Hilldale v Leveraged Equities [2007] NSWSC 867

New South Wales Supreme Court

CITATION : Hilldale v Leveraged Equities [2007] NSWSC 867

HEARING DATE(S) : 25 July 2007 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 25 July 2007

DECISION : The statutory demand of 13 April 2007 is varied by reducing it by the figure of $381,221.

CATCHWORDS : CORPORATIONS – Application under s 459G of the Corporations Act 2001 (Cth) ("the Act") to set aside statutory demand – Moneys advanced for purchase of shares and options – Loan facility entitled lender to demand repayment absent default within 5 days of notice being given – Lender "closed out" borrower on grounds that borrower was acting in accordance with a strategy impermissible under the loan facility – Borrower contends that lender led borrower to believe strategy was permissible, raising an arguable conventional or promissory estoppel or misleading and deceptive conduct in contravention of either the Trade Practices Act 1975 (Cth) the Australian Securities and Investment Commission Act 2001 (Cth) or the Act – On the plaintiff's case detriment less than loan debt owed – Whether genuine dispute as to existence of debt or offsetting claim for equitable compensation – Demand varied by reducing amount to maximum detriment demonstrated

Corporations Act 2001 (Cth) LEGISLATION CITED : Trade Practices Act 1975 (Cth) Australian Securities and Investments Commission Act (2001) (Cth)

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 : Commonwealth v Verwayen (1990) 170 CLR 394 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Sewmail (Australia) Pty Limited v Booby Traps Pty Limited 23 ACSR 339