Airport Publications Pty Ltd v Diamond Press Holdings (Aust) Pty Ltd

[1995] FCA 395

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No.  NG 3536  of 1994
  )
GENERAL DIVISION                 )

BETWEEN:AIRPORT PUBLICATIONS PTY LIMITED

Applicant

AND:DIAMOND PRESS HOLDINGS (AUST) PTY LIMITED

Respondent

31 March 1995

REASONS FOR JUDGMENT
LOCKHART J.
     This is an application by a company to set aside a statutory demand dated 21 September 1994 and served upon it by a creditor.  The parties have resolved their differences save as to costs of this proceeding.  The statutory demand claims from the company $59,870.46, which is made up of two components: the first is the total of a series of invoices $48,457.93 and the second, a claim for interest of $11,412.53.  In assessing costs the Court must do the best it can from the material to which it has been referred and can, of course, only form a broad view of the merits of the matter, otherwise it would involve a full trial of the matter which has been settled. 

It is plain from the material in the present case that the demand asserting the figures to which I have referred could not have been sustained.  The material that I have seen shows that, as from a date which would be approximately 14 October 1994, the amount for which the company is indebted to the creditor is $23,196.40.  Subsequent correspondence between the parties reveals that the company has, in effect, conceded it owes that amount, but has made offers in the alternative which involve an assertion that it has a cross-claim but in an amount that has not been quantified.  The company also seeks to impose a term as to costs.

In an affidavit of Mr Spira, the managing director of the creditor, dated 13 December 1994, the deponent asks the Court to vary the statutory demand by reducing the sum claimed to $23,196.40, relying upon the Court's powers so to order under s. 459H(4) of the Corporations Law.  There seem to me two approaches that can be taken to the question of costs; one approach would be to order that the creditor pay the costs of the company of the proceeding up to 14 October 1994.  That date is selected because, from the evidence filed by the company, it is the date on which the company in substance, concedes the debt of $23,196.40.

If that were so then the order of the Court could be that, because there was no plain unequivocal offer to pay that amount to the creditor, the creditor should have the costs from that date on. 

However, I think the proper order for costs is not that in all the circumstances.  As I say, it is plain that the creditor could not have succeeded to sustain the whole amount claimed in the statutory demand.  It is plain also that the company, in substance, concedes $23,196.40, but in view of the fact that there was no unequivocal offer to discharge its obligations in that sum until more recent times, I think the fair order for costs is that there be no order as to the costs of any party of this proceeding and the Court makes that order.

I should say that any impression that I have expressed as to the merits of the case is based by applying the test of whether there is a serious question to be tried with respect to the amount of the indebtedness alleged in the demand.  It was not intended to be a definitive statement of who owes what in relation to the alleged claim.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated:  31 March  1995

Solicitors for the Applicant :        Esplins
Counsel for the Respondent   :        Mr Gleeson
Solicitors for the Respondent     :        Parry Carroll Kanjian
Date of Hearing                  :        31 March 1995
Date of Judgment            :        31 March 1995