Windridge Farms (Holdings) Pty Ltd v BMG Environmental Group Pty Ltd [2009] NSWSC 506

New South Wales Supreme Court

CITATION : Windridge Farms (Holdings) Pty Ltd v BMG Environmental Group Pty Ltd [2009] NSWSC 506

HEARING DATE(S) : 6 May 2009 JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 7 May 2009

DECISION : Amount specified in statutory demand varied to $4,582. Demand to have effect as so varied as from when demand served on plaintiff. Defendant to pay plaintiff's costs of the proceeding.

CATCHWORDS : CORPORATIONS - External administration – winding up – winding up in insolvency - application to set aside a creditor's statutory demand for $55,000 - dispute as to amount of debt owing – offsetting claim - defendant concedes except as to $4,582 from an initial claim of $54,597 - no reasonable dispute as to balance – statutory demand varied to $4,582

LEGISLATION CITED : (CTH) Corporations Act 2001 s 459H(4)

CATEGORY : Principal judgment

PARTIES : Windridge Farms (Holdings) Pty Ltd (plaintiff) BMG Environmental Group Pty Ltd (defendant)

FILE NUMBER(S) : SC 1280/09

COUNSEL : Mr Barrett (plaintiff) Mr Holmes (defendant)

SOLICITORS : Gordon Garling Moffitt (plaintiff) Mark Ireland Lawyers (defendant)

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

BRERETON J

Thursday 7 May 2009

1280/09 Windridge Farms (Holdings) Pty Ltd v BMG Environmental Group Pty Ltd JUDGMENT (ex tempore) 1 HIS HONOUR: By originating process filed on 29 January 2009, the plaintiff Windridge Farms (Holdings) Pty Ltd claims an order setting aside a creditor's statutory demand served on it by the defendant BMG Environmental Group Pty Limited on 9 January 2009 for an alleged debt of $54,597.54 described as: Running balance account deficit debt as at 23 June 2008 in respect of amount due for invoices issued prior to that date as set out in Annexure A less payments made as set out in Annexure B, being a debt due and payable by the company pursuant to an agreement for supply of product. 2 The supporting affidavit of Sally Walker sworn 27 January 2009 identified as the grounds of the application a dispute as to the amount of the debt claimed in the statutory demand (paragraph 2 (i)), and an offsetting claim for an amount greater than the debt claimed (paragraph 2 (ii)). For the purposes of the present application, the defendant practically concedes that there is a dispute except as to $4,582.31 of the debt claimed. In doing so, and for present purposes only it apparently accepts that goods delivered after 1 November 2007 were at least arguably for the account of a different entity Windridge Farms Pty Limited, which I shall call the "new company" and which apparently took over the business formerly conducted by the plaintiff company on or about that date.