In the matter of Powerpark Systems Pty Ltd [2018] NSWSC 793

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Powerpark Systems Pty Ltd [2018] NSWSC 793 Hearing dates: 17 May 2018 Decision date: 31 May 2018 Before: Gleeson JA Decision: (1) Order that the statutory demand dated 25 October 2017 served on the plaintiff by the defendant be varied by reducing the amount thereof to $21,483.14;

(2) Declare that the statutory demand is to have had effect as so varied as and from when the statutory demand was served on the plaintiff;

(3) Subject to order (4), there be no order as to costs with the intent that each party bear its own costs;

(4) Stay the operation of order (3) for a period of 14 days, or until the Court determines any application by a party for a different costs order as referred to in (5) below;

(5) Direct that if either party seeks a different costs order, that party is to file and serve written submissions within 7 days, and the other party is to file any written submissions in response within a further 7 days. Written submissions are not to exceed two pages. Direct that any such application be determined on the papers. Catchwords: CORPORATIONS – statutory demand – application to set aside creditor's statutory demand – demand based on judgment arising upon filing of adjudication certificate under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether genuine dispute as to the existence of the debt – whether debt is subject to offsetting claim – whether "some other reason" to set aside demand – whether foreshadowed curial proceedings to quash the adjudicator's determination for jurisdictional error of law amounts to a "genuine dispute" or "some other reason" to set aside demand Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 7, 15, 23, 24, 25 Corporations Act 2001 (Cth), ss 459F, 459G, 459H, 459I, 459J, 459M Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.10 Cases Cited: Aldoga Aluminium Pty Ltd v De Silva Starr Pty Ltd [2005] NSWSC 284 Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344 Brodyn Pty Ltd (t/a Time Cost & Quality) v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91 Elm Financial Services Pty Ltd v MacDougal [2004] NSWSC 560 Eumina Investments Pty Ltd v Westpac Banking Corporation (1998) 84 FCR 454 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Jesseron Holdings Pty Ltd v Middle East Trading Consultants Pty Ltd (1994) 13 ACSR 455 Kerslake Superannuation Pty Ltd v C&L Building Pty Ltd [2010] NSWSC 424 Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24; (2005) 53 ACSR 229 Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 Portrait Express (Sales) Pty Ltd v Kodak (A'asia) Pty Ltd (1996) 20 ACSR 746 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 351 ALR 225 Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd [2011] NSWSC 1031 Re Douglas Aerospace Pty Ltd [2015] NSWSC 167 Reiby Street Apartments Pty Ltd v Winterton Constructions Pty Ltd [2006] NSWSC 375 Re Morris Catering (Aust) Pty Ltd (1993) 11 ACSR 601 Re J Group Constructions Pty Ltd [2015] NSWSC 1607 Transgrid v Siemens Ltd (2004) 61 NSWLR 521; [2004] NSWCA 395 United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 Category: Principal judgment Parties: Powerpark Systems Pty Ltd (Applicant) Shoemark Electrical Pty Ltd (Respondent) Representation: Counsel: Ms K Madgwick (Applicant) Mr M Forgacs (Respondent)