Blue Whale Farm Plantation Pty Ltd v CORRIB Investments Pty Ltd
[2012] WASC 496
BLUE WHALE FARM PLANTATION PTY LTD -v- CORRIB INVESTMENTS PTY LTD [2012] WASC 496
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 496 | |
| Case No: | COR:143/2012 | 5 DECEMBER 2012 | |
| Coram: | MASTER SANDERSON | 19/12/12 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BLUE WHALE FARM PLANTATION PTY LTD (ACN 118 718 666) CORRIB INVESTMENTS PTY LTD (ACN 115 244 909) |
Catchwords: | Corporation law Application to set aside statutory demand Turns on own facts |
Legislation: | Nil |
Case References: | Giacci Holdings Pty Ltd v Giacci [2007] WASC 187 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CORRIB INVESTMENTS PTY LTD (ACN 115 244 909)
Defendant
Catchwords:
Corporation law - Application to set aside statutory demand - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr D K Cooper
Defendant : Mr M P L NoonanCrowe
Solicitors:
Plaintiff : Cooper Legal Pty Ltd
Defendant : Valenti Lawyers
Case(s) referred to in judgment(s):
Giacci Holdings Pty Ltd v Giacci [2007] WASC 187
(Page 3)
1 MASTER SANDERSON: This is the plaintiff's application to set aside a statutory demand. The application is supported by an affidavit of Daniel Joseph Avila sworn 17 September 2012. Mr Avila is a director of the plaintiff. Appearing as annexure DJA7 to Mr Avila's affidavit is a copy of the statutory demand. The amount of the demand is $19,937.50. In the schedule to the demand under the heading 'Description of the Debt' there appears the following:
Money due and owing to the Creditor being for works to form and grade tracks at Lot 449 Milyeannup Coast Road, which amount was detailed in an invoice number 1170 (Invoice) dated 13 May 2009 sent by the Creditor to the Debtor company. Attached hereto is a copy of the Invoice dated 13 May 2009.
2 A copy of the invoice is indeed attached to the statutory demand. It shows a cost for mobilising and demobilising a loader in an amount of $1,250 and an amount for 125 hours use of the loader amounting to $16,875. Adding in the GST this makes up the amount of the statutory demand.
3 There is no real dispute between the parties as to the relevant facts. They can be summarised as follows. The property where the alleged work was undertaken belongs to six parties including the plaintiff and the defendant. On 12 April 2006 Mr Avila had a discussion with a Mr Shane Patrick Farrell, a director of the defendant. The two men discussed creating tracks on the land in fulfilment of obligations set out in a Co-Owners Deed. During the course of the discussion Mr Avila and Mr Farrell agreed $25,000 was an appropriate budget for the creation of the tracks. Mr Avila then authorised the defendant to complete the work. This was duly done. For reasons which do not emerge from the evidence an invoice for the works was not forwarded to the plaintiff until May 2009. The invoice was not paid and that led to the issue of the statutory demand.
4 In alleging there is a genuine dispute as to the debt the plaintiff raises four matters. First, it is said the debt is statute barred under the Limitation Act 2005 (WA). It was submitted the contract was entered into in April 2006, the work was performed at or about that time, and as six years have passed the defendant cannot now claim payment.
5 There is no doubt a claim a debt is statute barred can provide the basis for saying there is a genuine dispute in relation to the debt: see Giacci Holdings Pty Ltd v Giacci [2007] WASC 187. But there are two difficulties with the plaintiff's submission. First, by requesting an invoice
(Page 4)
- in 2009 the plaintiff acknowledged the existence of the debt. Further, it is difficult to see any debt arose before the invoice was issued. There may have been a budget for the work and an agreement it would be carried out, but unless and until the amount of the claim was quantified no debt could arise.
6 In my view there is no genuine dispute the debt is statute barred under the Limitation Act.
7 Second, it is said the debt is a claim in quantum meruit and the plaintiff disputes the reasonableness of the claimed sum. This is not the appropriate forum to discuss the doctrine of restitution for unjust enrichment. However, this work was undertaken pursuant to an agreement between the parties. It is simple enough to imply a term in the agreement; the defendant would be paid a reasonable fee for its services, provided that fee was not greater than $25,000. There was no evidence led by the plaintiff to establish the amount claimed was not reasonable. In my view there can be no suggestion of a dispute when the plaintiff has not led any evidence to that effect.
8 Third, it was said the alleged debt was owing by several parties. That claim is not borne out by the evidence. The works were carried out at the request of the plaintiff's director. At the time it was the plaintiff which was responsible for the land. There can be no suggestion the debt was incurred by some party or parties other than the plaintiff.
9 Finally, it is alleged the debt is not yet owing. As I understand the plaintiff's argument it is said payment of the debt was in some way conditional upon the ultimate subdivision of the land. There is no evidence to support that proposition and it should be rejected.
10 I am satisfied the application to set aside the statutory demand ought be dismissed. The plaintiff ought pay the respondent's costs of the application including the reserved costs.
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