W & K Holdings v Mayo [2009] NSWSC 860

New South Wales Supreme Court

CITATION : W & K Holdings v Mayo [2009] NSWSC 860

HEARING DATE(S) : 30/07/09

JUDGMENT DATE : 30 July 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 30 July 2009

DECISION : 1. Order that the statutory demand dated 18 March 2009 served by the defendant upon the plaintiff be set aside; 2. order that such additional costs be assessed on the indemnity basis. Otherwise, the order will be that the defendant pay the plaintiff's costs of the proceedings; 3. order that the interlocutory process filed on 24 April 2009 be dismissed.

CATCHWORDS : CORPORATIONS - statutory demand - application to set aside statutory demand - genuine dispute as to existence of debt claimed

LEGISLATION CITED : Corporations Act 2001 (Cth) Trade Practices Act 1974 (Cth)

CATEGORY : Procedural and other rulings

Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; 12 ACLC 669 CASES CITED : Hansmar Investments Pty Ltd v Perpetual Trustee Company Ltd [2007] NSWSC 103 Petelin v Cullen (1975) 132 CLR 355 English and Scottish Mercantile Investments Company Ltd v Brunton [1892] 2 QB 700

W & K Holdings Pty Ltd PARTIES : v Laureen Margaret Mayo t/as Mayo Spirit

FILE NUMBER(S) : SC 2266/09

COUNSEL : Plaintiff: D A Allen Defendant: In person

SOLICITORS : Plaintiff: Catalyst Legal Defendant: n/a

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

WHITE J

Thursday, 30 July 2009

2266/09 W & K Holdings Pty Ltd v Laureen Margaret Mayo t/as Mayo Spirit JUDGMENT 1 HIS HONOUR: This is an application to set aside a statutory demand dated 18 March 2009. Although the originating process makes reference to s 459J of the Corporations Act 2001 (Cth), the ground upon which the application was propounded, is that there is a genuine dispute as to the existence of the debt to which the demand relates (s 459H(1)). 2 In Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; 12 ACLC 669, McLelland J (as his Honour then was) said that the expression "a genuine dispute" in this context: " ... connotes a plausible contention requiring investigation, and raises much the same sort of considerations as the 'serious question to be tried' criterion which arises on an application for an interlocutory injunction or for the extension or removal of a caveat. This does not mean that the court must accept uncritically as giving rise to a genuine dispute, every statement in an affidavit 'however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be' not having 'sufficient prima facie plausibility to merit further investigation as to [its] truth' (cf Eng Mee Yong v Letchumanan [1980] AC 331 at 341), or 'a patently feeble legal argument or an assertion of facts unsupported by evidence': cf South Australia v Wall (1980) 24 SASR 189 at 194.