Australian v Cranswick [2004] NSWSC 827

New South Wales Supreme Court

CITATION : Australian v Cranswick [2004] NSWSC 827 HEARING DATE(S) : 06/09/04 JUDGMENT DATE : 10 September 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 26

CATCHWORDS : Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. Demand reduced as a result of offsetting claims. No matter of principle. PARTIES : Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd FILE NUMBER(S) : SC 2021 of 2004 COUNSEL : Mr D. Allen for plaintiff Mr J.T. Johnson for defendant SOLICITORS : Brooks & Co Business Lawyers for plaintiff Sally Nash & Co for defendant

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

Master Macready

Friday 10 September 2004

2021 of 2004 Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd JUDGMENT 1 Master: This is an application under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand served by the defendant upon the plaintiff. The demand was dated 26 February 2004 and sought recovery for an amount of $242,312.21. This was a claim for goods sold and delivered in an amount of $216,949.58 and the balance of $25,362.63 for interest pursuant to the credit terms upon which the goods were sold. 2 The application is made on the basis that the plaintiff has an offsetting claim against the defendant. In submissions there was also articulated a claim that there existed a genuine dispute in respect of the debt based upon a retention of title clause in the contract between the parties. This claim however was not in any way raised or foreshadowed in the affidavits filed within time and accordingly cannot be dealt with on this application. See Process Machinery Australia Pty Ltd v ACN 057 260 590 (2002) NSWSC 45 and POS Media Online Ltd v B Family Pty Ltd (2003) 21 ACLC 533; [2003] NSWSC 147. 3 The plaintiff is a wine distributor. The defendant is a supplier of wines to companies such as the plaintiff. On 24 May 2002 the plaintiff acquired the distribution businesses from the liquidators of certain companies who had previously dealt with the defendant. After the completion of the purchase there were conversations between officers of the plaintiff and the defendant about continuing the supply of wines through the plaintiff company. 4 On 27 June 2002 the defendant made an application for credit with the plaintiff. That application was granted and contained a number of relevant terms. In particular, clause 1(a) of the terms provided that: "Any purported supplement, qualification or change thereto shall be void unless accepted in writing signed by director or secretary of Cranswick."