Aldoga Aluminium Pty Ltd v De Silva Starr Pty Ltd [2005] NSWSC 284

New South Wales Supreme Court

CITATION : Aldoga Aluminium Pty Ltd v De Silva Starr Pty Ltd [2005] NSWSC 284

HEARING DATE(S) : 1 April 2005

JUDGMENT DATE : 1 April 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Statutory demand set aside.

CATCHWORDS : CORPORATIONS - STATUTORY DEMAND - Application to set aside - whether genuine dispute as to existence of contract - whether Plaintiff precluded from raising existence of contract by operation of s.15(4) Building and Construction Industry Security of Payment Act 1999 (NSW) - whether facts demonstrated genuine dispute.

- Building and Construction Industry Security of Payment Act 1999 (NSW) - s.14, s.15, s.25 LEGISLATION CITED : - Corporations Act 2001 (Cth) - Pt 5.4, s.459A, s.459C, s.459G

- Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553 CASES CITED : - Greenaways Australia Pty Ltd v CBC Management Pty Ltd [2004] NSWSC 1186 - Redglove Holdings Pty Ltd v GNE & Associates Pty Ltd (2001) 165 FLR 72, (2002) 20 ACLC 304

Aldoga Aluminium Pty Ltd - Plaintiff PARTIES : De Silva Starr Pty Ltd - Defendant

FILE NUMBER(S) : SC 5590/04

P.J. Dowdy - Plaintiff COUNSEL : Ms V. Culkoff - Defendant

Deacons - Plaintiff SOLICITORS : J. Biady & Associates - Defendant

LOWER COURT JURISDICTION :

Ex tempore

Introduction

1 This is an application under s.459G of the Corporations Act 2001 (Cth) to set aside a Statutory Demand issued by the Defendant on 21 December 2004. The Statutory Demand claims an amount of $31,084.18, which is said to be owing pursuant to an oral contract between the Plaintiff and the Defendant for the design by the Defendant of the layout and fit-out of new office premises for the Plaintiff. 2 The Originating Process was filed on 14 October 2004. There is no issue but that the Originating Process was served within time and that the nature of the dispute is sufficiently set forth in the supporting affidavit. 3 The Plaintiff asserts that there is a genuine dispute as to the existence of the alleged debt. The Plaintiff says that there was no oral contract for the fit-out of the new office premises in the terms alleged by the Defendant. Rather, the Plaintiff says, there was an agreement between the Plaintiff and the Defendant whereby the Defendant was to prepare plans sufficient for the purpose of obtaining development approval for the fit-out, but no further. Whether existence of dispute precluded by statute