In Hoare Bros, Olney J of this Court observed (at p219) that the general flavour of s459J is one of a section which gives the Court a discretion to set aside a statutory demand when the justice of the case demands that a company which is otherwise likely to become deemed to be insolvent should be relieved of that possibility. The debt in question in that case was one arising from the issue of an assessment under the Income Tax Assessment Act 1936 (Cth). Questions remained unresolved in relation to the company's objection to one year's assessment and questions remained unresolved in relation to the Commissioner's decision to reject an objection lodged out of time in respect of another year's assessment."
The extent of any possible cross-claim
9 The quantum of the Plaintiff's cross claim is described in the defendant's submissions at the trial. The components of this claim are:
(a) Lost profits on resales to Azkanaad Pty Limited being management fees of $5,566,403, and goodwill of $4,920,000 a total of $10,486,403; and
(b) In the alternative to (a), loss occasioned by the need to purchase fuel from alternative suppliers and loss of the benefit of a credit agreement being a total of between $2,171,106 and $2,701,762 ;
(c) In addition to (a) or (b), damages payable by the plaintiff to Azkanaad of $6,859,195.94.
10 On the second of these matters, there was evidence before the trial judge, which would allow him to find damages in the sum in the range I have mentioned. On the third matter, Palmer J rejected the primary material upon which that assessment was based, on the ground that it was served outside the leave which he had granted for supplementation of the evidence. In respect of the first matter, there was some evidence of calculations given by Mr Bill Magar but the foundation for those calculations was not before the judge. See Transcript pages 294-5. The expert, Mr Condon, gave evidence of his calculations that lead to the above figures. However the trial judge, for the same reasons, rejected the factual basis of his calculations.
11 Thus in respect of the two major claims there was no evidence before Palmer J to substantiate the claims.
12 It was submitted that the granting of a new trial would relieve any prejudice which led to the rejection of the evidence in support of the loss of profits and accordingly there was the possibility that the plaintiff could recover such amounts.
13 The first difficulty with this argument, according to the defendant, is that pursuant to Pt 51 r 23 (1) of the Supreme Court Rules the Court of Appeal will only order a new trial if it appears that "some substantial wrong or miscarriage has been occasioned." In circumstances where there was no admissible evidence of any loss (other than the alleged $2,701,762 referred to above) it was submitted that it cannot be claimed that any substantial wrong or miscarriage of justice occurred as a result of the alleged errors of law appealed from by the plaintiff even if the Court accepts that the appeal otherwise has merit (Freeman v GJ Coles & Co Ltd [1967] 1 NSWR 297 at 300 and Middleton v Parramatta City Council [1999] NSWCA 448 at [10]).
14 A second difficulty with the plaintiff's argument that it may get a subsequent opportunity to adduce further evidence was said to be that, even if a new trial was ordered, the evidence in that trial may be expressly limited to the evidence before the trial judge (Pt 51 r 23(5) SCR). Alternatively an application to adduce further evidence may be refused on the grounds that it would not have been allowed in the appeal itself (McCarthy v McIntyre [2000] FCA 1250 see however Mulvena v New South Wales Insurance Ministerial Corporation NSWCA (1995) unreported 22.8.95).