A.M. Retail Solutions Pty Limited v Hainbury Pty Limited [2008] NSWSC 926

New South Wales Supreme Court

CITATION : A.M. Retail Solutions Pty Limited v Hainbury Pty Limited [2008] NSWSC 926

HEARING DATE(S) : 18 August 2008 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 18 August 2008

DECISION : Statutory demand set aside. The defendant to pay the plaintiff's costs.

CATCHWORDS : CORPORATIONS – creditor's statutory demand – application to set aside statutory demand under s 459G of the Corporations Act 2001 – claim for rent – plaintiff asserts entitlement to abatement – genuine dispute raised – demand set aside

LEGISLATION CITED : Uniform Civil Procedure Rules

CASES CITED : Sewmail (Australia) Pty Ltd v Booby Traps Pty Ltd (1997) 23 ACSR 339 Solarite Air Conditioning Pty Limited v York International Australia Pty Limited [2002] NSWSC 411

PARTIES : A.M. Retail Solutions Pty Limited (ACN 103 251 038) Hainbury Pty Limited (ACN 003 811 685)

FILE NUMBER(S) : SC 3176/2008

COUNSEL : A. Combe (Plaintiff) A.D Crossland (Defendant)

SOLICITORS : Jackson Lalic Lawyers (Plaintiff) Turks Legal (Defendant)

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HAMMERSCHLAG J

18 AUGUST 2008

3176/2008 A M RETAIL SOLUTIONS PTY LIMITED -V- HAINBURY PTY LIMITED EX TEMPORE JUDGMENT 1 HIS HONOUR: By statutory demand dated 22 May 2008 the defendant demanded from the plaintiff three amounts for rental in respect of premises known as the Fruit Barn. The amount claimed included $12,834.31 for rent for the month of March 2008 and two amounts of $12,175.79 for rent due on 1 April 2008 and 1 May 2008 respectively as well as interest. The total amount claimed was $37,443.65. 2 On 16 May 2008 the defendant obtained default judgment against the plaintiff in the Campbelltown Magistrate's Court for the amount of $12,834.31 and the demand relied on the judgment in respect of it. That judgment has however been set aside. 3 By Originating Process dated 10 June 2008 the plaintiff moved to set the demand aside on the basis that there was a bona fide dispute arising out of circumstances deposed to in the affidavit of Mark Magar of 10 June 2008. Mr Magar describes himself as a loss prevention officer of the plaintiff. 4 Mr Combe of counsel for the defendant objected to the admission of the affidavit because Mr Magar is not on the face of it, nor on the face of the material which he tendered through an affidavit of Mr Douglas Richard George of 8 August 2008, one of the persons described in Uniform Civil Procedure Rules, r 35.3(1)(b), that is a member or officer of the plaintiff corporation. 5 However, the deponent does not depose to matters which are relevantly the subject of authority but rather to factual matters concerning the destruction of the premises by storm and heavy rain damage in early 2007. I admitted that evidence provisionally and then unconditionally. 6 Mr Magar says that in early 2007 the premises were partially destroyed by storm and heavy rain damage. Apart from considerable damage to the premises, there was damage to the plaintiff's stock and equipment on the premises. He says further that by about February 2008 the lessor had failed to repair the storm and heavy rain damage which by that time 50 per cent of the premise were unusable. It was necessary to close the premises during periods of rain because of the leaking roof and water damage to the premises. 7 He also says that there was flood and rain damage to damaged stock in the approximate sum of $15,000 and equipment in the approximate sum of $12,000. Those latter amounts which are intended presumably to be the basis of a cross-claim or countervailing claim. However the plaintiff provides insufficient information in accordance with the authorities to enable me to assess them and I shall accordingly disregard them: see Sewmail (Australia) Pty Ltd v Booby Traps Pty Ltd (1997) 23 ACSR 339 at 343. 8 Clause 4.1 of the lease (which is in evidence) provides that: