Nycon v Lane [2009] NSWSC 39

New South Wales Supreme Court

CITATION : Nycon v Lane [2009] NSWSC 39

HEARING DATE(S) : 10/02/2009

JUDGMENT DATE : 11 February 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 11 February 2009

DECISION : Paragraph 46

CATCHWORDS : Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. Held there was a genuine dispute and demand set aside.

PARTIES : Nycon Custodian Pty Ltd v Lane Cove Council

FILE NUMBER(S) : SC 5105/2008

COUNSEL : Mr MA Friedgut for plaintiff Mr S. Johnson for defendant

SOLICITORS : Levitt Robinson for plaintiff Sally Nash & Co for defendant

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

MACREADY AsJ

WEDNESDAY 11 FEBRUARY 2009

5105/09 NYCON CUSTODIAN PTY LIMITED v LANE COVE COUNCIL

JUDGMENT

1 HIS HONOUR: This is the hearing of an application under section 459G of the Corporations Act seeking to set aside a statutory demand served by the defendant on the plaintiff. The demand was dated 15 September 2008 and was for the sum of $89,790.95. The description of the debt in the schedule was as follows: "SCHEDULE

Description of the Debt Amount of the debt

Monies had and received by the company which it has failed to repay to the creditor being parking meter collections

Total parking meter collections by the company on behalf of the creditor $157,787.25

Less paid by the company to the creditor $67,996.30

Total monies had and received and unpaid by the company to the creditor $89,790.95 2 The demand was supported by an affidavit sworn by Mr Wrightson of the defendant Council on 15 September 2008. That affidavit was attached to the initial affidavit in support of the application and was not limited in terms of its evidentiary purpose. Under section 60 of the Evidence Act it is thus admissible for all purposes. (See Regina v Singh-Bal (1997) 92 A Crim R 399 at 405.) 3 There is a problem with the affidavit in terms of it dealing with the identity of the contracting party as it is inconsistent with a later affidavit sworn by the same deponent. However, it is useful in describing the process. Paragraphs 6 to 9 are in the following terms: "6. The Creditor maintains electronic data information as to moneys which have been paid into each parking meter. When a coin is inserted into a parking meter, an electronic message is sent to the Creditor detailing the amount of money received into the parking meter on the issue of the parking meter ticket. That amount is reconciled with the moneys collected by the Debtor. 7. The Debtor collected monies from the Creditor's parking meters but failed to account to the Creditor for all of the moneys which had been paid into the parking meters and which it collected. The total of moneys paid into the parking meters reconciled from the Creditor's records being meter tickets issued from the meter ticketing report is $157,787.25. 8. The total amount paid by the Debtor to the Creditor is $67,996 30.