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
Keep reading for free
Create a free CaseChat account to read 20*20 Pty Ltd v D&G Developments Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2009] WASC 343
- Decision Date
CaseChat Overview and Summary
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).