Zamobay v Bank of Western Australia [2009] NSWSC 410

New South Wales Supreme Court

CITATION : Zamobay v Bank of Western Australia [2009] NSWSC 410

HEARING DATE(S) : 18/05/09

JUDGMENT DATE : 19 May 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 19 May 2009

DECISION : Paragraph 35

CATCHWORDS : Corporations. Application to set aside statutory demand under s459G of the Corporations Act. Absence of affidavit verifying demand in respect of a judgment debt claimed in the demand. Held that in circumstances not necessary for there to be an affidavit verifying the demand.

PARTIES : Zamobay Pty Ltd & Anor v Bank of Western Australia Limited

FILE NUMBER(S) : SC 5683/2008

COUNSEL : Mr B DeBuse for plaintiffs Mr N Bilinsky for defendant

Darley & Co for plaintiffs SOLICITORS : Henry David York for defendant

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

ASSOCIATE JUSTICE MACREADY

TUESDAY 19 MAY 2009

5683/08 ZAMOBAY PTY LIMITED and ANOR v BANK OF WESTERN AUSTRALIA LIMITED

JUDGMENT

1 HIS HONOUR: This is an application under section 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand dated 22 October 2008 claiming $175,028.95 served by the defendant bank on the plaintiff. The plaintiff seeks to assert an offsetting claim, and also to set aside the demand for the reason that it was not accompanied by an affidavit. Background 2 The plaintiff Company is a guarantor of the liabilities under two facilities with Bank West. One facility was provided to a company Debona Pty Limited and one to Frosso Coumanios. There were also personal guarantees given by three of the family, Frosso, John and Stanley Coumanios. There were three properties over which the Bank took security with cross-collateral security clauses. These were a commercial property owned by Debona Pty Limited at Burwood, a commercial property owned by Frosso at West Wyalong, and a residence owned by him at Clontarf. On 28 February 2006 Debona Pty Limited was wound up at the suit of the Australian Tax Office. On 11 October 2006 the Bank appointed receivers of the West Wyalong property and the Clontarf property. On 22 June 2007 the Bank appointed receivers of the Burwood property. 3 In December 2006 the Bank commenced proceedings in the Supreme Court seeking, inter alia, possession of the West Wyalong and Clontarf properties. 4 There were a number of skirmishes and eventually the matter was compromised by way of a deed dated 4 September 2007. That deed provided for judgment in terms of consent orders. It governed both loans, which is apparent from clause 7.1, and it is in these terms: "7 Acknowledgements about the outstanding amounts and consent to judgement on Frosso outstanding amounts