Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd

(2019) 99 NSWLR 397; [2019] NSWCA 60

NSW Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Creditor's statutory demand
3. › Application to set aside statutory demand
4. › Offsetting claim
5. › Whether offsetting claim 'genuine' within meaning of s 459H(5)
6. › Whether claim manufactured in response to statutory demand
7. › Corporations Act 2001 (Cth), ss 459G, 459H
1. Corporations
2. › Creditor's statutory demand
3. › Application to set aside statutory demand
4. › Offsetting claim arising after filing of setting-aside application
5. › Graywinter principle
6. › Whether new ground raised at hearing precluded by supporting affidavit
7. › Corporations Act 2001 (Cth), s 459G(3)
1. Building and Construction
2. › Security of payment legislation
3. › Statutory debt under s 14 of Building and Construction Industry Security of Payment Act 1999 (NSW)
4. › Suspension of work pending payment
5. › Whether statutory suspension precluded termination of contract
6. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14, 15, 27
1. Contract
2. › Termination
3. › Election to affirm contract
4. › Whether conduct after breach constituted unequivocal affirmation
5. › Whether purported termination precluded by prior election to affirm

Quick Take

Practitioners seeking to set aside statutory demands based on SOP Act debts by raising offsetting claims for loss of bargain damages must ensure that the party has not previously affirmed the contract, and that any purported termination is not precluded by the sub-contractor's valid statutory suspension of works under s 27 of the SOP Act.