Select Foods v Gold Label Building Products and Services [2009] NSWSC 213

New South Wales Supreme Court

CITATION : Select Foods v Gold Label Building Products and Services [2009] NSWSC 213

HEARING DATE(S) : 16 March 2009

JUDGMENT DATE : 16 March 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 16 March 2009

DECISION : 1. Make orders in accordance with paragraph 1 of the originating process; 2. order that the defendant pay the plaintiff's costs of the proceedings on the ordinary basis; 3. exhibits may be returned after 28 days

CATCHWORDS : CORPORATIONS – other matters – statutory demands – application to set aside creditor's statutory demand under s 459G of the Corporations Act 2001 (Cth) – non-appearance of defendant – no question of principle

LEGISLATION CITED : Corporations Act 2001 (Cth) Building and Construction Industry Security of Payment Act 1999 (NSW)

CATEGORY : Procedural and other rulings

CASES CITED : Macleay Nominees Pty Limited v Belle Property East Pty Limited [2001] NSWSC 743 Polaroid Australia Pty Limited v Minicomp Pty Ltd (1997) 16 ACLC 529

Select Foods Pty Ltd PARTIES : v Gold Label Building Products and Services Pty Ltd

FILE NUMBER(S) : SC 4745/08

COUNSEL : Plaintiff: J M White Defendant: Ms Keverian (solicitor)

SOLICITORS : Plaintiff: Kemp Strang Defendant: Adams & Partners Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

WHITE J

Monday, 16 March 2009

4745/08 Select Foods Pty Ltd v Gold Label Building Products and Services Pty Ltd JUDGMENT 1 HIS HONOUR: This is an application under s 459G of the Corporations Act 2001 (Cth) to set aside a creditor's statutory demand. The demand is dated 25 August 2008. The defendant demanded that the plaintiff pay the sum of $453,032.88 described a moneys due under a judgment of the District Court in proceedings number 3737/08 and entered on 14 August 2008. That judgment was entered pursuant to an adjudication certificate made under s 34 of the Building and Construction Industry Security of Payment Act 1999 (NSW). 2 The plaintiff and the defendant entered into a building contract for the construction of a warehouse and office complex in Birmingham Avenue, Villawood. The plaintiff claims that on 14 February 2008 it terminated the defendant's engagement as a builder under that contract. It says that it has thereafter engaged a project manager to manage the carrying out of works outstanding under that contract and to remedy what is said to be defective works. There is evidence that it has paid $468,998.38 for completion of what it describes as outstanding and defective works. 3 On 23 July 2008, the plaintiff commenced proceedings in the Technology and Construction List claiming, amongst other things, damages for breach of contract. It identified that the issues likely to arise included whether the defendant had failed to comply with the date for practical completion under the building contract; whether the defendant had failed to complete the works to the standard set out in the contract; whether the defendant had failed to correct any defects or finalise any incomplete work; whether the defendant had failed to comply with the revised date for practical completion of the contract; and the quantum of the loss and damage suffered by it as a result of the defendant's breach. By its response, the defendant accepted that all of these issues were issues that were likely to arise in those proceedings. 4 The evidence read on this application makes it quite clear that the plaintiff has a genuine claim for damages for breach of contract. That claim has been quantified in an amount greater than the debt which is the subject of the statutory demand (Macleay Nominees Pty Limited v Belle Property East Pty Limited [2001] NSWSC 743 at [28]). 5 The plaintiff has also brought proceedings to set aside the adjudication upon which the judgment debt was obtained. It has not obtained an order to set aside the judgment debt and I am told that the judgment debt has not been stayed. It is unnecessary to consider whether that application would itself be a sufficient ground for setting aside the statutory demand pursuant to s 459J(1)(b). I am satisfied that the plaintiff has an offsetting claim within the meaning of s 459H which exceeds the amount of debt in the statutory demand. 6 I should note that there has been no appearance of the defendant this morning. The proceeding was last before the Court on 6 February 2009 when the Registrar made orders by consent extending the time for service of evidence. It appears that the defendant was not represented on that occasion, but on 6 February 2009 the solicitors for the plaintiff informed the solicitors for the defendant of the orders made by the Registrar. They also informed the solicitors for the defendant that the Registrar on that occasion said that the matter would be referred to the Corporations Judge's list on 16 March 2009 for hearing. 7 The matter has been called. There is no appearance for the defendant. I am satisfied that it is appropriate for the matter to be dealt with, notwithstanding the defendant's non-appearance. 8 For these reasons I make orders in accordance with paragraph 1 of the originating process. The plaintiff is entitled to an order for costs in the originating process. Costs are sought on an indemnity basis.