New South Wales Supreme Court CITATION : Seana Constructions Pty Ltd v Bright Construction Group Pty Ltd [2008] NSWSC 920 HEARING DATE(S) : 18 August 2008 JUDGMENT OF : Hammerschlag J EX TEMPORE JUDGMENT DATE : 18 August 2008 DECISION : Statutory Demand varied. Defendant to pay the plaintiff's costs of the Originating Process. CATCHWORDS : CORPORATIONS – creditor's statutory demand – application to set aside statutory demand made under s 459G of the Corporations Act 2001 (Cth) – plaintiff alleges it is entitled to withhold payment because of an offsetting claim and because defendant failed to provide written statements as required by s 127(5) of the Industrial Relations Act 1996 (NSW) and s 175B(7) of the Workers Compensation Act 1987 – insufficient evidence led to assess extent of offsetting claim but written statements made available at hearing – accordingly no defence available at that point – statutory demand varied to extend payment date LEGISLATION CITED : Industrial Relations Act 1996 (NSW) Workers Compensation Act 1987 (NSW) CASES CITED : Sewmail (Australia) Pty Ltd v Booby Traps Pty Ltd (1997) 23 ACSR 339 PARTIES : Seana Constructions Pty Ltd ACN 088 122 178 Bright Construction Group Pty Ltd ACN 121 677 683 FILE NUMBER(S) : SC 3550/2008 COUNSEL : D.P. O'Connor (Plaintiff) C. Moschoudis (Defendant) SOLICITORS : Lou Baker and Associates (Plaintiff) Luminous Legal (Defendant) - 3 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST HAMMERSCHLAG J 18 AUGUST 2008 3550/2008 SEANA CONSTRUCTIONS PTY LTD -V- BRIGHT CONSTRUCTION GROUP EX TEMPORE JUDGMENT 1 HIS HONOUR: The plaintiff applies to set aside a statutory demand from the defendant dated 10 June 2008, which claims amounts which the defendant says the plaintiff owed it for work done at a hotel at Brabham Drive Eastern Creek. 2 The plaintiff's application raised two matters: firstly an offsetting claim arising out of allegedly defective work done by the defendant; and secondly a contention that it is entitled to withhold payment because the defendant has not provided certificates in accordance with s 127(5) of the Industrial Relations Act 1996 (NSW) or s 175B(7) of the Workers Compensation Act 1987 (NSW). Each of those enactments provides that a principal contractor may withhold payment due to a subcontractor unless the subcontractor provides a written statement that all remuneration payable to relevant employees for work under the contract during the relevant period has been paid. 3 So far as the first issue raised is concerned the plaintiff provided no detail which might enable the Court to assess, even on the barest basis, the extent of the alleged offsetting claim and accordingly could not succeed: Sewmail (Australia) Pty Ltd v Booby Traps Pty Ltd (1997) 23 ACSR 339 at 343. 4 So far as the second issue is concerned the defendant denies that the parties were in the relationship of principal contractor and subcontractor but there is sufficient material before the Court to meet the low threshold required in these type of proceedings to conclude that there is a genuine dispute whether the parties were in such a relationship. 5 However Mr Moschoudis of counsel for the defendant informed me from the Bar table (and no issue with the statement was taken by the plaintiff) that the requisite written statements under those sections were available in Court. 6 Accordingly whereas there once was a genuine dispute, there is now no longer one. 7 The appropriate course in the circumstances is to vary the statutory demand by extending the date for payment. Neither counsel wished to be heard against that course. 8 In the circumstances, the order of the Court shall be: the statutory demand is varied so that it requires payment within twenty-one days of 18 August 2008, that is by 9 September 2008. The demand shall accordingly read: The creditor requires the company by 9 September 2008 to pay to the creditor the total amount of the debts or to secure or compound for the total amount of the debts to the creditor's reasonable satisfaction, the amount of $65,936.51. 9 Until the certificates were proffered the plaintiff's application was entitled to succeed. 10 Accordingly the defendant is to pay the plaintiff's costs of the Originating Process. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.