Statutory Demands Set Aside Due to Genuine Dispute Over Employment Contract

Master Macready of the Supreme Court of New South Wales set aside statutory demands made by a company against a worker, finding that there was a genuine dispute over the existence of an employment contract.

New South Wales Supreme Court

CITATION : Advanced Real Estate v [NAME] [2004] NSWSC 364 HEARING DATE(S) : Friday 30 April 2004

JUDGMENT DATE : 30 April 2004 JURISDICTION: Equity

JUDGMENT OF : Master Macready at 1

DECISION : In each matter I order that the creditor's statutory demand for payment issued by the defendant and served on the plaintiff should be set aside. I order the defendants to pay the plaintiff's costs on an indemnity basis.

CATCHWORDS : Corporations law -- Application to set aside statutory demand -- Demand set aside -- No matter of principle [COMPANY] PARTIES : v [NAME](S) : SC 2149/04; 2150/04 COUNSEL : [redacted] SOLICITORS : [redacted]

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Friday 30 April 2004

2149/04 [COMPANY] v [NAME] 2150/04 [COMPANY] v [NAME] JUDGMENT 1 MASTER: These are applications to set aside statutory demands in which demands were made for moneys said to be due to each of the persons set out in the summons and which arise pursuant to an alleged employment agreement between the company and that person.

2 The company is a company that operated a number of [NAME] franchises, and it proposed to set up a new franchise at a new office. After the office was constructed, [NAME], who was going to be originally the franchise manager, was in the office and was carrying out his own business, not the [NAME] franchise business during the course of the relevant period.

3 Ultimately, [NAME] did not approve the franchisee and someone else was appointed before the franchise started.

4 At some stage the defendants had placed under Mr [NAME]'s nose, during a telephone call, a form of employment form filled out with the name of the plaintiff company on it, showing it trading as [NAME], and it was signed by Mr [NAME]. Mr [NAME] has denied in affidavit evidence that he had authority to sign, and did not know what he was signing at the time.

5 In the circumstances it seems to me there is a genuine dispute as to whether or not there was an employment contract between the defendants and the plaintiff company. Accordingly, I am satisfied that there is a genuine dispute in respect of the whole of the amount claimed in each matter.

6 Accordingly, in each matter, I order that the creditor's statutory demand for payment issued by the defendant and served on the plaintiff should be set aside. I order the defendants to pay the plaintiff's costs on an indemnity basis. **********

Last Modified: 05/03/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.