SNL Group Pty Limited v CMA Corporation Limited and Anor [2011] NSWSC 464

Supreme Court New South Wales

Medium Neutral Citation: SNL Group Pty Limited v CMA Corporation Limited and Anor [2011] NSWSC 464 Hearing dates: 7 and 8 April 2011 Decision date: 20 May 2011 Jurisdiction: Equity Division Before: Sackar J Decision: I am therefore satisfied that the Plaintiff has made out its claim for relief. I propose to make the declarations in accordance with the statement of claim as follows: Declaration that the plaintiff was not, on 8 April 2009 or any subsequent occasion, indebted to the first defendant in the sum of US$525,888.38, or any sum; Declaration that the plaintiff was not, on 8 April 2009 or any subsequent occasion, indebted to the second defendant in the sum of US$525,888.38, or any sum; Order that the first defendant and the second defendant repay to the plaintiff any money paid by it to either of them in respect of the debt asserted in the statutory demand dated 8 April 2009 issued by the first defendant or the plaintiff under section 459E(2)(e) of the Corporations Act. Order that the first defendant and the second defendant pay interest to the plaintiff on any money paid by the plaintiff as set out in Order 3. Order that the defendants' pay the plaintiff's costs of these proceedings. Catchwords: APPROPRIATION - Circumstances in which appropriation of payment to discharge debt ought to be found - Relationship between debtor and creditor - Communication of intention to appropriate payment - Appropriation once made is irreversible CONTRACT - Whether contract made to alter appropriation can be considered valid and binding - Whether appropriation once made can be reversed through contractual negotiations - Consideration required to reverse effect of previously discharged debt through contract - Requirement of additional terms in contract providing fresh consideration for reversal of previously discharged debt Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: The Nominal Defendant v Gabriel & Anor [2007] NSWCA 52 Simson v Ingham (1823) 2 B&C 65 Penny v Cole (1602) 5 Co. Rep. 117a Foakes v Beer [1884] 2 AC 605 Kelen v Vitamin Pty Ltd & Ors [2010] NSWC328 Amos v Monsour Pty Ltd [2010] FCA 741 Martech International Pty Ltd v Energy World Corporation Ltd [2006] FCA 1004 N Ray v Deputy Commissioner of Taxation [2005] FMCA 1893 Hennessey v Architectus Group Holdings Pty Ltd [2010] NSWC 1390 Vanbergen v St Edmunds Properties Ltd [1933] 2 KB 233 Fortune Food Manufacturer Pty Ltd v Young Trading Pty Ltd [2010] NSWC 407 Hewitt v Gardner [2009] NSWC 1107 Leeson v Leeson [1936] 2 KB 156 Category: Principal judgment Parties: SNL Group Pty Limited - Plaintiff CMA Corporation Limited - First Defendant CMA Peakmore Pte Ltd - Second Defendant Representation: Counsel C Harris SC; D McLure Solicitors Colin Biggers & Paisley - Plaintiff Norton White - Defendants File Number(s): 2010/259019