Marshin Motors Pty Ltd v W & S Xuereb Motorcycles Pty Ltd trading as Hawkesbury Dirt Bikes & Motorcycles [2007] NSWSC 649

New South Wales Supreme Court

CITATION : Marshin Motors Pty Ltd v W & S Xuereb Motorcycles Pty Ltd trading as Hawkesbury Dirt Bikes & Motorcycles [2007] NSWSC 649

HEARING DATE(S) : 04/06/07

JUDGMENT DATE : 4 June 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 4 June 2007

DECISION : 1. Order that the statutory demand dated 1 February 2007 served by the defendant on the plaintiff be set aside; 2. Order the defendant pay the plaintiff's costs of the proceedings.

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 – Agreement that moneys paid by defendant as advance payment for stock to be chosen by defendant in the future – No express or implied term that moneys paid as a loan or that moneys repayable by plaintiff upon demand or at future date – No debt due and payable – Order that statutory demand be set aside.

LEGISLATION CITED : Corporations Act 2001 (Cth)

Eyota Pty Ltd v and Hanave Pty Ltd (1994) 12 ACSR 785 A R Pilot Pty Ltd v Gouriotis [2007] NSWSC 396 CASES CITED : Re Elgar Heights Pty Limited (No. 1) [1985] VR 657 Remuneration Data Base Pty Ltd v Pauline Goodyear Real Estate Pty Ltd [2007] NSWSC 59 Heydon v Perpetual Executors Trustees and Agency Co (WA) Ltd (1930) 45 CLR 111 Schmierer v Taouk (2004) 207 ALR 301

Marshin Motors Pty Ltd PARTIES : v W & S Xuereb Motorcycles Pty Ltd trading as Hawkesbury Dirt Bikes & Motorcycles