FMA Facilities v Reflections Group [2006] NSWSC 257

New South Wales Supreme Court

CITATION : FMA Facilities v Reflections Group [2006] NSWSC 257

HEARING DATE(S) : 30 March 2006

JUDGMENT DATE : 30 March 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready

EX TEMPORE JUDGMENT DATE : 03/30/2006

DECISION : Paragraph 31

CATCHWORDS : Corporations Law. Application to set aside statutory demand under s459G of Corporations Act. Consideration of defects in the affidavit and whether there was an abuse of process. Demand not set aside as offsetting claim not quantified.

PARTIES : FMA Facilities Management Australia Pty Limited v Reflections Group Services Pty Ltd

FILE NUMBER(S) : SC 5222 of 2005

COUNSEL : Mr K. Pierce for plaintiff Mr. C.D. Wood for defendant

SOLICITORS : Thurlow Fisher for plaintiff

LOWER COURT DATE OF DECISION : 03/30/2006

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

ASSOCIATE JUSTICE MACREADY

THURSDAY 30 MARCH 2006

005222/05 - FMA FACILITIES MANAGEMENT AUSTRALIA PTY LIMITED v REFLECTIONS GROUP SERVICES PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an application to set aside a statutory demand under section 459G of the Corporations Act. The demand was dated 7 September 2005 and it claimed $69,091.52, being for maintenance and cleaning.

2 The parties had a subcontract between them for cleaning, which was coming to an end on 30 June 2005. There had been a tender in 2002 that had led to their contract which went over some years for a lump sum payment of $816,618.22 including GST.

3 Clause 6.3 of the contract provided for equal monthly instalments during the contract, the amount of which was in the sum of $69,091.52.

4 The parties' contract was ending on 30 June 2005 and there was to be a change as a result of the fresh tender process. The plaintiff, who had been the head contractor of the defendant up until then, won the tender for the future work. There therefore had to be a hand-over and in the process of this the same cleaners continued to do the work. Effectively on 30 June 2005, at midnight, there was a change in the supervisors and the companies responsible for the cleaning.