New South Wales Supreme Court CITATION : Thai AMX Mixer Repairs Pty Ltd v Accurate Industrial Machining Pty Ltd [2009] NSWSC 469 HEARING DATE(S) : 29/05/09 JUDGMENT DATE : 29 May 2009 JURISDICTION : Equity Division Corporations List JUDGMENT OF : Barrett J EX TEMPORE JUDGMENT DATE : 29 May 2009 DECISION : Statutory demand set aside. CATCHWORDS : CORPORATIONS - winding up - statutory demand - application for order setting aside - genuine dispute - offsetting claims - no matter of principle LEGISLATION CITED : Corporations Act 2001 (Cth) ss 9, 459G, 459H(3) Service and Execution of Process Act 1992 (Cth) CATEGORY : Principal judgment PARTIES : Thai AMX Mixer Repairs Pty Ltd - Plaintiff Accurate Industrial Machining Pty Ltd - Defendant FILE NUMBER(S) : SC 6312/08 COUNSEL : Mr M A Bradford - Plaintiff No appearance - Defendant SOLICITORS : Stephen Miller Solicitor - Plaintiff No appearance - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST BARRETT J FRIDAY 29 MAY 2009 6312/08 THAI AMX MIXER REPAIRS PTY LIMITED v ACCURATE INDUSTRIAL MACHINING PTY LIMITED JUDGMENT 1 This is an application by Thai AMX Mixer Repairs Pty Ltd under s 459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on it by Accurate Industrial Machining Pty Ltd. 2 There has been no appearance by the defendant. It is clear, however, that the defendant was duly served (including with a notice under the Service and Execution of Process Act 1992 (Cth)) and that both the defendant and its solicitor were notified of the allocated hearing date, being today. 3 There was accordingly no impediment to the hearing of the application, notwithstanding the defendant's absence. 4 The debt or alleged debt to which the statutory demand relates is in the sum of $8,338 and is for the manufacture and supply of 20 steel rollers at $379 each, plus GST. 5 The evidence before the court is that contained in the affidavit of Anna Thai filed in support of the originating process. She is the accounts manager for the plaintiff which, she says, is a family company the directors of which are her mother and father. The plaintiff's business includes repairing concrete-mixer trucks. Rollers of the kind supplied by the defendant are used in such machinery and are supplied and installed by the plaintiff in the course of its repair business. 6 The plaintiff accepts that it ordered 20 rollers from the defendant in July 2008 for use in its repair business and that these were delivered on or about 30 July 2008. The plaintiff says, however, that the defendant had quoted a price of $240 each for ten rollers and $270 each for the other ten, whereas the charge made was $379 per roller. The plaintiff says, and I accept, that there is therefore a genuine dispute as to the difference of $2,728. 7 The plaintiff also asserts off-setting claims. Ms Thai's affidavit refers to a history of failure of rollers supplied by the defendant necessitating unexpected work by the plaintiff to effect or arrange repairs for its own customers in whose machinery the failed rollers have been installed. One of the plaintiff's customers had to call in a third party repairer when a roller failed outside business hours. That customer sent the plaintiff the third party's bill for $1,628. The plaintiff considers itself entitled to recover this from the defendant. 8 There are 11 other rollers that failed within a short time after being installed, being four light-weight rollers and seven maxi rollers. The plaintiff considers itself entitled to recover the costs of these defective rollers from the defendant, being $1,452 for four light-weight rollers at $330 each, and $1,848 for seven maxi rollers at $240 each. 9 I am satisfied that, on the plaintiff's evidence, it has a genuine and fairly arguable claim against the defendant for the sums of $1,628, $1,452 and $1,848 to which I have referred. These are claims based on lack of merchantable quality or lack of fitness for a stated or known purpose or claims on both bases. 10 When the amount of $2,728 genuinely in dispute regarding the 20 rollers supplied in July 2008 is added to the three offsetting claims I have just mentioned, the total is $7,656. When this is subtracted from the amount of $8,338 claimed in the statutory demand, there remains a sum of $682. Since this is less than the "statutory minimum" as defined by s 9 ($2,000), the result compelled by s 459H(3) is that the statutory demand be set aside. 11 The orders of the Court are as follows: 1. Order that the statutory demand dated 28 November 2008 served on the plaintiff by the defendant be set aside. 2. Order that the defendant pay the plaintiff's costs of the proceedings. 12 The exhibit may be returned. ********** 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.