AUSWORLD Corporation Pty Ltd v Lian
[2013] WASC 410
•15 NOVEMBER 2013
AUSWORLD CORPORATION PTY LTD -v- LIAN [2013] WASC 410
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 410 | |
| 15/11/2013 | |||
| Case No: | COR:194/2013 | 29 OCTOBER 2013 | |
| Coram: | MASTER SANDERSON | 29/10/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Demand set aside | ||
| B | |||
| PDF Version |
| Parties: | AUSWORLD CORPORATION PTY LTD (ACN 109 601 247) JUDY QUEK NGOH LIAN |
Catchwords: | Corporations Act 2001 (Cth) Application to set aside statutory demand Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
JUDY QUEK NGOH LIAN
Defendant
Catchwords:
Corporations Act 2001 (Cth) - Application to set aside statutory demand - Turns on own facts
Legislation:
Nil
Result:
Demand set aside
Category: B
Representation:
Counsel:
Plaintiff : Mr A H K Lai
Defendant : In person
Solicitors:
Plaintiff : Tang Legal
Defendant : In person
Case(s) referred to in judgment(s):
Nil
1 MASTER SANDERSON: This is the plaintiff's application to set aside a statutory demand. The defendant appeared in person. The matter was first called on on 15 October 2013. At that time the defendant indicated she required the assistance of an interpreter. This was despite the fact the affidavit accompanying the statutory demand was in English and had been signed by the defendant. Nonetheless I adjourned the matter so that the defendant could arrange for the services of an interpreter and file any other evidence she thought would assist her case.
2 The matter came back on for hearing on 29 October 2013. The defendant did not have the assistance of an interpreter apparently because she thought such services would be arranged by the court. It is not clear how she could have reached that conclusion. In any event the plaintiff was anxious to press on with the application. I invited the defendant to make any submissions she thought would assist her case. After hearing argument I set aside the statutory demand. To be fair to the defendant I indicated I would publish written reasons for my decision. These are those reasons.
3 A copy of the statutory demand appears as annexure KLW1 to the affidavit of Kum Leng Wong sworn 25 September 2013 and filed in support of the application to set aside the demand. The form of the purported statutory demand does not conform with the requirements of Form 509H found in sch 2 of the Corporations Regulations 2001 (Cth). The document which seems to constitute the demand is difficult to follow. Perhaps the best summary of the claim made by the defendant is found in pars 3 - 6 of the affidavit accompanying the statutory demand. Those paragraphs are in the following terms:
3 I am one of the three Signatories as Lessee or Landlord of the Premises known as Unit 8, 752, North Lake Road, South Lake in the State of Western Australia prepared by Sussanna Ho Legal Services of Unit 8, 182, Eight Avenue, INGLEWOOD WA 6052 (Phone: 08 9471 8033, Fax: 08 94718055, Email: [email protected] bearing ref: 2009/187Lea (the Lease).
4 The Lease is signed by me as a One-Third Landlord, Ms. Chew Yoong WONG as (the Second One Third Landlord) and Kum Leng WONG (the Third One-Third Landlord) and AUSWORLD CORPORATION PTY LTD ACN 109 601 247 ABN: 91 109 601 247 (the Parties to the Lease).
5 I have made repeated demands for my one third share of the Rentals due and owing to me on the Lease from the Tenant which is a body corporate owned by one of the Third Parties to the Lease, namely Mr. Kum Leng WONG but to no avail. The details of the Debt owing to me in the sum of Rental Arrears in the sum of $56,333.16 (Dollars Fifty Six Thousand three hundred and thirty three dollars and sixteen cents is due owing and payable by the Debtor to me for the past 52 months beginning from 1.5.2009 till the 1.9.2013 excluding interests (the Amount Demanded). The factual circumstances relating to this demand is contained in my letter dated the same day and marked as Annexure JL1.
6 The total $56,333.16 of the debts mentioned in the statutory demand is due and payable by the debtor company.
4 Under s 459J(2) a statutory demand is not to be set aside merely because of a defect. It will only be set aside when a substantial injustice will be caused if it is not set aside: see s 459J(1)(a). In this case it is doubtful whether there is in existence a statutory demand at all. But if what was served on the plaintiff can be characterised as a statutory demand it is so defective it would warrant being set aside. The plaintiff could not ascertain how the sum claimed was calculated and how the alleged debt arose.
5 Moreover the evidence of Mr Wong makes it plain that there is a genuine dispute. The background to this dispute is set out in pars 7 - 20 of Mr Wong's affidavit. The position can be summarised as follows. In May 2009 the plaintiff as tenant entered into a lease agreement with the owners of premises located at Unit 8, 752 Northlake Road, South Lake. The owners of the premises all of whom executed the lease as landlords are the defendant, Mr Chew Yoong Wong and Mr Wong, the deponent of the affidavit. The lease included a provision where there were two or more landlords any action in relation to the lease must be undertaken jointly.
6 Since May 2009 the plaintiff has carried on a restaurant business from the leased premises. Mr Wong says since the inception of the lease rent has been paid for the premises. He produces bank statements which support that claim. He further points out no demand for unpaid rent had been received from the landlords.
7 It is not the purpose of a statutory demand procedure to determine the merits of any claim which may exist as between the plaintiff and the defendant. All a plaintiff need establish is there is a genuine dispute. The uncontradicted evidence of the plaintiff in this matter, through Mr Wong, clearly establishes that is the case. Accordingly even if the demand were in proper form there are grounds for setting it aside under s 459G of the Corporations Act.
8 Accordingly I set aside the statutory demand and order the defendant pay the plaintiff's costs of the application including the reserved costs.
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