20*20 Pty Ltd v D&G Developments Pty Ltd

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   20*20 PTY LTD -v- D&G DEVELOPMENTS PTY LTD [2009] WASC 343

CORAM:   MURPHY J

HEARD:   29 SEPTEMBER 2009

DELIVERED          :   25 NOVEMBER 2009

FILE NO/S:   COR 66 of 2009

BETWEEN:   20*20 PTY LTD (ACN 130 746 735)

Applicant

AND

D&G DEVELOPMENTS PTY LTD (ACN 119 593 618)
Respondent

Catchwords:

Statutory demand - Application to set aside statutory demand - Genuine dispute - Genuine offsetting claim - The nature of evidence required to satisfy a court of the existence of a genuine dispute or level of an offsetting claim - Sale of goods - Measure of damages where goods converted into other product and on­sold

Legislation:

Corporations Act 2001 (Cth), s 459G, s 459H
Sale of Goods Act 1895 (WA), s 11, s 14, s 35, s 52
Trade Practices Act 1974 (Cth), s 4B, s 71

Result:

Statutory demand varied

Category:    B

Representation:

Counsel:

Applicant:     Mr J F Park & Ms K E Roach

Respondent:     Mr S C England

Solicitors:

Applicant:     Park Legal Solutions

Respondent:     Lawton Gillon

Case(s) referred to in judgment(s):

Alucraft Pty Ltd (in liq) v Grocon Ltd (No 2) [1996] 2 VR 386

Asian Century Holdings Inc v Fleuris Pty Ltd [2000] WASCA 59

Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2007] VSCA 121; (2007) 63 ACSR 300

AX Business Systems Pty Ltd v Quality Image Pty Ltd [2004] FCA 724

Azed Developments Pty Ltd v Frederick & Co Ltd (in liq) (1994) 14 ACSR 54

Bence Graphics International Ltd v Fasson UK Ltd [1998] QB 87

Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37

Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85

Equuscorp Pty Ltd v Perpetual Trustees WA Ltd (1997) 25 ACSR 675

Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785

Financial Solutions Australasia Pty Ltd v Predella Pty Ltd [2002] WASCA 51; (2002) 26 WAR 306

Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452

Jarpab Pty Ltd v Winter t/as Boldon Haulage (1994) 14 ACSR 255

John Holland Construction & Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250

Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743

Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290

Moyall Investments Services Pty Ltd v White (1993) 12 ACSR 320

ORH Contracting Pty Ltd v CGS Solutions Pty Ltd [2009] WASC 273

Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601

Reale Bros Pty Ltd v Reale [2003] NSWSC 666; (2003) 179 FLR 427

Rohalo Pharmaceutical Pty Ltd v R P Scherer SpA & Pharmagel SpA (1994) 15 ACSR 347

Royal Premier Pty Ltd v Taleski [2001] WASCA 48

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272

Theo Holdings Pty Ltd v Hockey [2000] FCA 665; (2000) 99…

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Details
Case
[2009] WASC 343
Decision Date

CaseChat Overview and Summary

The case of 20*20 Pty Ltd v D&G Developments Pty Ltd involved a statutory demand issued by 20*20 Pty Ltd against D&G Developments Pty Ltd, which was subsequently challenged by D&G Developments Pty Ltd. The dispute centered around whether the statutory demand could be set aside on the grounds of a genuine dispute or a genuine offsetting claim. The matter was heard in the Supreme Court of Western Australia.

The court was required to determine several legal issues, including the nature and admissibility of evidence presented at the hearing of the application to set aside the statutory demand, the meaning of a genuine dispute and a genuine offsetting claim, and the measure of damages where goods have been converted into another product and resold. The court also considered whether the applicant was limited to the materials contained in its own affidavits and whether hearsay evidence could be admissible in this context.

The court held that materials relied on at the hearing of the application to set aside the statutory demand should be admissible, and a party who fails to object to inadmissible evidence may be regarded as having waived the requirement of admissibility. The court held that the applicant is not confined to materials contained in its own affidavits, and the court will consider the question of whether there is a genuine dispute having regard to all the evidence, including the respondent's affidavits. The court found that if the company establishes a genuine dispute with respect to only one of its grounds, that is sufficient to set aside the demand. In relation to offsetting claims, the test to be applied is whether the court is satisfied that there is a serious question to be tried that an applicant has an offsetting claim. The court found that a genuine offsetting claim for the purposes of the relevant sections of the Corporations Act means a claim on a cause of action advanced in good faith, for an amount claimed in good faith.

The court found in favour of D&G Developments Pty Ltd and set aside the statutory demand.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Materials relied on at the hearing of the application to set aside the statutory demand should be admissible: Graywinter Properties v Gas & Fuel Corporation (460); Financial Solutions Australasia v Predella (314). A party who fails to object to inadmissible evidence may, however, be regarded as having waived the requirement of admissibility: Cross on Evidence (loose‑leaf) [1645] ‑ [1680]. The applicant is not confined to materials contained in its own affidavits, and the court will consider the question of whether there is a genuine dispute having regard to all the evidence, including the respondent's affidavits: Reale Bros Pty Ltd v Reale [2003] NSWSC 666; (2003) 179 FLR 427 [33]. There is debate as to whether hearsay evidence may be admissible: ORH Contracting Pty Ltd v CGS Solutions Pty Ltd [2009] WASC 273. It is not necessary to decide that point for the purpose of these proceedings, but if hearsay evidence is admissible, it must be in proper form if it is to be relied on: Westpoint Management Pty Ltd v Goakes [2002] WASCA 317. Where the debt is disputed on a number of grounds, the genuineness of each ground must be considered, unless and until one is found that raises a genuine dispute. If the company establishes a genuine dispute with respect to only one of its grounds, that is sufficient to set aside the demand. In relation to offsetting claims, the test to be applied is whether the court is satisfied that there is a serious question to be tried that an applicant has an offsetting claim: Mibor Investments v Commonwealth Bank; Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601. In the latter case, Thomas J said (605):There is little doubt that Division 3 is intended to be a complete code which prescribes a formula that requires the Court to assess the position between the parties, and preserve demands where it can be seen that there is no genuine dispute and no sufficient genuine offsetting claim. That is not to say that the Court will examine the merits or settle the dispute. The specified limits of the Court's examination are the ascertainment of whether there is a 'genuine dispute' and whether there is a 'genuine claim'.…The essential task is relatively simple - to identify the genuine level of a claim (not the likely result of it) and to identify the genuine level of an offsetting claim (not the likely result of it). In Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 [17] ‑ [18], Palmer J said:In my view, a 'claim' for the purposes of CA s459H(1) and s459H(2) means not just a cause of action, so that once a genuine cause of action for unliquidated damages is shown by a plaintiff, the Court is compelled to accept at face value the damages claimed by the plaintiff as the amount of the offsetting claim for the purpose of the calculation required by s459H(2). As has been said in Jesseron Holdings Pty Ltd v Middle East Trading Consultants (1994) 12 ACLC 490, an action for damages will often include what is described as an 'ambit claim', that is, a sum which is in excess of what the claimant realistically expects to recover.In my opinion, a genuine offsetting claim for the purposes of CA s459H(1) and s459H(2) means a claim on a cause of action advanced in good faith, for an amount claimed in good faith. 'Good faith' means arguable on the basis of facts asserted with sufficient particularity to enable the Court to determine that the claim is not fanciful. In a claim for unliquidated damages for economic loss, the Court will not be able to determine whether the amount claimed is claimed in good faith unless the plaintiff adduces some evidence to show the basis upon which the loss is said to arise and how that loss is calculated. If such evidence is entirely lacking, the Court cannot find that there is a genuine offsetting claim for the purposes of s459H(1) and s459H(2).