Ettamogah Pub (Rouse Hill) Pty Limited v Consolidated Constructions Pty Ltd (in liq) [2006] NSWSC 1450

New South Wales Supreme Court

CITATION : Ettamogah Pub (Rouse Hill) Pty Limited v Consolidated Constructions Pty Ltd (in liq) [2006] NSWSC 1450

HEARING DATE(S) : 17/11/06

JUDGMENT DATE : 17 November 2006

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 11/17/2006

DECISION : 1. Order that the statutory demand dated 14/3/06 served on the plaintiff by the defendant be set aside; 2. Order the defendant to pay the plaintiff's costs; 3. Exhibits may be returned forthwith but to be retained for 28 days.

CATCHWORDS : CORPORATIONS – Winding-up – Winding-up in insolvency – Statutory demand – Application to set aside statutory demand – Genuine dispute as to indebtedness – Offsetting and other like claims – Plaintiff and defendant, a builder, entered into building contract – Defendant lodged payment claims with plaintiff pursuant to s 13 Building and Construction Industry Security of Payment Act 1999 (NSW) – Plaintiff liable to pay defendant pursuant to s 14(4) Security of Payment Act – Defendant commenced proceedings and obtained judgment in its favour – Defendant served plaintiff with statutory demand in same amount as judgment debt – Whether seriously arguable that plaintiff entitled to relief pursuant to s 32 Security of Payment Act – Whether seriously arguable that plaintiff entitled to damages against defendant for defendant's failure to complete building works on time – Whether seriously arguable that plaintiff entitled to damages against defendant for cost of rectifying defects in building works – s 459H Corporations Act 2001 (Cth) considered – Whether failure of plaintiff to lodge proofs of debt against defendant, now in liquidation, precludes plaintiff from raising alleged offsetting claims – Application granted.