CAPITIS Group Pty Ltd v Jones Lang LaSalle (NSW) Pty Ltd

[2009] WASC 362

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CAPITIS GROUP PTY LTD -v- JONES LANG LASALLE (NSW) PTY LTD [2009] WASC 362

CORAM:   MASTER SANDERSON

HEARD:   19 NOVEMBER 2009

DELIVERED          :   7 DECEMBER 2009

FILE NO/S:   COR 190 of 2009

BETWEEN:   CAPITIS GROUP PTY LTD (ACN 106 608 995)

Plaintiff

AND

JONES LANG LASALLE (NSW) PTY LTD (ACN 002 851 925)
Defendant

Catchwords:

Corporations law - Application to set aside statutory demand on basis of genuine dispute - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M F Dwyer

Defendant:     Mr J D MacLaurin

Solicitors:

Plaintiff:     Mendelawitz Morton

Defendant:     Marque Lawyers

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

Nil

1. MASTER SANDERSON:  This is the plaintiff's application to set aside a statutory demand.  A copy of the demand appears as annexure PCN2 to the affidavit of Paul Clayton Nash sworn 1 October 2009 and filed in support of the application.  The amount demanded is $37,943.05.  The plaintiff says there is a genuine dispute as to the debt.  On that basis it says the demand ought be set aside.  The defendant denies there is any dispute as to the debt, genuine or otherwise, and says the application ought be dismissed. 

2. The summary of the facts which follows is taken from Mr Nash's affidavit.  Nash Investments (WA) Pty Ltd (Nash Investments) is the registered proprietor of a property known as Suite 125 Jones Bay Wharf, Pirrama Road, Pyrmont, New South Wales (the property).  Mr Nash is the sole director of Nash Investments.  The property is a two‑storey commercial building.  Nash Investments lets one floor of the property to the plaintiff and the other floor to Corporate Sports Australia Pty Ltd (Corporate Sports Australia).  Mr Nash is a director of Corporate Sports Australia.  Both the plaintiff and Corporate Sports Australia are in the business of providing corporate hospitality services. 

3. Towards the end of 2008 business activity for both companies was declining.  Mr Nash decided it was in the best interests of Corporate Sports Australia, the plaintiff and Nash Investments if a new tenant could be found for the property.  Mr Christopher Darlison, the general manager of the plaintiff, was assigned the task of finding a new tenant.  Mr Darlison contacted the defendant.  The defendant carries on business as a leasing agent.  Mr Darlison spoke with Mr Bechara of the defendant.  The plaintiff and the defendant then entered into an agreement in writing entitled Sole Co‑ordinating Leasing Agency Agreement (the Leasing Agreement).  A copy of the Leasing Agreement appears as annexure PCN7 to Mr Nash's affidavit.  I will have more to say about the Leasing Agreement in due course. 

4. On or about November 2008 Mr Bechara introduced Online Marketing Group Pty Ltd (OMG) as a prospective tenant of the property.  After showing some interest in the property, OMG declined to enter into a lease.  Mr Darlison then contacted OMG direct.  OMG indicated it had decided not to take up the lease because it was able to obtain cheaper premises.  Negotiations followed.  Eventually OMG entered into a lease of the property.  The defendant then issued an invoice claiming that it was entitled to a fee under the Leasing Agreement because it had introduced OMG to the plaintiff.  The plaintiff declined to pay the invoice.  The statutory demand followed.

5. The Leasing Agreement nominates the plaintiff as 'Principal' and the defendant as 'Agent'.  By cl 1.1 the plaintiff as principal warrants that it has authority to enter into the Leasing Agreement.  Clause 1.2 deals with the term of the Leasing Agreement.  Clause 1.2.1 says that the agreement continues indefinitely from month to month until '… the Principal's interest in the Property is leased'. 

6. So far as this case is concerned, the reference to the 'Principal's interest in the Property' is a mistake.  The principal has no interest in the property.  The property is owned by Nash Investments.  This misstatement is repeated in cl 2.1 and it forms the basis of the plaintiff's application.  The plaintiff says the wording of the Leasing Agreement means that the Leasing Agreement is only effective if it is entered into between the owner of the property and the leasing agent.  It is said that as there is an ambiguity on the face of the document there is a genuine dispute as to liability and the demand ought be set aside.

7. In my view there can be no serious argument on this point.  The affidavit of Mr Nash makes it plain what was intended and what actually occurred.  The defendant was engaged to find a tenant.  In the Leasing Agreement it warranted that it had the authority to enter into the Leasing Agreement and it clearly did have that authority.  Mr Nash does not deny that is the case.  It is true that the Leasing Agreement is not happily worded.  That may be a matter the defendant should consider.  But there can be no serious dispute that the plaintiff is indebted to the defendant as alleged.  In my view there is no substance in the plaintiff's allegation that there is a serious dispute in this matter.  The application ought be dismissed.  The plaintiff ought pay the defendant's costs including reserved costs.