Ozy Homewares v Wesgordon [2007] NSWSC 982

Reported Decision : (2007) 25 ACLC 1,239

New South Wales Supreme Court

CITATION : Ozy Homewares v Wesgordon [2007] NSWSC 982

HEARING DATE(S) : 13 August 2007 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 13 August 2007

DECISION : Statutory demand set aside

CATCHWORDS : CORPORATIONS – Application under s 459G of the Corporations Act 2001 (Cth) to set aside statutory demand – Demand relates to summary judgment obtained in Local Court pursuant to s 15 of the Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Act") which precluded applicant from bringing cross-claim or raising defence to claim – Applicant has appealed judgment and disputes debt – Whether debt is res judicata precluding genuine dispute as to existence of debt where applicant prevented from putting cross-claim or defence and s 32 of the Act allows for restitution following judgment – Whether "some other reason why the demand should be set aside" under s 459J(1)(b) of the Corporations Act given the circumstances – Whether money should be paid into Court under s 459M of the Corporations Act as pre-condition to setting aside demand – Statutory demand set aside without imposition of condition that money be paid into Court

LEGISLATION CITED : Corporations Act 2001 (Cth) Building and Construction Industry Security of Payment Act 1999 (NSW)

Macleay Nominees Pty Ltd v Belle Property East Pty Limited [2001] NSWSC 743 Solarite Airconditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411 CASES CITED : Barclays Australia (Finance) Limited v Mike Gaffikin Marine Pty Limited (1996) 21 ACSR 235 Eumina Investments Pty Limited v Westpac Banking Corporation Midas Management Pty Ltd v Equator Communications Pty Ltd [2007] NSWSC 759 Plus 55 Village Management Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 559