NSW Caselaw
New South Wales Supreme Court
CITATION : Sultana Investments Pty Ltd v Cellcom Pty Ltd [2009] NSWSC 392
HEARING DATE(S) : 13/05/09
JUDGMENT DATE : 15 May 2009
JURISDICTION : Equity Division Corporations List
JUDGMENT OF : Barrett J
DECISION : Order varying statutory demand by reducing amount thereof to $121,000
CATCHWORDS : CORPORATIONS - winding up in insolvency - statutory demand - application for order setting aside - alleged off-setting claim - foreshadowed claim under s 52 of Trade Practices Act - where claim relates to events fully litigated in Queensland proceedings - where those events most unlikely to support s 52 claim - virtual certainty in any event of successful Anshun defence - off-setting claim not established - alternative claim of defect in statutory demand or genuine dispute about existence of debt - demand claims fixed sum as debt arising from judgment for specified amount together with interest for specified period up to judgment - no specification of rate of interest - no means of ascertaining amount or rate of interest - principal judgment sum nevertheless clear - no defect in demand - but dispute as to amount of debt beyond principal judgment sum - statutory demand reduced to principal judgment sum.
Corporations Act 2001 (Cth), ss 459G, 459H(1)(a), 459H(1)(b), 459H(2), 459H(5), 459J(1)(a) LEGISLATION CITED : Property Agents and Motor Dealers Act 2000 (Qld) Supreme Court Act 1995 (Qld), s 47 Trade Practices Act 1974 (Cth), s 52
CATEGORY : Principal judgment
Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 Oakland Property Holdings Pty Ltd v J P Morgan Trust Australia Ltd [2008] NSWCA 360; (2008) 69 ACSR 485 CASES CITED : Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1993) 12 ACSR 341 Secretary Department of Family and Community Services v Mourilyan [2001] FCA 1583; (2001) 67 ALD 347 Sultana Investments Pty Ltd v Cellcom Pty Ltd [2008] QCA 357 Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 12 ACSR 381
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