Champion v Satori [2004] NSWSC 665

New South Wales Supreme Court

CITATION : Champion v Satori [2004] NSWSC 665 HEARING DATE(S) : 22/07/04 JUDGMENT DATE : 22 July 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paras 42 and 43

CATCHWORDS : Corporations Law. Application under Corporations Act to set aside demand under s459G of the Corporation Act. Demand set aside. No matter of principle. PARTIES : Champion Home Sales Pty Limited v Satori Partners Pty Limited FILE NUMBER(S) : SC 1389/04 COUNSEL : Mr G.R. Sirtes for plaintiff Mr T. Orlizki for defendant SOLICITORS : Coleman & Greig for plaintiff Norman Waterhose for defendants

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

MASTER MACREADY

THURSDAY 22 JULY 2004

1389/04 - CHAMPION HOME SALES PTY LIMITED v SATORI PARTNERS PTY LIMITED

JUDGMENT

1 MASTER: This is an application under section 459G of the Corporations Act to set aside a statutory demand dated 8 November 2003 in the sum of $53,845 served by the defendant on the plaintiff. 2 The debt claimed in the demand arrises out of an agreement for the supply of finance by the defendant, who is a finance broker, to the plaintiff, who is a property developer. 3 The specific discussions which led to an agreement concerned a development proposal for a certain number of units or buildings at a place called Yallah on the New South Wales South Coast. There were some pre-contract discussions between Mr Anderson from the defendant and Mr Malesev from the plaintiff about the engagement of Mr Anderson's company to provide financial services, namely, obtaining offers of finance from banks and other finance providers. 4 These particular financial discussions are referred to in paragraph 7 of Mr Malesev's affidavit. In essence, one of the points that Mr Malesev was making is that he would need two lots of finance. First was to purchase the land, and secondly, to build the houses. He did not think 100 per cent was too farfetched; he came to the conclusion he would need at least 80 per cent for the acquisition costs for the properties, and then 80 per cent on the construction mode. 5 There was then a document, which was an agreement between the plaintiff and the defendant, submitted to Mr Malesev and he signed it and returned the agreement. That agreement was dated 13 November 2003. Importantly, page 1 sets out the amount of finance sought, and the type of finance, and reference is made there to $3.24 million, being 80 per cent of the land acquisition cost, and "that amount the lenders offer to finance in order to fund the construction contract upon the security being offered". That was arguably inconsistent with what was required in the particular pre-contract discussions. 6 The other clauses relevant to this present dispute are, firstly, clause 5 of that agreement. That clause is in the following terms: "5. The applicant may determine the Appointment Period early by and upon providing written notice and Determination Payment to DMP (Determination Payments are only deemed to have been made upon DMP's receipt of cleared funds from the Applicant) in the following circumstances: