Infact v Kyle [2005] NSWSC 821

New South Wales Supreme Court

Infact v Kyle [2005] NSWSC 821 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 12/08/2005

JUDGMENT DATE : 16 August 2005

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraphs 31

CATCHWORDS : Corporations Law. Application under s 459G of the Corporations Act to set aside a statutory demand. - Demand set aside. No matter of principle.

PARTIES : Infact Consulting Pty Limited v Kyle House Pty Limited

FILE NUMBER(S) : SC 2836 of 2005

COUNSEL : Mr R. Parsons for defendant

Mr D. Knaggs for plaintiff SOLICITORS : Norbert Lipton & Co for defendant

LOWER COURT JURISDICTION :

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

ASSOCIATE JUSTICE MACREADY

TUESDAY 16 AUGUST 2005

2836/05 - INFACT CONSULTING PTY LIMITED v KYLE HOUSE PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an application to set aside the statutory demand under s 459G of the Corporations Act. The demand was dated 18 April 2005 and claimed an amount of $7902.54 being: "Amount payable pursuant to terms of settlement dated 8 February 2005 filed in the Local Court (Civil Claims) proceeding number 3300/04." 2 As is apparent, there was a settlement in the Local Court proceedings. Those proceedings were by the defendant lessor against the plaintiff lessee to recover outstanding amounts under the lease. 3 The defendant vacated the premises on 31 October 2003. The amount of arrears was the subject of the litigation in the Local Court. The terms of settlement which they reached were as follows: "1. Statement of claim dismissed. 2. Cross-claim dismissed. 3. No order as to costs. 4. Note the agreement: (a) The plaintiff will within fourteen days make available to the Defendant or his agent all documents called for in the Defendant's Notice to Produce dated 30 January 2005 for the period 1 January 2003 to 31 October 2003 ('the period'). (b) Subject to clause 4(c) hereof, within fourteen days of receipt of a Reconciliation Statement by the Defendant for the period, the Defendant will pay to the Plaintiff's solicitor $8,000 plus or minus the debit or credit shown in the Reconciliation Statement. (c) In the event that the said debit or credit is disputed by the Defendant, the dispute shall be referred to an accountant appointed by the President of the Australian Institute of Chartered Accountants (NSW) whose determination shall be final and conclusive. (d) In the event of a referral as provided in clause 4(c) hereof, the Defendant will pay to the Plaintiff's solicitor:- (i) within fourteen days of receipt of the Reconciliation Statement, the sum of $5,000 to be held in trust pending the determination of the dispute;