In the matter of Pierotti & Fanani Pty Ltd as trustee for the Caesars Properties Unit Trust; In the matter of Etruscan Properties Ltd as trustee for the Etruscan Properties Unit Trust; In the matter of Etruscan Properties Pty Ltd as trustee for the Etruscan Properties Unit Trust; In the matter of Lucca Enterprises Pty Ltd as trustee for the Lucca Unit Trust [2018] NSWSC 457

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Pierotti & Fanani Pty Ltd as trustee for the Caesars Properties Unit Trust; In the matter of Etruscan Properties Ltd as trustee for the Etruscan Properties Unit Trust; In the matter of Etruscan Properties Pty Ltd as trustee for the Etruscan Properties Unit Trust; In the matter of Lucca Enterprises Pty Ltd as trustee for the Lucca Unit Trust [2018] NSWSC 457 Hearing dates: 19 and 20 March 2018 Decision date: 13 April 2018 Jurisdiction: Equity - Corporations List Before: Black J Decision: In each matter, the Defendant pay the Plaintiff's costs of the application to set aside the creditor's statutory demand, as agreed or as assessed. The Defendant in each matter pay half of the Plaintiff's costs of the costs application, as agreed or as assessed, with liberty to the parties to apply within 7 days to vary that order. Catchwords: COSTS – statutory demand – where creditor's statutory demands were set aside by consent – where the creditor ought to have been aware of the likelihood of a genuine dispute as to whether the debts were payable on demand – where the debtor did not clearly articulate the basis on which the demands would be disputed in their correspondence prior to the issue of the demands – whether there was a reasonable basis for the issue of the statutory demands – abuse of process – whether creditor's statutory demands were issued in order to exert improper commercial pressure in the context of ongoing negotiations. Legislation Cited: - Corporations Act 2001 (Cth) ss 459G, 459H Cases Cited: - Ayrton Investments Pty Ltd v Andrlik [2000] ACTSC 55 - BGC Contracting Pty Ltd v Whitsunday Crushers Pty Ltd [2004] WASC 209 - Canon Australia Pty Ltd v Yong Bros Pty Ltd [2009] NSWSC 1245 - Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85; (2009) 71 ACSR 602 - Dynamics Co Pty Ltd v G and M Nicholas Pty Ltd [2012] NSWSC 206 - Felkro Nominees Pty Ltd v Austissue Pty Ltd [1993] FCA 455; (1993) 11 ACSR 607 - Jem Number Four Pty Ltd v Southern Cross Construction (NSW) Pty Ltd [2006] NSWSC 602 - Ranford Gold Mines Pty Ltd v P & H Earth Moving Pty Ltd [1994] NTSC 49 - Re Halal Meats Pty Ltd [2015] NSWSC 2041 - Re Zarzar Pty Ltd [2017] NSWSC 9 - Soudan Lane Pty Ltd v Glen Bradshaw t/as Pacific Coast Digital [2007] NSWSC 772 - Specialty Fashion Group Ltd v Global Red Australia Pty Ltd [2012] NSWSC 256 - Yoogalu Pty Ltd v Intentia Australia Pty Ltd [2006] NSWSC 278 Category: Procedural and other rulings Parties: Proceedings 2017/392791 Pierotti & Fanani Pty Ltd as trustee for the Caesars Property Unit Trust (Plaintiff) Ferruccino Pty Ltd as trustee for the Ferruccino Family Trust (Defendant) Proceedings 2017/392794 Etruscan Properties Pty Ltd as trustee for the Etruscan Properties Unit Trust (Plaintiff) Lisa Taliano (Defendant) Proceedings 2017/392797 Etruscan Properties Pty Ltd as trustee for the Etruscan Properties Unit Trust (Plaintiff) Ferruccino Pty Ltd as trustee for the Ferruccino Family Trust (Defendant) Proceedings 2017/392801 Lucca Enterprises Pty Ltd as trustee for the Lucca Unit Trust (Plaintiff) M&L Taliano Pty Ltd as trustee for the M&L Taliano Family Trust (defendant) Representation: Counsel: B F Katekar (Plaintiff – all proceedings) D R Stack (Defendant – all proceedings)