Morehuman (Australia) Pty Ltd v Talimor Pty Ltd [2006] NSWSC 1027

New South Wales Supreme Court

CITATION : Morehuman (Australia) Pty Ltd v Talimor Pty Ltd [2006] NSWSC 1027

HEARING DATE(S) : 26/09/06

JUDGMENT DATE : 26 September 2006

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 09/26/2006

DECISION : 1. Order that the originating process be dismissed; 2. The plaintiff to pay the defendant's costs.

CATCHWORDS : CORPORATIONS – Winding-up – Application to set aside statutory demand – Plaintiff received advance by way of loan from trust of which defendant is trustee – Loan evidenced by written contract signed by director of plaintiff – Signing of written contract preceded by discussions between director of plaintiff and appointor of trust – Discussions suggested repayment schedule materially different from that stipulated by written contract – Defendant sought repayment of loan by plaintiff – Defendant served statutory demand on plaintiff – Whether debt owed by plaintiff presently due and payable – Whether seriously arguable that discussions between director of plaintiff and appointor of trust brought about immediately binding agreement for loan – Where discussions included no reference to rate of interest – Whether relevant that director of plaintiff did not carefully read written contract – Whether relevant that defendant did not initially demand adherence to repayment schedule stipulated by written contract – Whether seriously arguable that defendant estopped from calling up loan as a result of representations by appointor of trust – Where defendant has not acted unconscionably – Held no genuine dispute that debt owed by plaintiff was not presently due and payable – Application to set aside statutory demand dismissed.