BBB Constructions P/L v Frankipile Australia P/L [2008] NSWSC 982

CORPORATIONS – creditor’s statutory demand – application to set aside demand – where debt arose under (NSW) Building and Construction Industry Security of Payment Act 1999 – offsetting claim – where parties are head contractor and sub-contractor – test for determining whether there is a genuine offsetting claim – where plaintiff alleges that defendant is liable under contract for damage to neighbouring properties due to inadequate construction work – where preliminary expert evidence suggests that defendant may have caused the damage – whether the claim is bona fide and truly existing – whether plaintiff’s financial position relevant to whether offsetting claim made in good faith – whether offsetting claim needs to be particularised as an exact amount – whether condition should be imposed that the plaintiff nonetheless pay into court the amount claimed by defendant on setting aside of statutory demand.

LEGISLATION CITED: (CTH) Corporations Act 2001, ss 459E, 459G, 459H - (NSW) Building and Construction Industry Security of Payment Act 1999

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