Alliance Accounting & Business Consultants Pty Ltd v Australian Property Investment & Development Pty Ltd [2007] NSWSC 775

New South Wales Supreme Court

CITATION : Alliance Accounting & Business Consultants Pty Ltd v Australian Property Investment & Development Pty Ltd [2007] NSWSC 775

HEARING DATE(S) : 18/06/07

JUDGMENT DATE : 19 June 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 19 June 2007

DECISION : 1. Order that the statutory demand dated 11 April 2007 served by the defendant on the plaintiff be set aside; 2. order that the defendant pay the plaintiff's costs of the proceedings; 3. order that the costs of 18 June 2007 be paid on an indemnity basis.

CATCHWORDS : CORPORATIONS – Winding up – Statutory demand – Application for order setting aside under s 459G of the Corporations Act 2001 (Cth) – Where there is a genuine dispute about the existence of debt – Offsetting claim – Demand issued for arrears of rent due to defendant where plaintiff has seriously arguable claim against defendant for breach of lease covenants, damages for which would exceed admitted total – Order that statutory demand be set aside. - PROCEDURE – Costs – Departing from the general rule – Order for costs on indemnity basis – Where defendant unreasonably persisted in claim – Where it ought to have been apparent that there was a genuine dispute as to the debts claimed – Order that defendant pay costs of hearing on indemnity basis.

LEGISLATION CITED : Corporations Act 2001 (Cth)

Duke of Westminster v Guild [1985] QB 688 Carbure Pty Ltd v Brile Pty Ltd [2002] ANZ ConvR 548; [2002] VSC 272 Carrathool Hotel Pty Ltd v Scutti [2005] ANZ Conv R 471; [2005] NSWSC 401 Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 Di Francesca Holdings Pty Ltd v Hatziplis Holdings Pty Ltd [2005] NSWSC 169 Rohalo Pharmaceutical Pty Ltd v R P Scherer SpA & Pharmagel SpA (1994) 15 ACSR 347 Dawson v Dyer (1833) 5 B & Ad 584; 110 ER 906 Edge v Boileau (1885) 16 QBD 117 Taylor v Webb [1937] 2 KB 283 CASES CITED : Dowse v Wynyard Holdings Limited [1962] NSWR 252 Hawkesbury Nominees Pty Ltd v Battik [2000] FCA 185 Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 Elm Financial Services v MacDougall [2004] NSWSC 560 Polaroid Australia Pty Ltd v Minicomp Pty Ltd (1998) 16 ACLC 529 Austrac Rail Pty Ltd v Hunter Premium Funding Pty Ltd [2001] NSWSC 654 CGI Information Systems and Management Consultants Pty Ltd v APRA Consulting Pty Ltd [2003] 47 ACSR 100 Professional Advantage Pty Ltd v Australian Broadcasting Commission [2007] NSWSC 607