In the matter of Linmas Holdings Pty Ltd [2023] NSWSC 791

01/07/2024, 19:25 In the matter of Linmas Holdings Pty Ltd - NSW Caselaw
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Linmas Holdings Pty Ltd [2023]
NSWSC 791
Hearing dates: 30 June 2023
Date of orders: 7 July 2023

Decision date: 07 July 2023
Jurisdiction: Equity - Corporations List
Before: Williams J
Decision: See conclusion at [71].
Catchwords: CORPORATIONS — Statutory demand — Debt arising out

of adjudication under Building and Construction Industry
Act
 Listen
Security of Payment 1999 (NSW) — Where statutory
 Dictionary
demand issued in respect of judgment debt for adjudicated
amount — Whether application
Translate to set aside statutory
demand on grounds of offsetting claim supported by
affidavit served within 21-day statutory period — Claim for
declarations that adjudicated amount not truly payable is
not an offsetting claim within the meaning of s 459H —
Where claim for damages for breach of contract for
defective building work — Where plaintiff relied on costs of
rectifying defects as measure of damages — Where
plaintiff’s evidence did not disclose that building has been
sold — Where no evidence raising plausible contention as
to reasonableness of undertaking rectification work in
those circumstances — Proceedings dismissed
Legislation Cited: Building and Construction Industry Security of Payment Act
1999 (NSW) ss 13, 14, 17, 25(1), 32
Corporations Act 2001 (Cth) ss 459G, 459G(3), 459H,
459H(1)(b)
Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613; [1954] ALR 929;
28 ALJ 319; [1954] HCA 36
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd
[2012] NSWCA 184
https://www.caselaw.nsw.gov.au/decision/1892deb6b3c75ac4e9355597#_Ref139460865 1/21
Diploma Construction (WA) Pty Ltd v KPA Architects Pty

Ltd [2014] WASCA 91
Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty
Ltd (2019) 99 NSWLR 397; (2019) 136 ACSR 563; [2019]
NSWCA 60
In the matter of Douglas Aerospace Pty Ltd (2015) 294
FLR 186; (2015) 33 ACLC 15-012; [2015] NSWSC 167
Infigo II Pty Ltd v Linmas Holdings Pty Ltd [2023] NSWSC
755
Radford v De Froberville [1978] 1 All ER 33; [1977] 1 WLR
1262; 7 BLR 35
Rialto Sports Pty Ltd v Cancer Care Associates Pty Ltd
[2022] NSWCA 146
Sceam Construction Pty Ltd v Clyne (2021) 64 VR 404;
(2021) 365 FLR 326; [2021] VSCA 270
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009)
236 CLR 272; (2009) 83 ALJR 390; (2009) 253 ALR 1;
[2009] NSW ConvR 56-232; [2009] V ConvR 54-757;
[2009] Q ConvR 54-711; (2009) 25 BCL 256; [2009] HCA 8
Westpoint Management Ltd v Chocolate Factory
Apartments Ltd [2007] NSWCA 253
Ziegler as trustee for the Doris Gayst Testamentary Trust v
Cenric Group Pty Ltd [2020] NSWCA 85
Texts Cited: N/A
Category: Principal judgment
Parties: Linmas Holdings Pty Ltd (ACN 600 935 653) (Plaintiff)
Infigo II Pty Ltd (ACN 605 309 279) (Defendant)
Representation: Counsel:
Mr D S Weinberger (Plaintiff)
Mr M Sheldon with Mr S T Hanscomb (Defendant)
Solicitors:
Chedid Storey Legal (Plaintiff)
Vincent Young (Defendant)
File Number(s): 2023/107730
Publication restriction: N/A
JUDGMENT
Introduction
1 These reasons for judgment concern an application by the plaintiff, Linmas Holdings
Pty Ltd (Linmas), to set aside a statutory demand issued by the defendant, Infigo II Pty
Ltd (Infigo), on the basis of an alleged offsetting claim.
Salient facts
2 The following matters are not in dispute, except where the contrary is indicated.
3 Linmas conducts residential and hospitality building projects.
4 Infigo is a builder specialising in the construction and redevelopment of hospitality and
hotel sites.
5 On 4 July 2022, Linmas entered into a contract with Infigo for certain renovation work to
a building containing 38 studio apartments at 1 Caroline Street, Balmain (the
Property).
6 On 9 December 2022, Infigo served on Linmas a payment claim under s 13 of the
Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act)
for works undertaken at the Property. Infigo claimed payment in respect of 17
categories of work. Those works had a total contract value of $2,185,204, [1] of which
Linmas had paid $1,909,978 prior to this payment claim. Subject to one exception,
Infigo claimed that the works were now complete, and sought payment of the balance
of the contract value. The exception concerns tiling works, which were said to be 98 per
cent complete, and in respect of which Infigo claimed payment of a further sum that
would take Linmas’ total payments up to 98 per cent of the contract value for tiling
works. The total payment claimed by Infigo for the 17 work categories was $270,756,
which (if paid) would take the total amount paid by Linmas for contract works to
$2,180,734. In addition, Infigo claimed a total sum of $408,856 in respect of what it
described as approved variations to the contract works.
7 On 23 December 2022, Linmas served a payment schedule on Infigo pursuant to s 14
of the SOP Act. Linmas contended that Infigo’s work in each of the 17 categories was
defective and/or incomplete. Linmas therefore scheduled an amount for payment in
respect of each category that was, in many instances, less than the amount paid in
respect of that category to date. Overall, Linmas scheduled a total amount of
$1,810,993 for contract works, being $98,985 less than the amount of $1,909,978 paid
to date, and $369,741 less than the total of the amount paid to date plus the further
$270,756 claimed by Infigo in this payment claim. Linmas’ payment schedule

disallowed most of the variations claimed by Infigo. Linmas also made a claim for
liquidated damages in the sum of $33,000.
8 On 20 January 2023, Infigo filed an adjudication application under s 17 of the SOP Act.
9 Linmas filed its adjudication response on 30 January 2023, accompanied by a report of
Linmas’ building consultant, Mr Ken Winton. The adjudication response reflected the
position taken by Linmas in its payment schedule concerning contract works, Infigo’s
variation claims, and liquidated damages.
10 The adjudication response and Mr Winton’s report provided greater detail about
Linmas’ allegations that aspects of the work were defective and/or incomplete. Those
allegations do not appear to concern structural matters. They include, for example,
allegations that Infigo failed to install some power points and lights, that some floor
boards had not been laid under the skirting and that some skirting repairs were
outstanding, that 16 bathrooms required re-tiling and waterproofing to repair a sink
waste point, that certain repairs were required to some bathroom fittings and fixtures,
that further coats of paint were required externally and to the ceiling and walls of the
common areas, and that Infigo failed to complete the cleaning of the building and to
remove certain builders’ waste.
11 The adjudication response and Mr Winton’s report also provided greater detail about
Linmas’ reasons for rejecting most of the variation claims. Linmas contended that most
of the works for which Infigo had claimed variations were within the scope of the work
specified in the contract, and so were not variations.
12 On 20 February 2023, the adjudicator determined that the total amount payable for
contract works was $2,129,164. This flowed from a determination that Infigo was
entitled to further payments totalling $219,186 in respect of contract works, being
$51,570 less than the claimed amount of $270,756. In addition, the adjudicator also
determined that Infigo was entitled under the SOP Act to $188,520 in respect of
variations. The adjudicator disallowed Linmas’ claim for liquidated damages. The
overall result of the adjudication, taking into account these determinations and certain
delay costs that the adjudicator allowed to Infigo, was that Infigo was entitled under the
SOP Act to payment of $406,990 (the adjudicated amount).
13 On 3 March 2023, judgment was entered in the District Court of New South Wales in
favour of Infigo against Linmas in the amount of $453,934 pursuant to s 25(1) of the
SOP Act. Linmas does not dispute that the amount for which judgment was entered
reflects the adjudicator’s determination.
14 On 10 March 2023, Infigo issued a statutory demand to Linmas in respect of a debt of
$453,605, being the amount of that judgment debt less an immaterial amount paid to
Infigo by Westpac Banking Corporation pursuant to a garnishee order made in on 6
March 2023 in the same District Court proceeding in which the judgment was entered.
15 The statutory demand was served on Linmas on 13 March 2023. Linmas commenced
these proceedings by originating process filed on 3 April 2023 claiming an order setting
aside the statutory demand. An affidavit of Linmas’ solicitor, Mr Benjamin Chedid, was
filed and served together with the originating process. Linmas read that affidavit,
together with a further affidavit of Mr Chedid sworn on 31 May 2023, at the hearing of
these proceedings on 30 June 2023.
16 Mr Chedid’s first affidavit sworn on 3 April 2023 referred to the events that I have
described at [5]-[15] above, and exhibited copies of the building works contract, Infigo’s
payment claim, Linmas’ payment schedule, part of Infigo’s adjudication application, part
of the Linmas’ adjudication response (including Mr Winton’s report), and the
adjudicator’s determination.
17 Mr Chedid then deposed:
“Offsetting claim
13. Identified in Linmas’s Payment Schedule and Adjudication Response are
incomplete works Infigo was required to perform under the Contract. Linmas has
incurred and is set to incur costs to complete and rectify defective work.
14. To date, Linmas has paid the amount of $1,994,023.17 to Infigo under the
Contract. Works completed to date are valued in Linmas’ Adjudication Response as
$1,817,660.00.
15. Clause 34.7 of the Contract contains express provision for liquidated damages
against Infigo, should Practical Completion not be reached by the Completion Date.
Under the Contract, practical completion was to be achieved by 27 September 2022.
The date for practical completion was adjusted to 10 October 2022. The Superintendent
granted practical completion on 12 November 2022, 33 days later.
16. Mr Hilmer has instructed me to draft and file a Statement of Claim, naming Infigo
as the defendant, for breach of contract and negligence, seeking damages exceeding
the amount of the Judgment.
17. I anticipate filing those proceedings in the next 14 days.”
18 Mr Chedid’s first affidavit was the only supporting affidavit filed and served by Linmas
within the 21-day statutory period.
19 Mr Hilmer, who is referred to in paragraph 16 of Mr Chedid’s affidavit (excerpted above
at [17]), is a director of Linmas.
20 The basis of Mr Chedid’s evidence in paragraph 13 of his affidavit that Linmas “has
incurred and is set to incur costs to complete and rectify defective work” is not apparent
from the affidavit. Mr Chedid does not claim to have any personal knowledge of those
matters. Nor does he state that this aspect of his evidence is given on information and
belief, or that it is a summary of his instructions. Infigo disputes that Linmas has
incurred any such costs to date, as the statement of claim filed by Linmas in the District
Court proceedings referred to at [21]-[22] below describes all of that work as
prospective and there is no evidence in these proceedings that Linmas has already
carried out any such work. Infigo also disputes that Linmas will incur any such costs in
the future because it no longer owns the Property, as referred to at [27] below.
21 In his second affidavit sworn on 31 May 2023, Mr Chedid gave evidence of a statement
of claim that he had prepared and filed in the District Court on behalf of Linmas against
Infigo on 30 May 2023. A copy of the statement of claim, which was verified by Mr
Hilmer, was annexed to the affidavit.
22 The statement of claim pleads that Linmas “is and was at all material times” the owner
of the Property. It pleads the contract entered into on 4 July 2022, and certain terms of
that contract. The statement of claim then pleads that Infigo breached the contract by
leaving certain works incomplete and by carrying out other works in a defective manner.
The details of the allegedly incomplete and defective works are set out in Annexure A to
the statement of claim. It is then pleaded that:
“9 The plaintiff has suffered loss and damage, being:
a. the cost of rectifying the work in the amount of $364,178.80;
b. loss of rent during the rectification work, including to existing tenants, carry out the
rectification work, and find replacement tenants; and
c. the cost of a project manager to oversee the works.”
23 The statement of claim then pleads a further breach of contract by Infigo in failing to
achieve practical completion by 27 September 2022. Linmas claims $59,000 in
liquidated damages in the statement of claim in respect of that alleged breach.
24 In his second affidavit, Mr Chedid deposed that he was still waiting to receive a
quotation for the project management services included in the alleged loss pleaded in
paragraph 9 of the statement of claim excerpted above.
25 In relation to the loss of rent aspect of the damages claim as pleaded in the statement
of claim, Mr Chedid deposed in his second affidavit that he was “aware through my
dealings with the Plaintiff and my instructions that the building is managed by an entity
known as UKO”. Mr Chedid referred to a copy of the tenancy schedule for the Property
that he had obtained from UKO on 30 May 2023. Mr Chedid continued:
“The rectification works will require tenants to vacate their units so the works can be
carried out and a reasonable time to find a suitable tenant. In my experience as a
property and construction lawyer, including my dealings with developers and owners of
properties for lease, I estimate that it will reasonably take:
a. a few days to a week for rooms to be vacated and works to commence;
b. two weeks for works to be carried out; and
c. one to two weeks to find another suitable tenant.”
26 At the hearing on 30 June 2023, Infigo tendered an affidavit sworn by Mr Chedid on 22
June 2023. Linmas had served that affidavit on Infigo in separate proceedings in this
Court in which Infigo seeks orders under s 37A of the Conveyancing Act 1919 (NSW)
setting aside a transfer of the Property from Linmas to 2041House Pty Ltd
(2041House). The affidavit had been read at a hearing of Infigo’s application for
freezing orders in those proceedings. [2]
27 The salient aspects of the contents of Mr Chedid’s 22 June 2023 affidavit, and the
documents exhibited thereto, may be summarised as follows:
(1) Mr Chedid is the principal of the firm of solicitors acting for all three defendants
in those proceedings;
(2) Linmas purchased the Property on or about 25 October 2021 in its capacity as
trustee of the Linmas Trust;
(3) Linmas entered into the building contract with Infigo in its own capacity on 4 July
2022, and immediately entered into “a back-to-back construction contract” with
itself in its capacity as trustee for a contract sum that was $100,000 greater than
the contract sum payable by Linmas to Infigo under the first-mentioned contract;
[3]
(4) Mr Hilmer instructed Mr Chedid in early February 2023 that, in circumstances

where Linmas was in dispute with Infigo about the building work, Mr Hilmer
wished to appoint a new trustee to the Linmas Trust;
(5) Linmas was removed, and 2041House was appointed, as trustee of the Linmas
Trust on 23 February 2023;
(6) pursuant to clause 2 of the Deed of Removal and Appointment of Trustee—
between Mr Hilmer (as Appointor), Linmas (as Outgoing Trustee), and
2041House (as New Trustee)—dated 23 February 2023, Linmas agreed to
cause the trust fund of the Linmas Trust, “and all rights, benefits and provisions
thereof” to be vested in 2041House upon the trusts and subject to the powers
and provisions contained in the trust deed, upon receiving a request from
2041House to do so;
(7) on 13 March 2023, Mr Chedid wrote to Revenue NSW enclosing an executed
transfer of the Property from Linmas to 2041House and applying for a complex
assessment for transfer duty under s 54(3) of the Duties Act 1997 (NSW);
(8) Revenue NSW wrote to Mr Chedid on 18 April 2023 enclosing an assessment of
the duty payable by 2041House on the transfer of the Property in the amount of
$50 in accordance with s 54 of the Duties Act;
(9) Mr Chedid took steps to arrange the transfer of the Property from Linmas to
2041House from 18 April 2023, and 2041House became the registered
proprietor of the Property on 9 June 2023 after some delay occasioned by
requirements of the registered mortgagee;
(10) in the meantime, 2041House exchanged contracts on 15 May 2023 for the sale
of the Property to Co-Living HeadCo Pty Ltd as trustee of the Caroline Balmain
Trust (Co-Living) for $15,100,000;
(11) the sale of the Property to Co-Living was subject to conditions that Mr Chedid
was informed on 16 June 2023 had been satisfied.
Issues
28 Linmas does not dispute the judgment debt in respect of which Infigo issued the
statutory demand. Linmas contends that the statutory demand should be set aside
because it has an offsetting claim against Infigo for an amount greater than the amount
of that judgment debt.
29 The brief written opening submissions served by Linmas prior to the hearing alluded in
vague terms to the following five elements of the offsetting claim:
(1) a claim for the cost of completing and rectifying allegedly incomplete and
defective building work;
(2) a claim for “any consequential losses”, which was presumably intended to refer
to the loss of rent and the cost of project management services claimed in
paragraph 9 of the statement of claim that Linmas had filed in the District Court
on 30 May 2023 and referred to in Mr Chedid’s second affidavit;
(3) a claim for liquidated damages in the sum of $33,000;
(4) a contention that there was “a differential … of about $215,000” between
variations quantified by in Mr Winton’s report and the variations that had been
claimed by Infigo and allowed by the adjudicator; and
(5) a claim to recover an amount of $176,363, which was described as being the
amount by which Linmas contends that the total sums it has paid to Infigo to
date exceed the value of the building work completed by Infigo. [4]
30 At the hearing on 30 June 2023, Linmas limited the offsetting claim on which it relies, or
purports to rely, in these proceedings to:
(1) the “differential” in relation to variations referred to above, which Linmas
submitted was a claim for approximately $185,915 (the variations differential);
[5]
and
(2) a claim for the cost of completing and rectifying the allegedly incomplete and
defective building work identified in its payment schedule and adjudication
response, which Linmas quantified in the amount of approximately $329,690.
31 Infigo submitted that Mr Chedid’s first affidavit did not support an application to set
aside the statutory demand on the basis of the variations differential or on the basis of
the rectification claim, and that the Court therefore lacks jurisdiction to set aside the
statutory demand on the basis of those claims.
32 Infigo further submitted that the variations differential was not an offsetting claim within
the meaning of s 459H of the Corporations Act 2001 (Cth), and that the rectification
claim was not a genuine offsetting claim.
Consideration
33 I have considered all of the parties’ written and oral submissions, although I do not
consider it necessary to recount all of them in order to explain my reasons for the
decision that I have arrived at.
The variations differential
34 I accept Infigo’s submission that Mr Chedid’s first affidavit does not support an
application to set aside the statutory demand on the basis of the variations differential.
It follows that the Court lacks jurisdiction to set aside the statutory demand on the basis
of the variations differential, even if it were an offsetting claim. The variations differential
is not an offsetting claim in any event, for the reasons explained below.
35 The applicable principles are clear. An application to set aside a statutory demand
under s 459G of the Corporations Act is validly made only if it is filed together with “an
affidavit supporting the application” within the 21-day statutory period. [6] In the context
of an application to set aside a statutory demand on the basis that there is a genuine
offsetting claim, the affidavit must provide the basis for establishing the existence of
that bona fide claim, expressly or by reasonably available inference. Precisely what that
requires, and what might reasonably be inferred from the affidavit and documents
exhibited or annexed to it, will depend on the facts of the particular case. It is necessary
to bear in mind in every case the summary nature of the procedure and the limited time
available for the filing of the supporting affidavit, and that the court is to determine
whether a genuine offsetting claim exists, and not to determine its merits. [7]
36 Linmas submitted that Mr Chedid’s first affidavit supported an application to set aside
the statutory demand on the grounds of the variations differential and the rectification
claim by exhibiting its payment schedule and adjudication response. Linmas submitted
that it was clear from the inclusion of those documents in the exhibits to Mr Chedid’s
first affidavit that Linmas maintained the position that it had adopted in its payment
schedule and adjudication response, and that Infigo could not be in any doubt that
Linmas was raising a claim that would effectively be “a re-run” of everything that was
before the adjudicator.
37 I reject that submission. All that could reasonably be inferred from Mr Chedid’s first
affidavit was that, in the context of the building contract between Linmas and Infigo, and
of the adjudication process and determination which Mr Chedid summarised in
paragraphs 4 to 12 of his affidavit (exhibiting the documents generated through that
process), Linmas asserted the claim against Infigo described in paragraphs 13 to 17 of
his affidavit under the heading “Offsetting Claim”. That is the claim for damages for
breach of contract and negligence referred to in paragraph 16 of the affidavit, referable
to the matters referred to in paragraphs 13 to 15 of the affidavit—allegedly incomplete
and defective works, an allegation that the total amount paid by Linmas to Infigo for the
building works to date (excluding the unpaid amount that is the subject of the statutory
demand) exceeds the value of the building works, and liquidated damages. As I have
explained at [29]-[30] above, Linmas no longer relies on the overpayment claim or the
liquidated damages claim described by Mr Chedid as grounds for setting aside the
statutory demand. The description of the offsetting claim in Mr Chedid’s affidavit makes
no mention of either the variations differential or of any claim in respect of that
differential.
38 It follows that the Court has no jurisdiction in these proceedings to vary or set aside the
statutory demand on the basis of any offsetting claim founded on the variations
differential, because no application to set aside the demand on that basis was validly
made in within the 21-day statutory period.
39 Even if I had determined that Mr Chedid’s first affidavit did sufficiently raise an offsetting
claim based on the variations differential, I would have held that this was not an
offsetting claim within the meaning of s 459H of the Corporations Act.
40 At the hearing, counsel for Linmas initially submitted that this was a claim for restitution
for overpayment of the $188,915 in circumstances where Infigo was not in truth entitled
to that amount determined by the adjudicator in respect of variations. However, counsel
for Linmas later conceded that an offsetting claim within the meaning of s 459H of the
Corporations Act is a claim that the company presently has, and that Linmas does not
presently have a restitutionary claim against Infigo in respect of the variations
differential because Linmas has not paid any part of the adjudicated amount that is the
subject of the judgment debt in respect of which Infigo issued the statutory demand.
That concession was properly made. [8]
41 Counsel for Linmas then endeavoured to formulate the claim relating to the variations
differential as a claim in contract arising under two specific provisions of the building
contract. However, after identifying each of the provisions on which he relied, counsel
promptly and correctly conceded that they did not confer any right on Linmas that would
support a claim in respect of the variations that were incorporated in the adjudicated
amount, at least prior to Linmas paying the amount of the adjudicator’s determination
and judgment debt to Infigo.
42 The third and final iteration of the alleged offsetting claim based on the variations
differential propounded by counsel for Linmas during the hearing was a claim for
declarations to the effect that Infigo was not entitled under the building contract to
payment for specific variations, being those variations that the adjudicator had
determined in Infigo’s favour. It was submitted that s 32 of the SOP Act expressly
permits Linmas to make such a claim, and that the claim would not be an appeal from
or “direct attack on” the adjudication, because Linmas would simply be seeking
declarations concerning the parties’ rights under the building contract, and the claim
would not even refer to the adjudication. Counsel for Linmas submitted that this claim
for declaratory relief was an offsetting claim within the meaning of s 459H of the
Corporations Act because the declarations, if made, would be “a complete answer” to
the judgment debt for the adjudicated amount.
43 I reject those submissions. After undertaking an extensive analysis of relevant
authorities in In the matter of Douglas Aerospace Pty Ltd, [9] Brereton J (as his Honour
then was) followed the Court of Appeal of the Supreme Court of Western Australia in
Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [10] in determining that an
arguable claim that the adjudication does not reflect the true legal rights of the parties
does not amount to an offsetting claim for the purpose of s 459H(1)(b) of the
Corporations Act where there is no cross-demand for damages, and where there has
been no payment and there is therefore no complete claim for restitution. As his Honour
explained: [11]
“… a curial proceeding in which a party to a construction contract seeks, by way of
enforcing its contractual rights, a declaration that an adjudicated amount is not truly due
and payable is in a position closely analogous to one who applies to set aside a
judgment, or to appeal from a judgment – essentially, the contention is that the
adjudication, and thus the judgment founded on it, is wrong. Despite the width of the
concept of ‘offsetting claim’, it has never been thought to extend to an appeal from, or
application to set aside, a judgment. In the absence of payment of an amount of which
restitution might be claimed, there is nothing to be set off against the judgment debt, but
only a contention that the adjudication is in error. A contention that a debt does not exist
is not a ‘counterclaim, set-off or cross-demand’. Such a contention denies the debt,
whereas a counterclaim, set-off or cross-demand admits it, but asserts that there is a
countervailing liability. That the curial proceedings might produce a different result is no
different from an appeal. The general principle that an appeal or application to set aside
a judgment does not found a genuine dispute, or (at least without more) provide some
other reason to set aside a demand, supports the conclusion that a claim that an
adjudication does not reflect the true contractual rights of the parties does not amount
to an offsetting claim.”
44 Contrary to the submissions made on behalf of Linmas in the present case, it is not to
the point that the claim for declaratory relief might be framed in terms that avoid
referring to the adjudication. As a matter of substance, the claim for declaratory relief
would be a contention that the judgment debt does not exist, rather than a
counterclaim, set-off, or cross-demand. Moreover, that contention is unsustainable. As
Brereton J explained, the judgment debt is indisputable so long as the judgment stands,
notwithstanding that s 32 of the SOP Act preserves to the parties the right to contend
for a different result in curial proceedings, and notwithstanding that any judgment in
such curial proceedings can take the adjudication into account and make any
adjustment necessary to give effect to what the court finds to be the true legal rights of
the parties. [12]
45 For all of those reasons, the Court does not have jurisdiction to entertain Linmas’
application to set aside the statutory demand on the basis that it has some offsetting
claim in relation to the variations differential. However, even if I had been of the view
that this ground of challenge was sufficiently identified in Mr Chedid’s first affidavit to
confer jurisdiction on the Court, I would have held that Linmas’ foreshadowed claim for
declaratory relief in respect of the parties’ true contractual rights in relation to variations
is not an offsetting claim within the meaning of s 459H of the Corporations Act,
assuming for present purposes that Linmas’ contention as to the parties’ true
contractual rights is arguable. I would therefore have declined to set aside or vary the
statutory demand on account of that foreshadowed claim.
The rectification claim
46 The rectification claim described in paragraph 13 of Mr Chedid’s first affidavit sworn on

3 April 2023 is a claim for costs that he asserted Linmas had incurred, and would incur
in the future, to complete and rectify allegedly defective work. Mr Chedid’s affidavit did
not disclose that Linmas held the Property on trust for the Linmas Trust, that
2041House had replaced Linmas as trustee of the Linmas Trust with effect from 23
February 2023, that Linmas had executed a transfer of the Property to 2041House, and
that the transfer was in the process of being assessed for stamp duty as at 13 March
2023, with a view to the transfer being registered. [13] Mr Chedid’s second affidavit
sworn on 31 May 2023 also failed to disclose those matters and the subsequent
developments—that Linmas had been taking steps to complete the transfer of the
Property to 2041House since 18 April 2023, and that 2041House had entered into a
contract for the sale of the Property to a third party. The statement of claim that Linmas
filed in the District Court on 30 May 2023 was also silent about those matters and
simply pleaded that Linmas was the owner of the Property. [14]
47 Infigo submitted that the undisclosed matters render the rectification claim a
fundamentally different claim from that described in Mr Chedid’s first affidavit. The claim
described by Mr Chedid is a claim for the actual costs incurred in the past, and to be
incurred by Linmas in the future, in carrying out the work that it contends is necessary
to complete the building works and to rectify the alleged defects. By contrast, Infigo
submitted that the rectification claim articulated by Linmas at the hearing is a different
claim for damages equivalent to the cost of making the building work conform to the
contractual specification. For that reason, Infigo submitted that Linmas’ application to
set aside the statutory demand on the basis of its rectification claim as formulated at
the hearing was not validly made in accordance with s 459G(3) of the Corporations Act,
and that the Court therefore lacks jurisdiction to determine the application to set aside
the statutory demand in so far as it relies on that rectification claim.
48 Linmas submitted that the rectification claim articulated at the hearing is the same claim
as that which was identified in Mr Chedid’s first affidavit. Linmas submitted that the
transfer of the Property from Linmas to 2041House, and the subsequent contract for
the sale of the Property from 2041House to a third party, are irrelevant to its rectification
claim.
49 Where a landowner contracts to have a building work performed on their land, and the
builder fails to perform the work in accordance with the contract and the specifications
that form part of it, the damage incurred by the owner is the loss that they have
sustained by reason of the builder’s failure to perform its contractual obligations. In
Bellgrove v Eldridge, the High Court said: [15]
“This loss cannot be measured by comparing the value of the building which has been
erected with the value it would have borne if erected in accordance with the contract;
[the owner’s] loss can, prima facie, be measured only by ascertaining the amount
required to rectify the defects complained of and so give to [them] the equivalent of a
building on [their] land which is substantially in accordance with the contract.
…
The qualification, however, to which this rule is subject is that, not only must the work
undertaken be necessary to produce conformity, but that also, it must be a reasonable
course to adopt.”
50 In Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (Tabcorp), the High Court
explained this “rule” as an application of the overriding principle that a party who suffers
loss by reason of a breach of contract is to be placed in the same position as if the
contract had been performed, so far as money is able to do that. [16] The High Court
cited with approval the following passage from the judgment of Oliver J in Radford v De
Froberville: [17]
“Now, it may be that, viewed objectively, it is not to the plaintiff’s financial advantage to
be supplied with the article or service which he has stipulated. It may be that another
person might say that what the plaintiff has stipulated for will not serve his commercial
interests so well as some other scheme or course of action. And that may be quite right.
But that, surely, must be for the plaintiff to judge. Pacta sunt servanda. If he contracts
for the supply of that which he thinks serves his interests – be they commercial,
aesthetic or merely eccentric – then if that which is contracted for is not supplied by the
other contracting party I do not see why, in principle, he should not be compensated by
being provided with the cost of supplying it through someone else or in a different way,
subject to the proviso, of course, that he is seeking compensation for a genuine loss
and not merely using a technical breach to secure an uncovenanted profit.”
51 The High Court referred to the qualification expressed in Bellgrove v Eldridge that the
work must be necessary to produce conformity with the contract, and a reasonable
course to adopt, and noted the example of unreasonableness given in that case: [18]
“No one would doubt that where pursuant to a building contract calling for the erection
of a house with cement rendered external walls of second-hand bricks, the builder has
constructed the walls of new bricks of first quality the owner would not be entitled to the
cost of demolishing the walls and re-erecting them in second-hand bricks.”
52 The High Court in Tabcorp stated that the example: [19]
“… tends to indicate that the test of ‘unreasonableness’ is only to be satisfied by fairly
exceptional circumstances. The example given by the court aligns closely with what
Oliver J said in Radford, that is, that the diminution in value measure of damages will
only apply where the innocent party is ‘merely using a technical breach to secure an
uncovenanted profit’.”
53 In Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [20] (Cordon), the Court of
Appeal considered a claim by the registered proprietor of premises on which residential
units had been developed for damages for breach of contract by the developer,
measured as the cost of rectifying defects on that part of the property which became
common property on registration of the strata plan and which had therefore vested in
the owners corporation. The Court of Appeal held that the primary judge was justified in
concluding, on the basis of the evidence adduced at trial, that the rectification work
would not be carried out. The evidence given by the witnesses called by the former
registered proprietor (Lesdor) was equivocal as to whether Lesdor intended to carry out
the work, and there was no evidence that the owners corporation proposed to carry out
the work or to call on Lesdor to do so. Bathurst CJ, with whom Macfarlan and Meagher
JJA agreed, accepted that a possibility that rectification work will not be carried out
does not preclude a claim for damages for the cost of the rectification work. Referring to
Tabcorp, the Chief Justice also accepted that unreasonableness will only be
established in exceptional circumstances. Nevertheless, His Honour held that: [21]
“The combination of the lack of intention to carry out the rectification work, the transfer
of the property from Lesdor to the owners corporation and the absence of any evidence
that the defects were affecting the use and occupation of the building or the common
property leads, in my opinion, to the conclusion that it would be unreasonable to carry
out the work and that damages for the cost of rectification should therefore not be
awarded.”
54 In coming to that conclusion, his Honour approved and applied the following
observations about the nexus between intention or lack of intention to carry out
rectification work and unreasonableness in Westpoint Management Ltd v Chocolate
Factory Apartments Ltd (Westpoint): [22]
“59 Relevance of the plaintiff’s intention to carry out the rectification work to
reasonableness is accepted in, for example, Chitty on Contracts, 29th ed, at 20-016,
and Hudson’s Building and Engineering Contracts, 11th ed at 8-138. It appears to have
been accepted in De Cesare v Deluxe Motors Pty Ltd – indeed, sale of the building may
have relevance through whether or not the rectification work will be carried out. If truly
going to reasonableness, I do not think consideration of whether or not the plaintiff will
carry out the rectification work is inconsistent with Bellgrove v Eldridge, since the regard
to it is part of arriving at the plaintiff’s compensable loss. Once there is compensable
loss, the court is not concerned with the plaintiff’s use of the compensation.
60 But the plaintiff’s intention to carry out the rectification work, it seems to me, is not
of significance in itself. The plaintiff may intend to carry out rectification work which is
not necessary and reasonable, or may intend not to carry out rectification work which is
necessary and reasonable. The significance will lie in why the plaintiff intends or does
not intend to carry out the rectification work, for the light it sheds on whether the
rectification is necessary and reasonable. Putting the same point not in terms of
intention, but of whether or not the plaintiff will carry out the rectification work, whether
the plaintiff will do so has significance for the same reason, and not through the bald
question of whether or not the plaintiff will carry out the rectification work. That question
is immaterial, see Bellgrove v Eldridge.
61 So if supervening events mean that the rectification work can not be carried out, it
can hardly be found that the rectification work is reasonable in order to achieve the
contractual objective: achievement of the contractual objective is no longer relevant. If
sale of the property to a contented purchaser means that the plaintiff did not think and
the purchaser does not think the rectification work needs to be carried out, it may well
be found to be unreasonable to carry out, the rectification work. An intention not to carry
out the rectification work will not of itself make carrying out the work unreasonable, but
it may be evidentiary of unreasonableness; if the reason for the intention is that the
property is perfectly functional and aesthetically pleasing despite the non-complying
work, for example, it may well be found that rectification is out of all proportion to
achievement of the contractual objective or to the benefit to be thereby obtained.”
55 As Bathurst CJ observed in Cordon, the question of whether it is reasonable to carry
out the rectification works is a question of fact in each case. [23]
56 Counsel for Linmas relied on the subsequent Court of Appeal decision in Rialto Sports
Pty Ltd v Cancer Care Associates Pty Ltd [24] (Rialto) as support for his submission that
a change of ownership of the property is irrelevant to the former owner’s entitlement to
damages for the cost of rectification works which may not be carried out. Counsel
emphasised that, in Rialto, the strata lot owners were held to be entitled to such
damages in respect of remedial works to the common property, notwithstanding that the
lot owners had never been owners of the common property. However, that case turns
on its own facts and does not support the general proposition advanced by counsel for
Linmas. In Rialto, the lot owners’ claims were made against the owner of the property
from whom they had purchased their lots off the plan under contracts containing
covenants that the building would be constructed in a proper and workmanlike manner.
The defects to the common property related to combustible aluminium cladding and
waterproofing issues. Gleeson JA, with whom Bell CJ and Macfarlan JA agreed, held
that the lot owners had suffered loss by reason of the defects to the common property,
being a diminution in the value of each lot owner’s proprietary interest in the common
property as an equitable tenant in common with the other lot owners. The lot owners
were therefore entitled to damages against the owner for breach of those covenants.
Rectification works were necessary, and it was reasonable for those works to be carried
out. In those circumstances, the cost of those works was the appropriate measure of
damages, notwithstanding the possibility that the works may not be carried out by the
owners corporation (which was controlled by the vendor/owner). Rialto represents an
application of the principles to which I have referred at [49]-[55] above to the particular
circumstances of that case.
57 Turning to the present case, I reject Infigo’s submission that the rectification claim on
which Linmas relies in challenging the statutory demand is a different claim from that
which was described in Mr Chedid’s first affidavit. It is the same claim for damages for
alleged breaches of contract, measured as the cost of undertaking work that Linmas
contends is necessary to rectify the alleged defects. As the authorities discussed above
make plain, it is not an essential element of such a claim that the claimant will carry out
the rectification works and will incur those costs. The matters referred to at [27] above,
which first became known to Infigo through other proceedings in this Court, do not
change the character of the claim. However, they are relevant to the claim, as
discussed further below. Accordingly, the Court has jurisdiction to determine Linmas’
application to set aside the statutory demand on the basis that of rectification claim.
58 In Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd (Grandview), Bell P (as
the Chief Justice then was) addressed what is required in order to demonstrate the
existence of a genuine offsetting claim: [25]
“61. … it is desirable to say something as to the meaning of the word ‘genuine’ in the
context of the definition of ‘offsetting claim’ in s 459H(5) of the Corporations Act and
how it has been interpreted in the case law. ...
62. In Ozone Manufacturing Pty Ltd v Deputy Commissioner of Taxation (2006) 94
SASR 269; [2006] SASC 91 at [46]-[49] per Debelle J (with whom Besanko and Layton
JJ agreed) said:
‘[46] The meaning of the expression “offsetting claim”, like the meaning of
“genuine dispute” has been illuminated by analogies found in applications for
injunctions to restrain the commencement, advertisement and prosecution of
winding-up proceedings pre-dating the enactment of s 459G and in the
opposing of a notional application by the person who has served the statutory
demand for summary judgment against the company for the debt the subject of
the demand: Chase Manhattan at 136. Thus, when deciding whether an
offsetting claim exists, the test is whether the court is satisfied that there is a
serious question to be tried that the person on whom the demand has been
served has an offsetting claim: Scanhill Pty Ltd v Century 21 Australasia Pty
Ltd [1993] FCA 618; (1993) 12 ACSR 341 at 357, or that the claim is not
frivolous or vexatious: Chadwick Industries (South Coast) Pty Ltd v Condensing
Vaporisers Pty Ltd (1994) 13 ACSR 37, or that it is not fictitious or merely
colourable: Edge Technology Pty Ltd v Lite-on Technology Corporation [2000]
NSWSC 471; (2000) 156 FLR 181 at 184-5, citing Jesseron Holdings Pty Ltd v
Middle East Trading Consultants Pty Ltd (No 2) (1994) 13 ACSR 787.
[47] The test whether an offsetting claim exists is the same as for a genuine
dispute, that is to say, the claim must be bona fide and truly exist in fact and that
the grounds for alleging the existence of the dispute are real and not spurious,
hypothetical, illusory or misconceived. The issue is whether the offsetting claim
is bona fide, real and not spurious: Edge Technology per Santow J at [25].
[48] I do not think that the test identified by Santow J imposes a more
onerous task on the party disputing the statutory demand than the serious
question test. The expression “good faith” means arguable on the basis of facts
asserted with a sufficient particularity to enable the court to determine that the
claim is not fanciful: Macleay Nominees Pty Ltd v Belle Property East Pty
Ltd [2001] NSWSC 743 per Palmer J. McPherson JA expressed the same
concept in these terms in JJMMR Pty Ltd v LG International Corporation [2003]
QCA 519 at [18]:
“Anyone can make a claim to a right of setoff against a creditor. What
the definition in s 459H(5) requires, however, is that it be ‘genuine’. The
same word in s 459H(1) has already elicited so many synonyms and
shades of meaning that it will not help to add more. Its antithesis is to be
seen in the word ‘artificial’. The claim to set off against the debt
demanded must not have been manufactured or got up simply for the
purpose of defeating the demand made against the company. It must
have an existence that is objectively demonstrable independently of the
exigencies of the demand that evoked it.
The observations of Palmer J and McPherson JA were applied by
Chesterman J in Cooloola Dairies Pty Ltd v National Foods Milk
Ltd [2004] QSC 308; [2005] 1 Qd R 12.”’
63. In addition to these valuable observations, reference should be made to the
judgment of McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
at 787 where his Honour, having characterised the test for whether or not there was a
‘genuine claim’ in terms of whether there was ‘a plausible contention which requires
investigation’, went on to say:
‘This does not mean that the court must accept uncritically as giving rise to a
genuine dispute, every statement in an affidavit “however equivocal, lacking in
precision, inconsistent with undisputed contemporary documents or other
statements by the same deponent, or inherently improbable in itself, it may be”
not having “sufficient prima facie plausibility to merit further investigation as to
[its] truth”. (cf Eng Mee Yong v Letchunanan [1980] AC 331 at 341), or “a
patently feeble legal argument or an assertion of facts unsupported by
evidence”: cf South Australia v Wall (1980) 24 SASR 189 at 194.’
64. The Victorian Court of Appeal has spoken of ‘prima facie plausibility’ in this
context: TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd [2008] VSCA 70;
66 ACSR 67 at [71]; see also Britten-Norman Pty Ltd v Analysis and Technology
Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344 at [48]-[49].
65. Most recently, in In the matter of Citadel Financial Corporation Pty Ltd [2019]
NSWSC 65 at [30], White JA said:
‘In judging the sufficiency of the evidence to give rise to an offsetting claim, the
question is not whether the evidence is sufficient to establish the offsetting claim
or its amount, but whether it is sufficient to establish that the offsetting claim is
genuine and its genuine level (Re Morris Catering (Australia) Pty Ltd(1993) 11
ACSR 601 at 605; Britten-Norman Pty Ltd v Analysis and Technology Australia
Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344 at [48] and [49]). It is
sufficient if there be a plausible contention requiring investigation (Britten-
Norman Pty Ltd v Analysis and Technology Australia Pty Ltd at [70]). The
offsetting claim should have a sufficient objective existence and prima facie
plausibility to distinguish it from a merely spurious claim, bluster or assertion
and not be merely fanciful or futile (TR Administration Pty Ltd v
Frank Marchetti & Sons Pty Ltd [2008] VSCA 70; (2008) 66 ACSR 67 at [71]
cited with approval in Britten-Norman Pty Ltd v Analysis and Technology
Australia Pty Ltd at [52]-[53]).’”
59 Bell P had earlier observed that: [26]
“8. The establishment of an offsetting claim for the purposes of s 459H does not, of
course, constitute a finding that the claim is a good one, or that it has been made out. It
represents nothing more than a finding that there is a serious question as to the
existence of an offsetting claim or an issue deserving of a hearing as to whether the
company has such a claim against the creditor and that a claim is made in good faith
and is arguable and not frivolous or vexatious: Scanhill Pty Ltd v Century 21 Australasia
Pty Ltd (1993) 47 FCR 451 at 460, 467 per Beazley J (as her Honour then was); In the
matter of Oztec Pty Ltd [2012] NSWSC 1234 at [22] per Black J…”
60 White JA and Sackville AJA agreed with Bell P. [27]
61 In the present case, Linmas has not adduced sufficient evidence to establish that its
rectification claim is a genuine offsetting claim. The payment schedule and adjudication
response (including Mr Winton’s report) exhibited to Mr Chedid’s first affidavit pre-date
Linmas’ removal as trustee of the Linmas Trust, its transfer of the Property to the new
trustee, and the sale of the Property by that new trustee to a third party. Mr Chedid’s
evidence does not add to these documents in any meaningful way. Mr Chedid merely
describes the incomplete works identified in those documents as issues in respect of
which “Linmas has incurred and is set to incur costs to complete and rectify defective
work.” Mr Chedid is the solicitor for Linmas. The evidence does not point to Mr Chedid
having any personal knowledge of either the alleged defects or whether Linmas intends
to undertake any work to rectify those defects. Counsel for Linmas acknowledged that
this statement in paragraph 13 of Mr Chedid’s first affidavit was, in substance, a
submission based on the adjudication response. Accordingly, the statement itself has
no evidentiary weight, and rises no higher than the adjudication response.
62 Neither the adjudication response nor any other evidence adduced by Linmas
establishes a plausible contention requiring investigation that, notwithstanding all of the
matters referred to at [27] above, rectification of the defects described at [10] above can
be carried out, and that it is reasonable to carry out that work. Linmas did not raise any
contention, even in submissions, that it can carry out the rectification work,
notwithstanding that the Property has already been transferred to 2041House and is
about to be transferred to Co-Living. Nor did Linmas contend that the value of the
Property or the price at which the Property has been sold to Co-Living were diminished
by reason of the allegedly incomplete and defective work. Nor did Linmas identify how
any such diminution would arguably represent a loss to Linmas, as opposed to the
Linmas Trust and 2041House as the new trustee of that Trust.
63 Counsel for Linmas initially submitted that the sale of the Property was simply
irrelevant. I reject that submission, which is inconsistent with the decisions in Cordon
and Westpoint to which I have referred above.
64 Inconsistently with his initial submission, counsel for Linmas then submitted that Linmas
was not required to adduce any evidence in these proceedings touching on the
reasonableness question because “it is ultimately a factual issue” whereby “[i]f your
Honour can see there is scope for my client to demonstrate reasonableness and
necessity, then there is an arguable case in the sense that expression is used on an
application for an injunction, or, in the General Steel sense, my client doesn’t need to
go further and positively satisfy your Honour on this application.” I reject that
submission as an inaccurate gloss on what an applicant seeking to set aside a statutory

demand on the basis of a genuine offsetting claim must establish. What Linmas was
required to establish in these proceedings were plausible contentions (as distinct from
spurious assertions) that the rectification work underpinning its offsetting claim was
necessary, and that it was reasonable to carry out that work in the circumstances
referred to at [27] above. Linmas adduced no evidence from any witness bearing on
reasonableness in those circumstances, and did not identify material within the three
volumes of documentary evidence that supported plausible contentions that it was
reasonable to carry out the work in those circumstances.
65 During the hearing, I pressed counsel for Linmas to identify any evidence relied on in
support of the submission that there was “scope” to demonstrate reasonableness at
trial, counsel for Linmas answered:
“There are two ways I can put it. I can put it that the defendant shouldn’t have the
benefit of being paid for work that is defective. It can be characterised as what is the
true value of the work carried out by the defendant? The adjudicator valued it at X and
said my client has to pay $188,000 for variations, some other bits and pieces and
$200,000 on account of the work carried out.
So, another way to characterise the case is that the value of the work is not as asserted
and as found by the adjudicator, to the point that my client doesn’t even have to get into
the … Cordon question.
…
Another way my client can put its case is not that rectification is necessary and
reasonable, is simply that the value of the works was somewhat less than found by the
adjudicator.”
66 I understand this response to my question—which simply formulated a restitutionary
claim in the alternative to a claim for damages for breach of contract—as a concession
that there is no evidence in these proceedings that supports Linmas’ submission that
there is “scope” for it to demonstrate reasonableness at trial.
67 Counsel returned to this alternative claim in his submissions in reply at the conclusion
of the hearing. Counsel referred me to Infigo’s claim in its payment claim/adjudication
application that the value of the contract works was $2,180,734, Linmas’ contention in
its payment schedule/adjudication response that the value was only $1,810,993, and
the adjudicator’s determination that the value was $2,129,164. [28] Counsel submitted
that: “That’s an alternative way of casting the differential”.
68 I consider it doubtful that this alternative claim—for restitution of the difference between
Linmas’ $1,810,993 valuation of the contract works and the adjudicator’s valuation of
$2,129,164—was supported by Mr Chedid’s first affidavit. That affidavit did identify a
different claim for restitution of any amount said to represent the difference between
Linmas’ $1,810,993 valuation of the contract works and the amount that it has paid to
date in respect of the contract works. Linmas abandoned any reliance on that claim as
offsetting claim at the hearing, as referred to at [28]-[29] above.
69 In any event, the alternative referred to at [65]-[67] above is a claim for restitution of an
amount that includes the value of works for which Linmas has not yet paid. That is
because the adjudicator’s valuation of $2,129,164 includes part of the adjudicated
amount that is the subject of the judgment debt, which Linmas has not paid. [29] That is
not a genuine offsetting claim. [30]
70 For all of those reasons, the evidence before the Court in these proceedings did not
establish that the rectification claim—in either of its formulations—is a genuine
offsetting claim in the sense explained in Grandview.
Conclusion
71 Linmas has failed to establish any of the grounds on which it ultimately relied in
challenging the statutory demand. There will be an order dismissing the proceedings. I
will hear the parties in relation to costs.
**********
Endnotes
1. All monetary amounts have been rounded to the nearest whole dollar amount.
2. Proceedings 2023/192930. The freezing order application was determined on 29 June 2023—see Infigo
II Pty Ltd v Linmas Holdings Pty Ltd [2023] NSWSC 755.
3. My summary of Mr Chedid’s evidence should not be understood as accepting the proposition that Linmas
was able to enter into a contract with itself: Infigo II Pty Ltd v Linmas Holdings Pty Ltd [2023] NSWSC
755 at [62]-[63] (Meek J) (and the authorities there referred to); see also [65]-[82] of that judgment.
4. The evidence does not explain how the amount of $176,363 is calculated, and I am unable to reconcile it
with the evidence summarised in [6]-[12] above. However, nothing material turns on that in these
proceedings.
5. This involved an implicit concession by Linmas that the amount of $215,000 in Linmas’ opening
submissions was an error, and that the amount of the “differential” could be no more than $185,915,
calculated as the sum of $188,520 that had been allowed by the adjudicator and the amount of $2,604
that had been accepted by Linmas (through Mr Winton) in its adjudication response.
6. Corporations Act, s 459G(3).
7. Ziegler as trustee for the Doris Gayst Testamentary Trust v Cenric Group Pty Ltd [2020] NSWCA 85 at
[31]-[37] (Gleeson JA, Meagher and McCallum JJA agreeing); Sceam Construction Pty Ltd v Clyne
(2021) 64 VR 404; (2021) 365 FLR 326; [2021] VSCA 270 at [38]-[42] (Ferguson CJ, Sifris and Walker
JJA).
8. In the matter of Douglas Aerospace Pty Ltd (2015) 294 FLR 186; (2015) 33 ACLC 15-012; [2015]
NSWSC 167 at [99] (Brereton J) (Douglas Aerospace).
9. Ibid at [45]-[100].
10. [2014] WASCA 91.
11. Douglas Aerospace at [98].
12. Ibid at [53]-[54] and [58]-[66].
13. See [27] above.
14. See [21]-[27] above.
15. (1954) 90 CLR 613; [1954] ALR 929; 28 ALJ 319; [1954] HCA 36 at 90 CLR 617-618 (Dixon CJ, Webb
and Taylor JJ).
16. (2009) 236 CLR 272; (2009) 83 ALJR 390; (2009) 253 ALR 1; [2009] NSW ConvR 56-232; [2009] V
ConvR 54-757; [2009] Q ConvR 54-711; (2009) 25 BCL 256; [2009] HCA 8 at [13]-[17] (French CJ,
Gummow, Heydon, Crennan, and Kiefel JJ).
17. [1978] 1 All ER 33; [1977] 1 WLR 1262; 7 BLR 35 at 1 All ER 42, excerpted in Tabcorp at [16].
18. Belgrove v Eldridge at 218; Tabcorp at [17].
19. At [17].
20. [2012] NSWCA 184.
21. Ibid at [230].
22. [2007] NSWCA 253 at [59]-[61] (Giles JA, McColl and Campbell JJA agreeing).
23. Cordon at [214].
24. [2022] NSWCA 146.
25. (2019) 99 NSWLR 397; (2019) 136 ACSR 563; [2019] NSWCA 60 at [61]-[65] (White JA and Sackville
AJA agreeing).
26. Ibid at [8] (White JA and Sackville AJA agreeing).
27. Ibid at [93]-[96] (White JA) and [98]-[100] (Sackville AJA).
28. See [6]-[12] above.
29. See [12] above.
30. Douglas Aerospace at [99].
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Decision last updated: 07 July 2023

In the matter of Linmas Holdings Pty Ltd [2023] NSWSC 791

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01/07/2024, 19:25 In the matter of Linmas Holdings Pty Ltd - NSW Caselaw

Date of orders: 7 July 2023

Decision: See conclusion at [71].

Catchwords: CORPORATIONS — Statutory demand — Debt arising out

Diploma Construction (WA) Pty Ltd v KPA Architects Pty

$270,756 claimed by Infigo in this payment claim. Linmas’ payment schedule

(4) Mr Hilmer instructed Mr Chedid in early February 2023 that, in circumstances

The variations differential

The rectification claim

46 The rectification claim described in paragraph 13 of Mr Chedid’s first affidavit sworn on

submission as an inaccurate gloss on what an applicant seeking to set aside a statutory

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