› Offsetting claim for liquidated damages against SOP Act judgment debt
Corporations
› Statutory demand
› Imposition of conditions under s 459M
Quick Take
1A company served with a statutory demand based on a judgment debt entered under the Building and Construction Industry Security of Payment Act 2002 (Vic) may rely on an offsetting claim for liquidated damages where that claim was not considered by the adjudicator and was specifically carved out of the adjudication process.
2Where a superintendent's liquidated damages certificates are issued adopting an adjudicator's findings on extensions of time, and the resulting liquidated damages exceed the amount of the statutory demand, the offsetting claim easily surpasses the threshold of genuineness required under s 459H of the Corporations Act 2001 (Cth).
3The provisional nature of a judgment debt entered under the SOP Act, the fact that the debtor company is a special purpose vehicle that does not own the project land, and anticipated delays in dispute resolution processes do not, without more, justify imposing conditions under s 459M when setting aside a statutory demand.
