Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553

New South Wales Supreme Court

CITATION : Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553 HEARING DATE(S) : 11 June 2004 JUDGMENT DATE : 11 June 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Offsetting claim permissible in principle. Amount of statutory demand reduced.

CATCHWORDS : CORPORATIONS - winding up - statutory demand - application to set aside or vary on basis of offsetting claim - statutory demand based on judgment debt arising from determination under Building and Construction Industry (Security of Payment) Act 1999 - whether possible to have an offsetting claim against such a judgment debt - whether offsetting claim established on the facts - STATUTES - ACTS OF PARLIAMENT - operation and effect of statutes - Building and Construction Industry (Security of Payment) Act 1999 - whether judgment debt arising from adjudication under that Act can be subject of an "offsetting claim" for purposes of section 459H(5) Corporations Act 2001 (Cth) - CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - adjudication under Building and Construction Industry (Security of Payment) Act 1999 becomes subject of judgment debt - whether able to be the subject of an "offsetting claim" under section 459H(5) Corporations Act 2001 (Cth) Building and Construction Industry (Security of Payment) Act 1999 LEGISLATION CITED : Corporations Act 2001 (Cth) Trade Practices Act 1974 (Cth) CASES CITED : Max Cooper & Sons (Builders) Pty Limited v M & E Booth & Sons Pty Limited [2003] NSWSC 929; (2003) 47 ACSR 696; (2003) 202 ALR 680 Edge Technology Pty Limited v Lite-on Technology Corporation (2000) 34 ACSR 301 PARTIES : M & D Demir Pty Ltd - Plaintiff Graf Plumbing Pty Ltd - Defendant FILE NUMBER(S) : SC 2114/04 COUNSEL : M Tyson - Plaintiff D Ziman, solicitor - Defendant SOLICITORS : Kydon Segal - Plaintiff David Landa Stewart - Defendant