BRANKSON Pty Ltd v Colonial First State Property Ltd
[2001] WASC 127
BRANKSON PTY LTD -v- COLONIAL FIRST STATE PROPERTY LTD [2001] WASC 127
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 127 | |
| Case No: | COR:82/2001 | 9 MAY 2001 | |
| Coram: | MASTER SANDERSON | 24/05/01 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | BRANKSON PTY LTD (ACN 080 297 758) COLONIAL FIRST STATE PROPERTY LTD (ACN 006 464 428) |
Catchwords: | Corporations Law Application to set aside statutory demand Turns on own facts |
Legislation: | Corporations Law, s 459G, s 459H(1)(b), s 459H(2) |
Case References: | Edge Technology Pty Ltd v Lite-On Technology Corporation [2000] 18 ACLC 576 ACCC v CG Berbatis Holdings Pty Ltd, unreported; FCA; 26 September 2000 ACCC v Leelee Pty Ltd, unreported; FCA; 20 August 1999 ACCC v Samton Holdings Pty Ltd, unreported; FCA; 29 November 2000 ACCC v Simply No-Knead (Franchising) Pty Ltd, unreported; FCA; 22 September 2000 ACU v CG Berbatis Holdings Pty Ltd [2000] FCA 1376 Begbie v State Bank of NSW Ltd (1994) ATPR 41-288 Carpet Call Pty Ltd v Chan (1987) ATPR Digest 46-025 Cempro Pty Ltd v Dennis M Brown Pty Ltd (1994) 12 ACLC 501 Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 12 ACLC 334 Commercial Bank of Australia v Amadio (1983) 43 ALR 402 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACLC 669 First State Computing Pty Ltd v Kyling (1995) 13 ACLC 939 Jarpab Pty Ltd v Mark Winger (t/a Bolden Haulage) (1994) 12 ACLC 688 Jesseron Holdings v Middle East Trading Consultants (1994) 12 ACLC 490 John Holland Construction Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 12 ACLC 716 Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACLC 1062 Multiservice Bookbinding Ltd v Marden (1979) Ch 84 Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601 Rohalo Pharmaceutical Pty Ltd v RP Scherer SpA (1995) 13 ACLC 94 Scanhill Ltd v Century 21 Australasia Pty Ltd (1994) 12 ACLC 111 Scolaro's Concrete Constructions Pty Ltd v Schiavello Commercial Interiors (Vic) Pty Ltd, unreported; 8 March 1996 Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 15 ACLC 1001 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
COLONIAL FIRST STATE PROPERTY LTD (ACN 006 464 428)
Defendant
Catchwords:
Corporations Law - Application to set aside statutory demand - Turns on own facts
Legislation:
Corporations Law, s, 459G, s 459H(1)(b), s 459H(2)
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr S G Leslie
Defendant : Mr L D Ayres
Solicitors:
Plaintiff : Wilson & Atkinson
Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Edge Technology Pty Ltd v Lite-On Technology Corporation [2000] 18 ACLC 576
Case(s) also cited:
ACCC v CG Berbatis Holdings Pty Ltd, unreported; FCA; 26 September 2000
ACCC v Leelee Pty Ltd, unreported; FCA; 20 August 1999
ACCC v Samton Holdings Pty Ltd, unreported; FCA; 29 November 2000
ACCC v Simply No-Knead (Franchising) Pty Ltd, unreported; FCA; 22 September 2000
ACU v CG Berbatis Holdings Pty Ltd [2000] FCA 1376
Begbie v State Bank of NSW Ltd (1994) ATPR 41-288
Carpet Call Pty Ltd v Chan (1987) ATPR Digest 46-025
Cempro Pty Ltd v Dennis M Brown Pty Ltd (1994) 12 ACLC 501
Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37
Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 12 ACLC 334
Commercial Bank of Australia v Amadio (1983) 43 ALR 402
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACLC 669
First State Computing Pty Ltd v Kyling (1995) 13 ACLC 939
Jarpab Pty Ltd v Mark Winger (t/a Bolden Haulage) (1994) 12 ACLC 688
Jesseron Holdings v Middle East Trading Consultants (1994) 12 ACLC 490
John Holland Construction Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 12 ACLC 716
(Page 3)
Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACLC 1062
Multiservice Bookbinding Ltd v Marden (1979) Ch 84
Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601
Rohalo Pharmaceutical Pty Ltd v RP Scherer SpA (1995) 13 ACLC 94
Scanhill Ltd v Century 21 Australasia Pty Ltd (1994) 12 ACLC 111
Scolaro's Concrete Constructions Pty Ltd v Schiavello Commercial Interiors (Vic) Pty Ltd, unreported; 8 March 1996
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 15 ACLC 1001
(Page 4)
1 MASTER SANDERSON: This is the plaintiff's application to set aside a statutory demand. The application is brought under s 459G of the Corporations Law. The plaintiff says that it has an offsetting claim greater than the amount the subject of the statutory demand. The dispute therefore falls to be determined pursuant to s 459H(1)(b).
2 The amount claimed in the statutory demand is $24,193.46. The defendant says it is owed this amount for unpaid rent and outgoings pursuant to a lease of premises at 197 St George's Terrace, Perth. The plaintiff does not dispute the amount of the debt or the basis upon which it is claimed. For the purposes of s 459H(2) the sum of $24,193.46 is the "admitted total".
3 The plaintiff's application is supported by two affidavits sworn by Charles Frederick Stanger, the first sworn 16 March 2001 and the second sworn 4 May 2001. In these affidavits Mr Stanger acknowledges that the plaintiff leased the St George's Terrace premises from the defendant. The plaintiff operated the premises as serviced offices which it rented out on a monthly basis to a variety of tenants. The premises were partitioned and the offices were charged to the tenants on a square metre rate. At the time the plaintiff entered into the lease agreement with the defendant the premises were already partitioned. The partitioning was not installed by the defendant.
4 In par 11 through to par 16 of his affidavit of 16 March 2001 Mr Stanger sets out what he says were difficulties with the airconditioning of the premises. In essence it is said that the rooms on the western side of the building were not adequately airconditioned and as a consequence were unsatisfactory for tenancy because they were too hot and uncomfortable. Mr Stanger says that he regards this as a breach of the defendant's covenant of quiet enjoyment (cl 14.1 of the lease). He says that a number of complaints were made to the defendant's agents but no steps were taken to rectify the problem. He concludes as follows (par 16):
"As a consequence of the state of the airconditioning it is my belief the plaintiff lost about $108,000. That sum is calculated as follows:
- 16.1 approximately area, that could not be let 100 square metres
16.2 Average monthly rental $45 per month
16.3 Lost income $45.00 per month
(Page 5)
- 16.4 Lost income over 2 years $108,000.00"
- This is the full extent of the detail given by the plaintiff of its offsetting total.
5 The defendant filed an affidavit of Edison John Shere sworn 19 April 2001 in opposition to the application to set aside the statutory demand. In his affidavit Mr Shere takes issue with Mr Stanger's assertion that complaints were made as to the airconditioning in the premises and disputes that in fact there was any such difficulty. This dispute of fact can, for the purposes of this application, be put to one side. For present purposes it is enough to focus on what is said by Mr Stanger.
6 In my view the allegations contained in Mr Stanger's affidavit are mere assertion. I accept that there may have been some difficulty with the airconditioning. That seems to be borne out by the report of Integrated Airconditioning which appears as annexure "CFS 9" to the affidavit of Mr Stanger sworn 4 May 2001. But the claim in Mr Stanger's first affidavit that the plaintiff suffered losses of $108,000 is not supported by any evidence. There is no factual basis contained in the affidavit for the assertion that 100 square metres of the premises could not be let. It is not clear whether the 100 square metres covers a number of offices down the western side of the building or whether other offices are included in the area it is said could not be let. No evidence is provided of what efforts were made to let this area, what complaints were made by those who did lease the area or whether perhaps a decision was taken not to lease the area and if so, what information provided the foundation for that decision. Furthermore it is said that the area could not be let for a full period of two years. It may well be the case that during summer the western side of the building did heat up so that the airconditioning was inadequate. But conditions vary throughout the year. There is no evidence at all as to whether or not occupation was possible through the cooler months of the year. While it is not for a plaintiff in an application such as this to produce detailed evidence such as would prove its case in court, some detail, or precis of the matters to be relied upon must be provided. That has not been done in this case.
7 In assessing whether there is an offsetting claim, the question to be asked is whether the claim is bona fide, real and not spurious. There have been any number of decisions dealing with this question and the authorities are conveniently collected in the judgment of Santow J in Edge Technology Pty Ltd v Lite-On Technology Corporation [2000] 18 ACLC 576 at 580. There is nothing to be gained by me repeating what his Honour had to say in that decision. It is enough if I say that I am not
(Page 6)
- satisfied based upon the evidence filed in support of this application that this aspect of the dispute is bona fide. In my view it is spurious and does not warrant further investigation.
8 The plaintiff relies on a further offsetting claim. As I understand the plaintiff's argument it is said that the lease which was terminated by the defendant gives rise to a claim for unconscionable conduct. How that claim is founded is not entirely clear either by reference to the written or oral submissions. Reference was made in the plaintiff's written submissions to s 51AA, s 51AB and s 51AC of the Trade Practices Act. Further, it was submitted that the very fact the defendant terminated the lease was unconscionable conduct - this despite the fact that it was accepted that the lease had been terminated in accord with the lease agreement. It was the plaintiff's position that if the lease had not been terminated it would have been possible to sell the business operated from the premises for an amount of $150,000. After the termination of the lease the plaintiff was only able to recover an amount of about $18,000, presumably from the sale of fixtures and fittings.
9 I am not satisfied that the evidence on this issue gives rise to any offsetting claim. In my view what is said by Mr Stanger is nothing more than assertion. Furthermore there is no evidence whatever to support the assertion that the plaintiff would have received $150,000 on sale of the business as a going concern. No attempt is made to justify this figure. The evidence is not such as to justify $150,000 being accepted as an offsetting total within the provisions of s 459H(2).
10 In the circumstances I am satisfied that the application ought be dismissed. I will hear the parties as to the form of order and as to costs.
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