ACEWISE Investments Pty Ltd v Peters

[2008] WASC 199

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ACEWISE INVESTMENTS PTY LTD -v- PETERS [2008] WASC 199

CORAM:   MASTER SANDERSON

HEARD:   1 SEPTEMBER 2008

DELIVERED          :   18 SEPTEMBER 2008

FILE NO/S:   COR 88 of 2008

BETWEEN:   ACEWISE INVESTMENTS PTY LTD (ACN 120 176 918)

Plaintiff

AND

RONALD STEPHEN PETERS
Defendant

FILE NO/S              :COR 89 of 2008

BETWEEN              :CAHILL CORPORATION PTY LTD (ACN 095 694 974)

Plaintiff

AND

RONALD STEPHEN PETERS
Defendant

Catchwords:

Corporations law - Application to set aside statutory demand - Turns on own facts

Legislation:

Nil

Result:

Demand set aside

Category:    B

Representation:

COR 88 of 2008

Counsel:

Plaintiff:     Mr P A Nevin

Defendant:     Mr G G Wells

Solicitors:

Plaintiff:     Taylor Smart

Defendant:     Gavin Wells

COR 89 of 2008

Counsel:

Plaintiff:     Mr P A Nevin

Defendant:     Mr G G Wells

Solicitors:

Plaintiff:     Taylor Smart

Defendant:     Gavin Wells

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

Nil

1. MASTER SANDERSON:  These two matters were heard together.  The facts in each case were identical.  The plaintiff was seeking to set aside a statutory demand.  At the conclusion of argument, I indicated that I would set aside both demands and I would publish my reasons for doing so at a later date.  These are those reasons.

2. Before dealing with the applications in detail, I should mention that on the first return date, counsel for the defendant sought an order for discovery against the plaintiff.  After considering the matter, I refused the order.  I indicated at the time that I would publish my reasons for doing so and these reasons will deal with that issue.

3. The applications were supported by an affidavit of Davide Bianchi sworn 4 July 2008.  Mr Bianchi is a director of the plaintiff in COR 88 of 2008.  That company, in partnership with the plaintiff in COR 89 of 2008, runs a restaurant known as 'Lyrebird Bathers Beach Fremantle'.  It is common ground that the defendant was contracted to perform certain building works on the premises.  Having completed those works, the defendant rendered an invoice in an amount of $22,562.32.  It is that amount that is the subject of the statutory demand.

4. There is some dispute between the parties as to what occurred after the invoice was rendered.  Essentially, the defendant says that the plaintiffs never raised any dispute about the amount of the invoice, nor did they question the quality of the workmanship.  The plaintiffs say that both of these matters were in issue.  However that may be, the plaintiffs say that on 20 February 2008, they wrote to the defendant in the following terms (see annexure DB8 to Mr Bianchi's affidavit):

   This letter is to point out our disgust and bitter disappointment as per our conversation last week relating to works carried out at 47 Mews Road, Fremantle.  We do not accept your invoice of $26K!  We believe these works should have been completed for between $10K and $14K based on past performance.  We agree to pay you $12160.00 being full and final payment.  If this amount is acceptable to yourself please deposit the cheque into your account to finalise the matter.

5. It is the defendant's case that this letter was never received by him.  He acknowledges that he received the cheque from Acewise Investments Pty Ltd in the amount of $12,160.  He says that this was given to him in part payment of the invoice rendered and without any dispute as to the amount of the invoice being raised.  He deposited the cheque and it was dishonoured.  He claims he is still owed the full amount claimed in the invoice.

6. The reason why counsel for the defendant sought discovery was, he said, to establish that there were no facsimile transmission reports held by the plaintiffs.  That lack of evidence, it was said, would show that the letter annexed to Mr Bianchi's affidavit was 'a fraud' and that there was no defence to the claim.  To put that submission in that way is to show immediately why the application was refused.  The failure to discover a document may or may not be relevant in the context of a hearing as to the merits of the dispute.  But in an application to set aside a statutory demand, it could not, in and of itself, provide sufficient grounds to set aside the demand.

7. Reduced to its essentials, the defendant was asking me not to believe Mr Bianchi on his oath.  While there may be circumstances where evidence on an application such as this is so inherently improbable that it can be rejected, this is not one of those cases.  To make a finding on the credibility of a deponent to an affidavit as submitted by the defendant is not an option.  Mr Bianchi's evidence must be accepted at face value.

8. Once that point is reached, it is clear that there is a genuine dispute about this debt.  It may be that the defendant's claim has been compromised by agreement and his remedy now is to claim on the plaintiffs for the dishonoured cheque.  It is not my function to make any final ruling on that question.  But I was satisfied that there was a genuine dispute on this issue and that accordingly the demands ought be set aside.

9. I will give the parties the opportunity to make submissions on the form of the orders and as to costs.