Remly v Annis-Brown [2010] NSWSC 397

New South Wales Supreme Court

CITATION : Remly v Annis-Brown [2010] NSWSC 397

HEARING DATE(S) : 04/05/2010 (Further submissions received 08/7/2010)

JUDGMENT DATE : 19 August 2010

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : I dismiss the proceedings with costs.

CATCHWORDS : Corporations Law. Application under s 459G to set aside statutory demand. Alleged an implied term that would allow a set off by direction of plaintiff of an off setting claim. Held no such implied term. Application dismissed.

PARTIES : Remly Pty Limited v Wayne Vincent Annis-Brown trading as Lincoln Smith & Company

FILE NUMBER(S) : SC 2010/55270

COUNSEL : Mr RW Tregenza for plaintiff Mr F Assaf for defendant

SOLICITORS : Holman Webb for plaintiff Lincoln Smith & Company for defendant

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

Associate Justice Macready

Thursday 19 August 2010

2010/55270 REMLY PTY LIMITED v WAYNE VINCENT ANNIS-BROWN Trading as LINCOLN SMITH & COMPANY JUDGMENT 1 HIS HONOUR: This is an application to set aside a statutory demand served by the defendant on the plaintiff. The demand is dated 9 February 2010 in the sum of $98,460.53. The schedule to the demand discloses three amounts which flow from Certificates of Determination of Costs of Review. The debts are for legal costs due to the defendant's solicitor by the plaintiff company Remly Pty Limited and two of the company's directors Mr and Mrs Iacullo. 2 The relevant certificates were filed in the Supreme Court pursuant to s 378(3) and 379(6) of the Legal Profession Act 2004 and they are taken to be a judgment of the Supreme Court. There has been no appeal in respect of the determinations. Plaintiff's claim 3 The plaintiff raises an offsetting claim which is said has accrued to Mr and Mrs Iacullo who are shareholders in the plaintiff company. The offsetting claim is in respect of negligent advice in respect of a rent review in which Mr and Mrs Iacullo were involved in property which they owned. They were the landlord and during the course of the lease they sought advice as to what steps they should take to implement the rent review provisions. They allege that the advice which was given did not take account of clause 5.14 of the lease which required the parties, once they had agreed on the new rent review, to sign a document in writing. Apart from some unsubstantiated assertions of amounts the evidence suggests that the loss over the relevant period of the lease amounted to $72,600. 4 It will be appreciated that the claim for negligence against the solicitors is a claim which resides in Mr and Mrs Iacullo and not the plaintiff company, Remly Pty Limited. Under s 459H(1)(b) of the Corporations Act 2001 it is only the company who may raise an offsetting claim. Section 459H is as follows: