying debt under that judgment, I set aside the demand dated 26th August 2003 served by the defendant on the plaintiff. 4 It has been suggested that the issue of costs should await the final determination of the matter in the Local Court. Evidence would need to be put on in respect of that final issue. However, I am only dealing with the application in respect of this particular proceeding. It may well be that the defendant will be ultimately successful in getting the judgment restored and he will have his costs in the Local Court. However, here the application has succeeded on the grounds referred to and I accordingly order the defendant to pay the plaintiff's costs. 5 The exhibits can be returned. **********