Viktorija Pty Limited v Kevin Gerard Lindsay & Anor [2005] NSWSC 1274

New South Wales Supreme Court

CITATION : Viktorija Pty Limited v Kevin Gerard Lindsay & Anor [2005] NSWSC 1274

HEARING DATE(S) : 2 December 2005

JUDGMENT DATE : 2 December 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Application to set aside statutory demand refused.

CATCHWORDS : CORPORATIONS – STATUTORY DEMAND – Application to set aside – mere assertion of dispute of existence of debt – conclusion stated without sufficient particularity.

LEGISLATION CITED : Corporations Act 2001 (Cth) – s.459G

CASES CITED : Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 21 ACSR 581

Viktorija Pty Ltd – Plaintiff PARTIES : Kevin Gerard Lindsay – First Defendant Peta Anne Lindsay – Second Defendant

FILE NUMBER(S) : SC 4860/05

P.O'Loughlin – Plaintiff COUNSEL : N.A. Confos – Defendants

Conomos & Spinak – Plaintiff SOLICITORS : Moore & Associates – Defendants

LOWER COURT JURISDICTION :

Ex tempore

1 The Plaintiff seeks to set aside under s.459G of the Corporations Act 2001 (Cth) a statutory demand served on it on 16 August 2005. The demand seeks payment of a debt which is alleged to have arisen pursuant to an agreement between the parties expressed in an e-mail sent on 4 August 2005 from Mr Steven Brown representing the Plaintiff, Viktorija Pty Limited ("Viktorija"), to Mr Moore, representing the Defendants. 2 The agreement arises out of a Contract of Sale of a property at St Ives whereunder the Defendants agreed to sell certain property to Viktorija. The subject matter of the agreement expressed in the 4 August e-mail was an extension of time to be afforded to Viktorija for the completion of that contract. The terms of the agreement as evidenced in the 4 August e-mail are as follows: "1. Viktorija Pty Ltd will pay the following amounts on or before Tuesday 9 August 2005 being: