CORPORATIONS — statutory demand — where statutory demand served on Plaintiff claiming judgment debt arising from adjudication determination — where Plaintiff raised a number of offsetting claims — whether offsetting claims amount to an impermissible challenge to the adjudication determination
Quick Take
1The principle in In the matter of Douglas Aerospace Pty Ltd that a claim an adjudication does not reflect the true legal rights of the parties cannot constitute an offsetting claim under s 459H is confined to circumstances involving no cross-claim for damages and no completed claim for restitution; where genuine cross-claims for liquidated damages and restitution claims based on prior payments exist, they are permissible offsetting claims notwithstanding that they may involve propositions inconsistent with the adjudicator's reasoning.
2An adjudicator's determination — including any findings on the enforceability of a deed of variation or satisfaction of a condition precedent — does not give rise to issue estoppel and does not bind a court on an application to set aside a statutory demand, consistently with s 32 of the Building and Construction Industry Security of Payment Act 1999 (NSW) and Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1.
3An offsetting claim that was not raised before the adjudicator remains available on an application to set aside a statutory demand founded on an adjudication certificate; the fact that the adjudicator did not address the claim does not preclude its assertion as a genuine offsetting claim.
