Anozira Pty Ltd v Hunt - [2002] ACTCA 10

ANOZIRA PTY LTD v PETER ANTHONY URQUHART HUNT [2002] ACTCA 10 (12 December 2002)

CATCHWORDS

COMPANY LAW – application to set aside statutory demand – whether genuine dispute as to debt – debt founded on Deed – whether contentions that Deed procured by unconscionable
conduct or duress sufficient to raise triable issue.

Corporations Act 2001, s 459G, s 459H(1), s 459J

Cornick v Brains Master Corporation (1996) 14 ACLC 269
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Universe Tankships Inc of Monrovia v International Transport Workers Federation and Others [1983] 1 AC 366
Equiticorp Financial Services Ltd (NSW) v Equiticorp Financial Services Ltd (NZ) Ltd (1992) 29 NSWLR 260
Barton v Armstrong [1976] AC 104

Pao On v Lau Yiu Long [1980] AC 614

Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Commercial Bank of Australia v Amadio (1983) 151 CLR 447
Louth v Diprose (1992) 175 CLR 621
Garcia v National Australia Bank Ltd (1998) 194 CLR 395

Atiyah, “Economic Duress and the ‘Overborne Will’” (1982) 98 LQR 197

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 6 - 2002
No. SC 301 of 2002

Judges: Crispin P, Gray and Madgwick JJ
Court of Appeal of the Australian Capital Territory
Date: 12 December 2002

IN THE SUPREME COURT OF THE       )          No. ACTCA 6 - 2002
  )          No. SC 301 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANOZIRA PTY LTD
Appellant

AND:PETER ANTHONY URQUHART HUNT
Respondent

ORDER

Judges:  Crispin P, Gray and Madgwick JJ
Date:  12 December 2002
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

IN THE SUPREME COURT OF THE       )          No. ACTCA 6 - 2002
  )          No. SC 301 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANOZIRA PTY LTD
Appellant

AND:PETER ANTHONY URQUHART HUNT
Respondent

Judges:  Crispin P, Gray and Madgwick JJ
Date:  12 December 2002
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal against a decision of the Master dismissing an application to set aside a statutory demand pursuant to s 459G of the Corporations Act 2001. The demand was made by the respondent on 6 May 2002 for payment of a debt of $90,000 said to be due under a deed of release dated 25 January 2002 (“the deed”). A similar demand was made by his wife, Kathleen Anne Mathews Hunt, for payment of a debt of $60,000 said to be due under the same deed. The appellant applied to have both statutory demands set aside and the applications were heard together. As the Master observed in his Reasons for Judgment the issues in both cases were common save for the quantum of the debt.

A number of procedural points…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] ACTCA 10
Decision Date: 12 December 2002

CaseChat Overview and Summary

Anozira Pty Ltd (the applicant) sought to set aside a statutory demand issued by Hunt (the respondent). The debt underpinning the statutory demand was founded on a deed. Anozira contended that the deed was procured by unconscionable conduct.

The primary legal issue before the court was whether there was a genuine dispute as to the existence or amount of the debt claimed in the statutory demand. This required the court to consider Anozira's assertions that the deed was entered into under unconscionable circumstances, which, if established, would give rise to a genuine dispute.

The court found that Anozira's contentions regarding unconscionable conduct did not raise a genuine dispute sufficient to set aside the statutory demand. The court applied the principles governing applications to set aside statutory demands, which require a genuine dispute to be demonstrated, not merely a bare assertion of unconscionability. The court was not satisfied that the alleged unconscionable conduct, as presented, created a real question as to the validity of the debt.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

The appeal be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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