Complete Hire and Sales Pty Ltd v P and B Woodward (A Partnership)
[2009] WASC 371
•10 DECEMBER 2009
COMPLETE HIRE & SALES PTY LTD -v- P & B WOODWARD (A PARTNERSHIP) [2009] WASC 371
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 371 | |
| Case No: | COR:101/2009 | 1 OCTOBER 2009 | |
| Coram: | ACTING MASTER CHAPMAN | 10/12/09 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Statutory demand set aside | ||
| B | |||
| PDF Version |
| Parties: | COMPLETE HIRE & SALES PTY LTD (ACN 090 519 823) P & B WOODWARD (A PARTNERSHIP) (ABN 84 980 982 471) |
Catchwords: | Corporations law Statutory demand Application to set aside statutory demand Genuine dispute Turns on own facts |
Legislation: | Nil |
Case References: | Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
P & B WOODWARD (A PARTNERSHIP) (ABN 84 980 982 471)
Defendant
Catchwords:
Corporations law - Statutory demand - Application to set aside statutory demand - Genuine dispute - Turns on own facts
Legislation:
Nil
Result:
Statutory demand set aside
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr R J Bowker
Defendant : Mr S J Blyth
Solicitors:
Plaintiff : Tottle Partners
Defendant : Lewis Blyth & Hooper
Case(s) referred to in judgment(s):
Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85
(Page 3)
- ACTING MASTER CHAPMAN:
The issues
1 The plaintiff on 19 May 2009 filed an originating process seeking to set aside a statutory demand dated 23 April 2009.
2 The defendant contends the application should be dismissed on the basis that the evidence fails to establish there is a genuine dispute as to the amount claimed in the statutory demand.
The law
3 I accept that the appropriate test is set out in Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85 where the Hon Chief Justice said [44] - [46]:
The verbal formulation of the test to be applied which appears to enjoy greatest judicial support is that of McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785, where he described the expression 'genuine dispute' as connoting 'a plausible contention requiring investigation' and equated it to the criterion of 'serious question to be tried' which arises on an application for an interlocutory injunction: see Polaroid Australia Pty Ltd (533); Turner Corp (WA) Pty Ltd v Blackburne & Dixon Pty Ltd [1999] WASCA 294 [27]-[28] (Owen J); SMEC International Pty Ltd v CEMS Engineering Inc [2001] NSWSC 459; (2001) 38 ACSR 595 [22] (Austin J); and Drewniak v Air Rubber Pty Ltd [2002] SASC 319 ; (2002) 84 SASR 302 [12] (Debelle J).
It is equally well established that the plaintiff for an order setting aside a statutory demand must establish that the dispute is bona fide and truly exists in fact, and that the grounds alleging the existence of the dispute are real and not spurious, hypothetical, illusory or misconceived: see Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452 at 464; (1997) 15 ACLC 1001, 1011; and Turner Corp (WA) Pty Ltd [27].
It is also well established that the only function of the court is to determine whether there is a genuine dispute - the court is not expected to undertake an extended inquiry nor attempt to weigh the merits of the dispute.
The facts
4 It appears to be accepted that the authority for the defendant to carry out the rewiring of the portable buildings at Cooper & Oxley's project in South Hedland is to be found in the plaintiff's purchase order no 27995. The following is submitted at pars 9(a) - (c) of the written submissions of the defendant:
(Page 4)
- There is no issue that:
(a) the [plaintiff] engaged the [defendant] to undertake contractual works (refer to purchase order 27995 dated 24 September 2008 - page 66 of D'Agostino affidavit sworn 19 May 2009);
(b) the authority to undertake contractual works was open ended and the value of the works to be performed was not quantified ( - said page 66 above);
(c) the works that were undertaken by the [defendant] fall within the scope of the aforesaid contractual authorisation.
5 Whilst I accept the value of the work to be performed was not quantified in monetary terms, I do not accept the contractual works was open-ended. The purchase order is addressed to P & B Woodward. Under the heading 'Notes' the following is recorded:
As per conversation Paul Cooke / Peter Woodward today please find the attached purchase order for the re wiring of the portable buildings at the Cooper & Oxley project in South Headland.
Please contact our representative Vern Skopovich on … for details on what work needs to be carried out.
I also need your company banking details to allow for payment.
6 The purchase order was annexed to an email which is exhibit LD4 to the affidavit of Luisa D'Agostino sworn 19 May 2009 and in part reads:
Please find the attached purchase order to allow for the work needed to be carried out at the Cooper & Oxley project in South Headland [sic].
As per the purchase order please can your guys on site speak to Vern Skopovich on … as he has already rectified 1 of the buildings.
7 Peter Woodward, in his affidavit sworn 10 June 2009, accepts that he received purchase order 27995. At par 13 of his affidavit he deposes as follows:
I did not have any communication, either in writing or orally, with the person referred to as Verner Scopinich in annexure 'LD4' to the said affidavit of D'Agostino sworn 19 May 2009. However as the electrical contractor engaged by the Plaintiff to undertake any necessary electrical work or repairs, I say that it is the Defendant's responsibility, and the Defendant's subcontractors responsibility, including Lynch, to independently assess and ascertain the nature of any electrical fault or problem and to make an independent assessment and determination of what is necessary to rectify any problem or fault.
(Page 5)
- That may or may not be so but did the terms of the purchase order authorise the defendant to undertake this work without first obtaining the agreement of the plaintiff?
The present case
8 It is accepted that the defendant or its subcontractors carried out work on the portable buildings at Cooper & Oxley's project in South Hedland. As to the charges rendered by the defendant in relation to that work, Ms D'Agostino, at par 24 of her affidavit, deposes as follows:
If the Revised Invoice relates only to work done in re-wiring the air conditioning units, for the reasons set out above, the [plaintiff] disputes that it agreed to pay anything other than a reasonable amount for the work which was undertaken. Based on the advice received from Mr Scopinich the [plaintiff] maintains that the re-wiring should have taken no more than an hour per donger, that is, appropriately 6 hours. The [plaintiff] disputes that it is indebted [sic] the [plaintiff] for anything more than approximately 6 hours work and maintains that the work which it authorised the [defendant] to undertake was not valued at, or even close to, the amount stated in the Revised Invoice.
9 As to par 24, counsel for the defendant submits that there is no evidence from Mr Skopovich on which Ms D'Agostino could properly rely to come to that belief. I accept there is no affidavit evidence before me from Mr Skopovich but Ms D'Agostino relied upon a memorandum prepared by Mr Skopovich which formed part of the documents maintained by her on behalf of the plaintiff.
10 At par 26 of the same affidavit she deposes as follows:
For the reasons outlines above:
(a) the value of any work done was outside the scope and value of the work which was requested to be done;
(b) the value of any work done and invoiced to the [plaintiff] for converting the dongers to 3 phase power is disputed.
11 When read as a whole the affidavit of Ms D'Agostino sworn 19 May 2009 puts in issue the scope of the work to be carried out. It is at least arguable that the purchase order confined the scope of the work to that which Mr Skopovich advised needed to be carried out after contact was made with him. Mr Woodward chose not to contact Mr Skopovich even though it is clear from his affidavit that the work undertaken by the defendant was pursuant to the purchase order.
(Page 6)
12 As the process outlined in the purchase order was not followed, the issue of the scope of the work authorised by the purchase order, and thus the amount which could properly be charged, is open. The dispute, in my view, is real and raises a plausible contention requiring investigation.
Conclusion
13 In my view there is a genuine dispute as to the amount of the debt and the statutory demand should be set aside.
0
6
1