Ausco Modular Pty Ltd v Corporate Sports Australia Pty Ltd

[2012] WASC 283

AUSCO MODULAR PTY LTD -v- CORPORATE SPORTS AUSTRALIA PTY LTD [2012] WASC 283

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 283
Case No:	COR:64/2012	Heard:	ON THE PAPERS
Coram:	MASTER SANDERSON	Delivered:	9/08/12
No of pages:	4	Judgment Part:	1 of 1
Result:	No order as to costs
Category:	B
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Parties:	AUSCO MODULAR PTY LTD CORPORATE SPORTS AUSTRALIA PTY LTD
Catchwords:	Corporations law Costs on application to set aside statutory demand where application conceded Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : AUSCO MODULAR PTY LTD -v- CORPORATE SPORTS AUSTRALIA PTY LTD [2012] WASC 283 CORAM : MASTER SANDERSON HEARD : ON THE PAPERS DELIVERED : 9 AUGUST 2012 FILE NO/S : COR 64 of 2012 BETWEEN : AUSCO MODULAR PTY LTD

Plaintiff

AND

CORPORATE SPORTS AUSTRALIA PTY LTD
Defendant

Catchwords:

Corporations law - Costs on application to set aside statutory demand where application conceded - Turns on own facts

Legislation:

Nil

Result:

No order as to costs

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr D B Shaw
Defendant : Mr J P Cook

Solicitors:

Plaintiff : DLA Piper Australia
Defendant : Mendelawitz Morton

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

Nil

(Page 3)

1 MASTER SANDERSON: This was the plaintiff's application to set aside a statutory demand. The defendant, after a number of appearances, consented to the demand being set aside. The remaining question is who should pay the costs in relation to the application.

2 The statutory demand is dated 3 April 2012 and was sent by ordinary post with a covering letter dated 3 April 2012. The plaintiff's originating process and main supporting affidavit were dated 2 May 2012. That is, 29 days after the posting of the demand. The time limited for making an application to set aside a statutory demand is 21 days and there is no power to extend that time limit.

3 On the face of it, then, the application was made well out of time. The defendant says it was entitled to test the issue of timing of the service of the demand. On the face of it, that is a reasonable proposition.

4 The plaintiff says the demand was received by it on 11 April 2012. The application to set aside the statutory demand was supported by an affidavit of Simon Richard Wade Holtby, sworn 2 May 2012. By par 7 of the affidavit, Mr Holtby says on 11 April 2012, he was notified by the Queensland office of the plaintiff the statutory demand had been received. Mr Holtby attaches, as annexure SRWH 3, a copy of the email notifying him of the receipt of the demand. That email says the demand was 'received in our office today'. It would seem clear, then, the affidavit in support of the application provided clarity as to the date upon which the demand was received.

5 The defendant clearly remained suspicious as to why it should have taken so long for the statutory demand to arrive at the offices of the defendant. It was posted on Tuesday, 3 April 2012 and was not apparently received by the plaintiff until Wednesday, 11 April 2012. Of course, because the matter was settled, no evidence was led as to when delivery in the ordinary course of post might have been expected. But it is not difficult to understand why the defendant was suspicious as to the accuracy of the plaintiff's evidence as to dates.

6 The defendant also makes the point the evidence given by Mr Holtby is hearsay. The matter was eventually resolved when an affidavit if Michelle Kay Osborn of 22 May 2012 was lodged. Ms Osborn says she collected the mail from her pigeonhole on 11 April 2012 and the letter from the defendant's solicitors and the statutory demand were among the correspondence. She does not say what the process was for collecting mail or who was responsible for initially receiving the mail and

(Page 4)

distributing it to various persons. So, even with the benefit of Ms Osborn's affidavit, the defendant remained suspicious.

7 The affidavit of Mr Holtby relies upon what he says is a genuine dispute as to the debt the subject of the demand. It is unnecessary to go into detail as to the basis of the dispute. The defendant has conceded the application and, by implication at least, has conceded there is a genuine dispute. To that extent, the plaintiff has been successful and, prima facie, would be entitled to its costs.

8 However, in my view, the defendant in this case has behaved appropriately. Given the circumstances, it was entitled to explore the question of whether or not the originating process was issued within 21 days of the service of the statutory demand. It was entitled to call for an affidavit from Ms Osborn. By conceding the application thereafter, even in the face of an affidavit which might, on one view, have been regarded as deficient, reflected a realistic approach to applications of this sort.

9 On balance, then, I am satisfied the proper order is there be no order as to costs. The orders reserving costs of the various appearances will be discharged. The orders in relation to the originating process will be:

1. The statutory demand be set aside.

2. There be no order as to costs.