ACN 000 016 213 v KYLE [2006] NSWSC 544

New South Wales Supreme Court

CITATION : ACN 000 016 213 v KYLE [2006] NSWSC 544

HEARING DATE(S) : 01/06/2006

JUDGMENT DATE : 11 July 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

CATCHWORDS : Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Act. Whether the circumstances giving rise to an estoppel make the alleged dispute not a genuine dispute.

PARTIES : ACN 000 016 213 Pty Limited (Subject to a Deed of Company Arrangement) ACN 000 016 213 v Kyle House Pty Limited ACN 093 087 373

FILE NUMBER(S) : SC 5679/2005

COUNSEL : Mr JT Johnson for plaintiff Mr R Parsons for defendant

SOLICITORS : Watson Mangioni for plaintiff Norbert Lipton & Co for defendant

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

Associate Justice Macready

Tuesday 11 July 2006

5679 of 2005 ACN 000 016 213 PTY LIMITED (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) ACN 000 016 213 v KYLE HOUSE PTY LIMITED ACN 093 087 373 JUDGMENT 1 His Honour: This is an application by the plaintiff, ACN 000 016 213 Limited, to set aside a statutory demand pursuant to section 459G of the Corporations Act 2001. The demand was dated 11 October 2005 and claimed a sum of $54,406.12 being arrears of rent said to be payable by the plaintiff to the defendant for the months of July, August, September and October 2005. Background history 2 On or about 29 October 2001, the plaintiff and the defendant entered into a lease at shop 1, Ground Floor, Kyle House, 27-31 Macquarie Place, Sydney. The lease was for a term of 5 years commencing on 1 December 2001 and terminating on 30 November 2006. The rent was payable by monthly instalments of $10,750.00 plus GST plus outgoings under the lease. The Plaintiff entered into possession of the premises pursuant to the lease and conducted from the premises a stationery and office supplies shop. 3 On 8 March 2004 David Lombe and John Lethbridge Greig, of Deloitte Touche Tohmatsu Chartered Accountants, were appointed administrators of the company, pursuant to section 436A of the Act, as and from 8 March 2004. 4 The administrators continued to pay the rent payable under the lease. 5 In June 2004 there was a Deed of Company Arrangement which had effect from 25 June 2004. At that stage the company was still carrying on business and rent continued to be paid under the lease. 6 On 28 February 2005 the plaintiff company vacated the property the subject of the lease and in March 2005 handed the keys over to the Managing Agent so that they could look for a replacement tenant. Rent continued to be paid for the four months from the date the property was vacated up to and including June 2005. Rental payments then ceased and as can be seen the demand seeks recovery of the next four months' rent which was not paid. The plaintiff's claims 7 The plaintiff raises the following matters in order to set aside the statutory demand.