In the matter of Fishbank Development Corporation Pty Limited [2016] NSWSC 949

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Fishbank Development Corporation Pty Limited [2016] NSWSC 949 Hearing dates: 9 June 2016 Decision date: 09 June 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: Order that the creditor's statutory demand dated 3 February 2016 be set aside. The Defendant to pay the Plaintiff's costs of the application to set aside the creditor's statutory demand on an indemnity basis, as agreed or as assessed. Catchwords: CORPORATIONS — Winding up — Application to set aside creditor's statutory demand under s 459H(1)(a) of the Corporations Act 2001 (Cth) — where plaintiff contended that there was a variation of its contract with the defendant and that it had an estoppel case against the defendant to support its case that there was a genuine dispute as to the debt specified in the demand – whether genuine dispute as to existence or amount of debt is established.

PROCEDURE — Costs — Order sought for costs on indemnity basis — where plaintiff was successful in application to set aside creditor's statutory demand – whether unreasonable conduct of defendant in respect of the creditor's statutory demand warrants indemnity costs order. Legislation Cited: - Corporations Act 2001 (Cth), ss 459H, 459J Cases Cited: - Britten-Norman Pty Ltd v Analysis and Technology Australia Pty Ltd [2013] NSWCA 344; (2013) 85 NSWLR 601 - CGI Information Systems and Management Consultants Pty Ltd v APRA Consulting Pty Ltd [2003] NSWSC 728; (2003) 47 ACSR 100 - Infratel Networks Pty Ltd v Gundry's Telco & Rigging Pty Ltd [2012] NSWCA 365; (2012) 92 ACSR 27 - Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290 - Re Pages Sales Pty Ltd [2016] NSWSC 616 - Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681; (1997) 76 FCR 452 - United Capital Properties Pty Ltd v Handbury Asset Management Pty Ltd [2011] FCA 1075 Category: Principal judgment Parties: Fishbank Development Corporation (Plaintiff) Heartland Productions Pty Limited (Defendant) Representation: Counsel: R P V Carey (Plaintiff) E Tringali (Defendant)