BBX Holdings Ltd v American Home Assurance Company [2007] NSWSC 549

New South Wales Supreme Court

CITATION : BBX Holdings Ltd v American Home Assurance Company [2007] NSWSC 549

HEARING DATE(S) : 18/05/07

JUDGMENT DATE : 18 May 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 18 May 2007

DECISION : 1.Order that the originating process be dismissed; 2. order that the plaintiff pay the defendant's costs.

CATCHWORDS : CORPORATIONS – Winding up – Statutory demand – Application for order setting aside – Whether genuine dispute as to quantum of debt shown – Debt arising under cancelled contract of insurance – Where clause in policy provides that insurer to retain "customary short rate proportion of the premium" and policy cancelled by insured – Question of what proportion of annual premium to be paid for the period during which policy in force – Question of whether there is a genuine dispute can be decided as a matter of law where question arises on the construction of the contract and does not depend upon conflicting evidence requiring findings of fact – Held that no genuine dispute as a matter of law – Order that originating process be dismissed. - CONTRACTS – General contractual principles – Construction and interpretation of contracts.

LEGISLATION CITED : Corporations Act 2001 (Cth)

Lane, Walker, Rudkin Ltd v Yorkshire Insurance Co Ltd [1928] NZLR 77 K C T Sutton, Insurance Law in Australia, 3rd ed (1999) Sydney, LBC Information Services CASES CITED : Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452 Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411 Delnorth Pty Ltd v State Bank of New South Wales (1995) 17 ACSR 379 Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 705; (2006) 22 BCL 31