Diddy Boy v Design [2009] NSWSC 14

New South Wales Supreme Court

CITATION : Diddy Boy v Design [2009] NSWSC 14

HEARING DATE(S) : 02/02/2009

JUDGMENT DATE : 4 February 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 4 February 2009

DECISION : Paragraph 47

CATCHWORDS : Corporations Law. Application to set aside statutory demand under s 459G of Corporations Act. Genuine dispute and off-setting claim alleged. No sufficient evidence to establish an off-setting claim. Genuine dispute as to denial of natural justice in adjudication under Building & Construction Industry Security of Payment Act 1999 fails as plaintiff had lost proceedings to set aside the adjudication.

PARTIES : Diddy Boy Pty Limited & David Hawkins v Design Environment Pty Limited

FILE NUMBER(S) : SC 4981/2008

COUNSEL : Mr JA Arnott for defendant

SOLICITORS : Mr David Hawlins appeared in person for plaintiff Chamberlains Law Firm Pty Ltd for defendant

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

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 4 FEBRUARY 2009 4981/08 DIDDY BOY PTY LIMITED v DESIGN ENVIRONMENT PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an application to set aside a statutory demand served by the defendant on the plaintiff dated 5 September 2008 for $43,803 33. The demand was in respect of an amount due under a Local Court judgement. The plaintiff company was doing a real estate development, and the defendant was an architectural company which provided some design work and drawings for a section 96 application to the local council by the plaintiff company. 2 The plaintiff originally commenced proceedings by a solicitor but that solicitor ceased to act. Mr Hawkins, the sole director of the plaintiff company, sought leave to appear for the company. I granted him that leave and as a term of that leave Mr Hawkins was joined as a plaintiff in the proceedings. 3 The plaintiff company seeks to assert: (a) a genuine dispute, and (b) an offsetting claim. 4 The genuine dispute concerns the adjudication process under the Building and Construction Security of Payments Act which occurred over the Christmas break in December 2007. It led to an adjudication which was subsequently registered as a judgement and was the foundation for the statutory demand. 5 Put simply, the plaintiff's case was that it was not given a fair go and in particular given no opportunity take part in the adjudication process. Mr Hawkins was the relevant person. He says he did not know of the adjudication action due to his absence on holidays during the building industry shutdown over the Christmas and early January periods. He said for this reason he could not participate in this process by making submissions. 6 The merits aspects which he says he was precluded from making submissions on were: