Building Solutions and Waterproofing Pty Ltd v Robin H Wright Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Building Solutions and Waterproofing Pty Ltd v Robin H Wright Pty Ltd [2017] QSC 110

PARTIES:

BUILDING SOLUTIONS AND WATERPROOFING PTY LTD ACN 132 264 156

(applicant)

v
ROBIN H WRIGHT PTY LTD ACN 009 424 033

(respondent)

FILE NO/S:

No 4337 of 2017

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

  Supreme Court of Queensland at Brisbane

DELIVERED ON:

8 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2017

JUDGE:

Boddice J

ORDER:

1.   I shall hear the parties as to the form of orders and costs.

CATCHWORDS:

CORPORATIONS – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – APPLICATION TO SET ASIDE DEMAND – GENERALLY – where applicant seeks to set aside statutory demand on basis of alleged offsetting claim against respondent for amount exceeding total amount of debts claimed – whether genuine dispute exists – whether debts are due and payable – whether statutory demand should be set aside

Corporations Act 2001 (Cth) s 459H, s 459J

Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2007) 63 ASCR 300
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ASCR 785
Intag Microelectronic Pty Ltd v AWA Ltd (1995) 18 ASCR 284
JJMMR Pty Ltd v LG International Corp [2003] QCA 519
John Shearer Ltd & anor v Gehl Company [1995] 60 FCR 136
NT Resorts Pty Ltd v Deputy Commissioner of Taxation (1998) 153 ALR 359
Re Morris Catering (Aust) Pty Ltd (1993) 11 ASCR 601
Re Judd; ex parte Sydney pike (1924) 24 SR (NSW) 537
Rohalo Phamaceutical Pty Ltd v RP Scherer SpA (1994) 15 ASCR 347 
Total Beverage Australia Pty Ltd v Corporate Link Australia Pty Ltd [2013] SASC 45

COUNSEL:

G W Dietz for the applicant

S B Whitten for the respondent

SOLICITORS:

Minter Ellison for the applicant

ClarkeKann Lawyers for the respondent

  1. By originating application filed 3 May 2017, the applicant seeks orders setting aside a statutory demand served on it by the respondent on 10 April 2017.  At issue is whether the applicant has an offsetting claim against the respondent for an amount that exceeds the total amount of the debts claimed in the said demand whether, in any event, a genuine dispute exists as to the amount of the debts claimed in the demand and whether the debts claimed in the demand are not presently “due and payable”. 

    Background

  2. In early 2014, the applicant was engaged by the body corporate of an apartment complex to undertake specified remedial works to the apartment building. At or around the time of the applicant’s engagement, the applicant’s director Mark Anttilla met with the respondent’s director, Robin Wright.  They discussed the performance of a project management role by the respondent. 

  3. On 14 February 2014, the respondent provided to the applicant a written document entitled “Proposal for Consultant Project Management Services to Minc”.  That proposal was never signed by the applicant.  However, on 19 February 2014, the applicant by its director sent an email “agreeing with everything…

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Details
Case
[2017] QSC 110
Decision Date

CaseChat Overview and Summary

The matter of Building Solutions and Waterproofing Pty Ltd v Robin H Wright Pty Ltd involved the applicant seeking to set aside a statutory demand issued by the respondent. The statutory demand sought payment of outstanding invoices issued by the respondent from June 2014 to March 2017. The applicant argued that it had an offsetting claim against the respondent for an amount exceeding the total claimed in the demand, and that a genuine dispute existed over the debts claimed and whether they were due and payable. The applicant also argued that any agreement to withhold payment until the resolution of a dispute with a third party, the body corporate, was not supported by any documentation and was therefore insufficient to set aside the demand.

The court was required to determine whether the applicant had established a genuine dispute over the amount of the debts claimed in the demand, whether the debts were presently "due and payable", and whether the statutory demand should be set aside. The court found that the applicant had established a valid offsetting claim which exceeded the amount claimed in the demand, and therefore the demand should be set aside. The court did not accept the applicant's assertion that an agreement had been reached to withhold payment until the resolution of a dispute with a third party, as there was no documentation to support this claim.

The court ordered that the matter would be heard as to the form of orders and costs. The applicant had successfully demonstrated that there was a genuine dispute over the amount of the debts claimed in the demand, and that the demand should be set aside. The court found that the applicant's offsetting claim was valid and of sufficient magnitude to render the substantiated amount of the claim less than the statutory minimum. The court did not accept the respondent's argument that the applicant's assertion of an agreement to withhold payment was insufficient to establish a genuine dispute.

Orders

Orders of the court

1. I shall hear the parties as to the form of orders and costs.

Background

Background to the litigation

By originating application filed 3 May 2017, the applicant seeks orders setting aside a statutory demand served on it by the respondent on 10 April 2017. At issue is whether the applicant has an offsetting claim against the respondent for an amount that exceeds the total amount of the debts claimed in the said demand whether, in any event, a genuine dispute exists as to the amount of the debts claimed in the demand and whether the debts claimed in the demand are not presently “due and payable”. Background In early 2014, the applicant was engaged by the body corporate of an apartment complex to undertake specified remedial works to the apartment building. At or around the time of the applicant’s engagement, the applicant’s director Mark Anttilla met with the respondent’s director, Robin Wright. They discussed the performance of a project management role by the respondent. On 14 February 2014, the respondent provided to the applicant a written document entitled “Proposal for Consultant Project Management Services to Minc”. That proposal was never signed by the applicant. However, on 19 February 2014, the applicant by its director sent an email “agreeing with everything basically” but requesting a change to clause F of the proposal.[1] [1] Affidavit of M Anttilla (Court Document 2), p 92. Mr Anttilla says he subsequently made an oral request in late February 2014 for the respondent to provide documentation explaining and substantiating the time charged by the respondent. No such documentation was provided by the respondent. Instead, the respondent undertook project management work for the applicant and issued monthly invoices to the applicant in relation to that work. Statutory demand The statutory demand claims amounts which were the subject of monthly invoices issued by the respondent between June 2014 and March 2017 in respect of work undertaken in the project management role for the applicant. Invoices had been rendered from February 2014. Some were paid by the applicant. The statutory demand relates to invoices which were not paid. The current applicationOffsetting claim The applicant submits that it fell into dispute with the body corporate over delays in performing the relevant remedial works. The applicant contends it suffered loss and damage of approximately $461,000 which was attributable to delays in the remedial work outside the applicant’s control and which the body corporate has refused to pay on the basis of the non-provision of prescribed notices in accordance with the works contract. The applicant contends the giving of such notices was the responsibility of the respondent. Mr Anttilla alleges he spoke to Mr Wright in May 2014 about the delays. Mr Wright assured him the delays could be dealt with at the end of the project and that the delays “had been minuted in meetings”.[2] Mr Anttilla says he asked Mr Wright to ensure that was the case. [2] Affidavit of M Anttilla sworn 23 May 2017 at [3]. The applicant contends the respondent’s failure to comply with those notice provisions was in breach of the contractual works the respondent was requested to perform for the applicant and contrary to the representations made by the respondent’s Mr Wright as to the minuting of those delays. It was also contrary to the direction of the applicant’s Mr Anttilla to ensure the delay claims could be dealt with at the end of the project.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant’s assertion that an agreement was reached between the applicant and the respondent that the amounts the subject of the statutory demand would not be paid until after finalisation of the applicant’s dispute with the body corporate is not supported by any independent, contemporaneously made documentation. It amounts to nothing more than a mere assertion. That assertion, in the circumstances, is insufficient to establish there is some other reason why the demand should be set aside. Conclusions The applicant has established there is a valid offsetting claim which is of such a magnitude that it renders the substantiated amount of the claim less than the statutory minimum. On that basis, the statutory demand must be set aside. I shall hear the parties as to the form of orders and costs.

Ratio Decidendi

Legal Principle Established

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