In the Matter of Nahas Pty Ltd [2012] NSWSC 1295

Supreme Court New South Wales

Medium Neutral Citation: In the Matter of Nahas Pty Ltd [2012] NSWSC 1295 Hearing dates: 19 October 2012 Decision date: 19 October 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Originating process dismissed with costs Catchwords: CORPORATIONS - creditor's statutory demand - whether genuine dispute exists - where court is required to determine a question of contractual construction Legislation Cited: (Cth) Corporations Act 2001, s 459G, s 459H, s 459J Cases Cited: Delnorth Proprietary Limited v State Bank of New South Wales (1995) 17 ASCR 379 BBX Holdings Ltd v American Home Assurance [2007] NSWSC 549 BMDI Tuta Health Care Pty Ltd v CME Medical Australia Ltd [2011] NSWSC 50 In the Matter of Harbour Radio Pty Limited [2012] NSWSC 1290 Category: Principal judgment Parties: Nahas Pty Ltd - Plaintiff Advanced Foundation Solutions (Aust) Pty Limited - Defendant Representation: J T Johnson - Plaintiff S Golledge - Defendant Landerer & Company - Plaintiff Colin Biggers & Paisley - Defendant File Number(s): 12/254563

Judgment (ex tempore) 1HIS HONOUR: By originating process filed on 15 August 2012, the plaintiff Nahas Pty Limited ("Nahas") seeks an order pursuant to (Cth) Corporations Act 2001, s 459G, s 459H and/or s 459J, setting aside a creditor's statutory demand dated 25 July 2012 and served on it by the defendant Advance Foundation Solutions (Aust) Pty Limited ("AFS"), on or about that date. No question has been raised as to the timeliness or adequacy of the originating process. 2The creditor's statutory demand claimed an amount of $250,700.40, described in the schedule as follows: Amount due and payable as at 30 April 2012 under a Deed of Guarantee between the creditor and the debtor executed on 30 March 2012. Under the Deed of Guarantee, the debtor agreed to indemnify Nahas Construction Pty Limited (Nahas Construction) against all liabilities suffered or incurred by reason of any default on the part of Nahas Construction in the performance of a Deed of Settlement and a Deed of Variation between the creditor and Nahas Construction entered into on 27 January 2012 and 30 March 2012 respectively. Nahas Construction has failed to pay the amount of $75,000.00 on or before 30 April 2012 as required by the Deed of Settlement and the Deed of Variation. Further, Nahas Construction has failed to pay the amount of $250,700.40 which became due and payable upon the failure to pay $75,000.00 on or before 30 April 2012. The creditor gave notice of its intention to exercise its right of indemnity provided under the Deed of Guarantee on 2 May 2012. 3On or about 27 January 2012, Nahas Construction Proprietary Limited ("Nahas Construction") and AFS entered into a deed of settlement and release ("the Deed of Settlement"), by which AFS acknowledged that that document comprised the final account statement for a certain subcontract between Nahas Construction and AFS, and Nahas Construction agreed to pay the outstanding balance in the following terms: 6. Payment Plan a) The agreed balance outstanding will be paid as per the below payment plan (failing which the whole of the then unpaid agreed balance outstanding shall become immediately due and payable): Payment No. Payment Amount (in GST) Payment Date Payment 1 $75,000.00 12/02/2012 Payment 2 $75,000.00 27/03/2012 Payment 3 $75,000.00 24/04/2012 Payment 4 $50,000.00 24/05/2012 Payment 5 $25,700.40 26/06/2012 Total $300,700.40