B&W Windows v Coshott Voits v Coshott [2008] NSWSC 49

New South Wales Supreme Court

CITATION : B&W Windows v Coshott Voits v Coshott [2008] NSWSC 49

HEARING DATE(S) : 04/02/08

JUDGMENT DATE : 11 February 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : Paragraph 22

CATCHWORDS : Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. No affidavit verifying demand. Whether judgment was a judgment debt. Held it was and demand set aside for failure to have affidavit verifying demand.

PARTIES : B&W Windows Pty Limited v Robert Gilbert Coshott Voits Holdings Pty Limited v Robert Gilbert Coshott

FILE NUMBER(S) : SC 4180/2007; 4311/2007

COUNSEL : Mr RA Parsons for B&W Windows Mr AJ O'Brien for Voits Holdings

SOLICITORS : Norbert Lipton & Co for B&W Windows Heckenberg Associates for Voits Holdings

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Monday 11 February 2008

4180 of 2007 B & W WINDOWS PTY LIMITED v ROBERT GILBERT COSHOTT 4311 of 2007 VOITS HOLDINGS PTY LIMITED v ROBERT GILBERT COSHOTT JUDGMENT 1 HIS HONOUR: This is the hearing of two proceedings which I have heard together. I have not ordered that the evidence in one proceeding be evidence in the other but as they concern similar facts and circumstances they were heard at the same time. 2 I will first deal with the proceedings of 4180 of 2007 B & W Windows Pty Limited v Coshott. 3 The proceedings are proceedings to set aside a statutory demand served by the defendant on the plaintiff company. The demand was dated 7 August 2007 but it was not signed. The description of the debt was "Order of Federal Magistrate Court made 21 June 2007". The amount of the debt as described in the schedule was "$9,939.50". 4 The plaintiff company is a company which was incorporated on 2 January 2007 and whose Australian Company Number is 123 250 224. Prior to the incorporation of this company Mr Robert Coshott had had dealings and litigation with another company that was previously called B&W Windows Pty Limited. That company had an Australian Company Number of 003 048 477. It changed its name to Voits Holdings Pty Limited on 6 February 2007. In respect of this older company there were District Court proceedings in which Mr Coshott commenced proceedings against them and a Mr Voit on 20 November 2006. He sued in respect of the failure to deliver some doors and windows and made a claim of some $38,000. 5 Before getting into the areas of confusion that arose by reason of the two companies it is useful to note that there was a deed for the sale of business dated 1 February 2007 in which the old company therein referred to as Voits Holdings Pty Limited agreed to sell to a new company certain business assets. The new company therein described as B&W Windows Pty Limited. The agreement contained the usual clauses for the transfer of those business assets and for the business itself to pass to the new company. The new company's directors were Mr Cohen and Mr Voits. In early May 2007 while dealing with his District Court proceedings Mr Coshott was served with a petition numbered SYG 1391/2007. That was a bankruptcy petition relying upon, inter alia, a bankruptcy notice issued on the basis of a Local Court judgment entered on 16 February 2007 by a company, B&W Windows Pty Limited for $15,544.63. 6 Mr Coshott then commenced proceedings on 18 May 2007 in the Federal Magistrates Court of Australia being proceedings SYG 1575/2007 against B&W Windows Pty Limited. In that proceeding he sought a declaration that the bankruptcy notice was invalid, the petition was invalid and that he had a cross-claim in the District Court in excess of the Local Court judgment. He also sought an extension of the bankruptcy notice. Those proceedings came on for hearing before a Federal Magistrate and on 21 June 2007 the Federal Magistrate set aside the bankruptcy notice, dismissed the creditors petition on which it was based and ordered the respondent to pay the applicant's costs of those proceedings. It will be recalled that under his demand Mr Coshott seeks to recover the costs which he says are due in respect of this judgment in the Federal Magistrates Court. 7 The present plaintiff, and I will refer to it as the new company, sought to set aside the demand on the following grounds: