Corinthian Mining Pty Ltd v Lloyd George Mining Pty Ltd - [2023] WASC 276

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CORINTHIAN MINING PTY LTD -v- LLOYD GEORGE MINING PTY LTD [2023] WASC 276
CORAM:   ACTING MASTER MCDONALD
HEARD:   30 MARCH 2023 AND FURTHER AFFIDAVITS FILED ON 4 APRIL 2023 & 28 APRIL 2023
DELIVERED          :   26 JULY 2023
FILE NO/S:   COR 220 of 2022
BETWEEN:   CORINTHIAN MINING PTY LTD
Plaintiff
AND
LLOYD GEORGE MINING PTY LTD
Defendant

Catchwords:

Corporations Law - Application to set aside statutory demand - Whether genuine dispute established - Identity of contracting party - Whether genuine dispute about the amount of debt - Statutory demand varied

Legislation:

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

Result:

Application dismissed
Statutory demand varied

Representation:

Counsel:

Plaintiff	:	A Prentice
Defendant	:	MTS Rennie

Solicitors:

Plaintiff	:	Mossensons
Defendant	:	Michael Rennie

Cases referred to in decision:

Amville Constructions Pty Ltd v LS Bricklaying (Vic) Pty Ltd [2022] VSC 65
First State Computing Pty Ltd Pty Ltd v Kyling (1995) 13 ACLC 939
Greg Rowe Pty Ltd v Hill [2012] WADC 104
Heron Park Pty Ltd v Bob Garner Excavations Pty Ltd [2008] VSC 248
HJ Lyons & Sando Ltd v Houlson [1963] SASR 29
Re Wollongong Coal Ltd [2015] NSWSC 1680; (2015) 110 ACSR 134
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52
WA Glass Pty Ltd v Auto Control Systems Pty Ltd [No 2] [2023] WASCA 85
Westgyp Pty Ltd v Northline Ceilings Pty Ltd [No 2] [2019] WASCA 145

ACTING MASTER MCDONALD:

The plaintiff, Corinthian Mining Pty Ltd (Corinthian), is seeking to set aside the defendant's statutory demand for payment of a non‑judgment debt in the sum of $93,605 pursuant to s 459G of the Corporations Act 2001 (Cth) (the Act). Alternatively, the plaintiff seeks to vary the statutory demand by reducing the sum by $17,100. The defendant in this application is Lloyd George Mining Pty Ltd (LGM). I have not set aside the statutory demand but I have reduced the amount claimed to $76,505.

Application

The application, made by originating process filed on 9 December 2022, is supported by two affidavits of Mr Noel Wemyss, the sole director of Corinthian, filed on 9 December 2022 (First Wemyss Affidavit) and on 28 April 2023 (Second Wemyss Affidavit) and the affidavit of Ms Maxine Lee Bellette filed on 16 December 2022 (Bellette Affidavit). In opposition to the application the defendant has provided two affidavits sworn by Mr Frank Peter Suminovich, the sole director of LGM, filed on 1 February 2023 (First Simunovich Affidavit) and 4 April 2023 (Second Simunovich Affidavit). I have also considered the defendant's submissions filed on 27 March 2023 (Defendant's Submissions) and the plaintiff's submissions filed on 28 March 2023 (Plaintiff's Submissions).
The plaintiff's submissions were filed after the defendant's submissions. At the hearing on 30 March 2023, counsel for the defendant stated that until he had received the plaintiff's submissions, two days prior to the hearing, he had not appreciated that the basis for setting aside the statutory demand was that the entity that issued the statutory demand was not the contracting party.[1] For that reason the parties were given leave to file further affidavit evidence confined to the issue of the identity of the contracting parties.
[1] ts 12.

Factual Background

Mr Noel Wemyss is the sole director of the plaintiff, Corinthian, and Blue Tiger Mining Pty Ltd (BTM). Mr Frank Simunovich is the sole director of the defendant, LGM.[2]

Hire of BTM's excavator

[2] First Wemyss Affidavit [1], [4] - [5], 'NW2' and 'NW3'.

On or about 15 November 2019, Mr Simunovich asked Mr Wemyss if he could hire BTM's excavator. The subsequent agreement relating to the hire of BTM's excavator is not the contract that gave rise to the statutory demand, but it is relevant to the communications between the parties concerning the agreement that did give rise to the statutory demand.
Between 17 November 2019 and 13 February 2020, BTM supplied its excavator for work at a mine called Surbiton.[3] BTM issued two invoices totalling $89,602.70.[4] The party which is responsible for payment of the excavator hire is in dispute. Mr Wemyss deposes that he was advised by Mr Simunovich to send the invoices to a company called International Drill Parts Pty Ltd (IDP) because IDP would pay BTM pursuant to an agreement Mr Simunovich had with IDP.[5] IDP did not pay the invoices and on 27 May 2022, BTM reissued the invoices to LGM.[6] Mr Simunovich disputes that LGM ever agreed to pay for the excavator hire.[7] On 5 July 2022, BTM commenced District Court proceedings against LGM for payment of the invoices. In the District Court proceedings LGM denied liability and claimed IDP is liable to pay.[8]

Hire of Caterpillar 777 dump trucks and generator

[3] First Wemyss Affidavit [6] - [7].

[4] First Wemyss Affidavit [13] and 'NW4'.

[5] First Wemyss Affidavit [8].

[6] First Simunovich Affidavit [9].

[7] First Simunovich Affidavit [7(b)]and [11(a)].

[8] First Simunovich Affidavit [5(c) - (d)].

In November 2021, Mr Wemyss and Mr Simunovich, in a phone conversation, came to an agreement whereby Mr Simunovich would hire trucks and a generator to Mr Wemyss for work at the Corinthian mine, Wealth of Nations.[9] Mr Wemyss deposed that Mr Simunovich agreed to hire the trucks as a way for LGM to pay the debt owed for the excavator hire and that the cost of hire would be set off against the monies owed to BTM.[10]
[9] First Simunovich Affidavit [11(c)] and [12].
[10] First Wemyss Affidavit [16].
Mr Simunovich denies that he ever said that the trucks would be a means by which to repay the amounts owing to BTM nor was that put to him.[11] He further denies that the fee for the hire of trucks was to be set off against the monies owed to BTM.[12] Mr Simunovich deposes that his understanding of how the request to hire the trucks came about was that Mr Wemyss had asked an earthmoving business for a quote for the trucks but was advised the job was too small and that Mr Wemyss should 'get Frank's trucks'.[13]
[11] First Simunobich Affidavit [11(d) - (e)].
[12] First Simunovich Affidavit [11(e)].
[13] First Simunovich Affidavit [12].
Both Mr Wemyss and Mr Simunovich agree they did not discuss rates for the truck hire. Mr Wemyss says Mr Simunovich agreed to give him a 'really low rate'.[14] Mr Simunovich denies this and deposes that he said to Mr Wemyss he would not charge for mobilisation of the trucks to the site which would save about $20,000.[15]
[14] First Wemyss Affidavit [16] - [18].
[15] First Simunovich Affidavit [13].
It is agreed that Corinthian did hire two trucks for use at its Wealth of Nations mine.[16] An invoice dated 4 May 2022 for 'Machine Hire at Wealth of Nations Gold Mine' was issued to BTM in the amount of $105,600 representing an hourly rate for the hire of the trucks at $125 per hour and a weekly rate of $700 for the hire of a generator.[17] The invoice states 'Remittance to: Lloyd George Mining Pty Ltd' with an address and bank details.[18]
[16] First Wemyss Affidavit [16]; First Simunovich Affidavit [14].
[17] First Wemyss Affidavit [21] and 'NW5'; First Simunovich Affidavit [14] and [16].
[18] First Wemyss Affidavit 'NW5'.
On 9 May 2022, Mr Wemyss emailed Mr Simunovich advising that his understanding was that the hire of the trucks was to be less than the excavator invoices. Mr Wemyss also referred to the fact that there was no agreement to charge for the 'gen-set' and the generator cost could be offset against a personal loan of $20,000 made from BTM to LGM.[19]
[19] First Wemyss Affidavit [23] and 'NW6'.
On 14 June 2022, Mr Wemyss sent an email to Mr Simunovich disputing the rates contained in the invoice for the trucks. He states the rates should be no more than $100 to $110 per hour for the trucks and no more than $400 per week for the generator.[20]
[20] First Wemyss Affidavit [24] and 'NW7'.
On 15 June 2022, Mr Simunovich emailed Mr Wemyss purportedly confirming an agreement with Mr Wemyss made that morning by telephone to the effect that $125 per hour would be charged for the trucks and the hire fee for the generator would be amended to $400 per week.[21]
[21] First Simunovich Affidavit [20] and 'H'.
On 17 June 2022, Mr Simunovich sent an amended invoice to BTM adjusting the invoice to $100,605 with the same hourly rate of $125 for the truck hire but a reduced weekly rate of $400 for the hire of the generator.[22]
[22] First Simunovich Affidavit [21] and 'I'.
On 13 July 2022, Mr Wemyss sent an email to Mr Simunovich advising that the invoices should be sent to Corinthian and not BTM as the project had nothing to do with BTM. He further requested that the hourly rate reflect the amount he has been out of pocket due to the excavator hire for the Surbiton mine.[23]
[23] First Wemyss Affidavit 'NW9'; First Simunovich Affidavit [22].
On 27 July 2022, Mr Simunovich sent an email to Mr Wemyss attaching an amended invoice issued to Corinthian but otherwise in the same terms as the earlier invoice dated 17 June 2022.[24] Mr Simunovich stated in his email that any set off in relation to the excavator hire fee falls away due to the trucks being hired being by Corinthian and not by BTM.
[24] First Simunovich Affidavit [23] and 'J'.
On 21 November 2022, $7,000 for the mobilisation of the trucks was deducted from the invoice on the basis it had been paid twice. The balance outstanding was adjusted to $93,605.[25]
[25] First Simunovich Affidavit [26(e) - (f)] and 'K'.
A statutory demand for $93,605 dated 21 November 2022 was issued by LGM to Corinthian.
In the Second Simunovich Affidavit filed after the hearing, Mr Simunovich deposes he has known Mr Wemyss for over 10 years. He states that LGM has owned four Caterpillar 777 dump trucks for approximately 7 years, two of which were the subject of the hire agreement with Corinthian. All the trucks are usually kept at the mine operated by LGM, known as Gilbraltar, and have 'Lloyd George Mining' written in large letters on the headboards.[26]
[26] Second Simunovich Affidavit [4] - [8].
Mr Simunovich deposes that two of these trucks were on display in the main street of Coolgardie at Back to Coolgardie Day in September 2019, an event that displays mining equipment and mining related activities. Mr Simunovich deposes he ran into Mr Wemyss at Back to Coolgardie Day, the inference being the trucks, together with their signage, would have been clearly visible to Mr Wemyss. In addition, Mr Simunovich deposes that Mr Wemyss has been to Gibraltar many times and the dump trucks with the signage would again have been clearly visible.[27] The photo attached to the Second Simunovich Affidavit of one of the trucks with the signage is Annexure A to these reasons.[28]
[27] Second Simunovich Affidavit [8] - [10].
[28] Second Simunovich Affidavit 'A'.
Mr Simunovich also disputes Mr Wemyss' claim that there had never been any prior transactions between Mr Wemyss and Mr Simunovich or their respective companies in relation to the hire of trucks.[29] Mr Simunovich deposes that in 2018, three years before the truck hire the subject of these proceedings, Mr Wemyss was negotiating on behalf of BTM about hiring some of LGM's mining equipment including the dump trucks. Mr Wemyss sent Mr Simunovich a draft agreement with BTM and LGM named as the parties. The agreement was never signed and did not proceed.[30]
[29] First Wemyss Affidavit [19].
[30] Second Simunovich Affidavit [16] - [18].
Mr Wemyss, in response, deposes that Mr Simunovich is the director of other companies and that he does not know how Mr Simunovich structures his business affairs and that he has never been told who owned the trucks the subject of the hire agreement.[31]
[31] Second Wemyss Affidavit [4] - [6].
In relation to the 2018 draft agreement for the hire of trucks between BTM and LGM, Mr Wemyss states he prepared it based on a draft agreement he had for a separate contractor and that he did not know what equipment was owned by LGM. For that reason, LGM in the draft agreement was defined as Lloyd George Mining Pty Ltd and/or the owner of the Equipment, its successor and assigns. As the agreement did not go ahead any clarification of ownership was not required.[32]
[32] Second Wemyss Affidavit [7] - [11].
Further, Mr Wemyss states he has attended many Back to Coolgardie Days and is unable to recall whether he saw any trucks when there in 2019. Further, Mr Wemyss says that while he has seen an excavator at Gibraltar, he cannot recall seeing the trucks that were used at the Wealth of Nations Mine.[33]
[33] Second Wemyss Affidavit [12] - [13].

Issues

It is not in dispute that Corinthian owes a debt for the hire of the trucks and generator. The two issues for determination are whether there is a genuine dispute due to:
1.LGM, which issued the statutory demand, not being the contracting party for the hire of the trucks/generator; and
2.there being no agreement reached in relation to the hourly rate.
If there is no genuine dispute based on the identity of the creditor but no agreement as to the rate charged for the trucks, neither party contends the statutory demand should be set aside on this basis. Instead, both agree the amount claimed in the statutory demand should be adjusted accordingly.

Legal Framework

Section 459E of the Act contains a statutory regime by which a creditor may serve a statutory demand on a company in respect of a debt or debts which are due and payable, provided the debts meet at least the statutory minimum amount. The statutory minimum is exceeded in this case.
Pursuant to s 459G of the Act a company served with a statutory demand may apply to the court for an order setting it aside. The application must be made within 21 days after the statutory demand was served.
Section 459G(3) provides that:
(3) An application is made in accordance with this section only if, within those 21 days:
(a) an affidavit supporting the application is filed with the Court; and
(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
Section 459H of the Act provides:
Determination of application where there is a dispute or offsetting claim
(1)This section applies where, on an application under section 459G, the Court is satisfied of either or both of the following:
(a)that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates;
(b)that the company has an offsetting claim.
Subsection 459H(2) of the Act specifies how an offsetting claim is to be calculated. As the plaintiff is not seeking to offset the amount owed under the statutory demand, that subsection is not relevant to these reasons.
Section 459H(4) of the Act provides:
(4) If the substantiated amount is at least as great as the statutory minimum, the Court may make an order:
(a)varying the demand as specified in the order; and
(b) declaring the demand to have had effect, as so varied, as from when the demand was served on the company.
Section 459H(1) of the Act is subject to s 459J which provides that the court may by order set aside the statutory demand if it is satisfied that:[34]
(a) because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or
(b)there is some other reason why the demand should be set aside.

Genuine Dispute

[34] The Act s 459J.

The legal principles applicable to the determination of whether a dispute is 'genuine' for the purpose of s 459H(1) of the Act were recently summarised by the Court of Appeal in WA Glass Pty Ltd v Auto Control Systems Pty Ltd [No 2] [2023] WASCA 85 as follows:[35]
[35] WA Glass Pty Ltd v Auto Control Systems Pty Ltd [No 2] [2023] WASCA 85, [46] - [50].
There are numerous cases which have discussed what is required to constitute a genuine dispute about the existence or amount of a debt. In CA & Associates Pty Ltd v Fini Group Pty Ltd Buss P and Vaughan JA summarised the effect of the authorities. Buss P and Vaughan JA stated that it is well-established that:
1.The court's function is to determine whether there is a genuine dispute; the court is not expected to undertake an extended inquiry or attempt to weigh the merits of the dispute. It is not part of the court's function to resolve the dispute.
2.It suffices if there is a 'plausible contention' requiring 'further investigation' - something that may be equated to the criterion of whether there is a 'serious question to be tried'.
3.However, the applicant must establish that: (a) the dispute is bona fide and truly exists in fact; and (b) the grounds alleging the existence of the dispute are real and not spurious, hypothetical, illusory or misconceived (citations omitted).
Buss P and Vaughan JA also referred with approval to the often-cited words of McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd. Having said that the expression 'genuine dispute' connotes a plausible contention requiring investigation, thus raising much the same sort of considerations as 'serious question to be tried' criteria, his Honour stated:
This does not mean that the court must accept uncritically as giving rise to a genuine dispute, every statement in an affidavit 'however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be' not having 'sufficient prima facie plausibility to merit further investigation as to [its] truth', or a patently feeble legal argument or an assertion of facts unsupported by evidence. (citations omitted)
Eyota Pty Ltd v Hanave Pty Ltd is the ultimate source for the many authorities that have accepted that, for the purpose of s 459H(1)(a) of the Corporations Act, a genuine dispute is established where a company applying to set aside a statutory demand raises a plausible contention requiring investigation.
Thus there must be an evidential basis for the asserted dispute. Mere assertion is insufficient. So too a claim that is spurious or fanciful is insufficient. The dispute must have a sufficient objective existence and prima facie plausibility.
The requirement is to refer to something more than the mere 'raising' of a dispute or, in the context of an offsetting claim, the mere 'making' of a claim. The provisions assume that the dispute or offsetting claim have an 'objective' existence the genuineness of which is capable of being assessed. The word 'genuine' is included to sound a note of warning that the propounding of spurious disputes or claims is to be expected but must be excluded from consideration.

Identity of contracting party

A dispute about the identity of a contracting party or debtor/creditor relationship may constitute a genuine dispute for the purposes of s 459H of the Act.[36]
[36] Heron Park Pty Ltd v Bob Garner Excavations Pty Ltd [2008] VSC 248 [48] - [53]; Amville Constructions Pty Ltd v LS Bricklaying (Vic) Pty Ltd [2022] VSC 65 [32].
Where there is such a dispute the Court's task as summarised in Amville Constructions Pty Ltd v LS Bricklaying (Vic) Pty Ltd [2022] VSC 65 is as follows:[37]
… It is not the Court's task to express a view on the ultimate question of the identity of the contracting party, but rather to consider only the question of whether there is a genuine dispute. The question of construction involved in determining which person or entity is party to an arrangement, is properly a matter for a trial on the merits. However, a plaintiff in an application under s 459G of the Act still has the onus of establishing the existence of a genuine dispute about the correct contracting party on the balance of probabilities. Were it otherwise, an applicant could succeed in setting aside a statutory demand simply by asserting, in the absence of, or contrary to, objective evidence, that there was no contract as between it and the named defendant but that there was instead an agreement between the plaintiff and another party (footnotes omitted).
[37] Amville Constructions Pty Ltd v LS Bricklaying (Vic) Pty Ltd [2022] VSC 65, [32].

I was also referred to the following authorities by the plaintiff concerning the identity of the contracting party:[38]
(a)the identity of a contracting party is to be determined looking at the matter objectively: Westgyp Pty Ltd v Northline Ceilings Pty Ltd [No 2] [2019] WASCA 145 [168];
(b)there is a presumption of fact that a person intends to contract with the person to whom he is addressing the words of the contract: Lewis v Averay [1972] 1 QB 198; Greg Rowe Pty Ltd v Hill [2012] WADC 104 [75];
(c)just because a party is not the registered proprietor of the subject matter of a contract, does not mean that she could not contract with the plaintiff and agree to pay its fees: Greg Rowe Pty Ltd v Hill;
(d)when a person requests or orders work to be done that person impliedly undertakes to pay for it. If the person desires to avoid the liability so undertaken by setting up that he or she was acting purely as agent for another person, he or she must have made that position clear to the other contracting party: HJ Lyons & Sando Ltd v Houlson [1963] SASR 29; Greg Rowe Pty Ltd v Hill; and
(e)what matters is what each party, by words and conduct, would have led a reasonable person in the position of the other party to believe: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; Greg Rowe Pty Ltd v Hill.
[38] Plaintiff's Submissions [6] - [10].
These propositions, taken from Greg Rowe Pty Ltd v Hill, were qualified by Davies DCJ, as simply giving rise to a presumption that a person intends to contract with the person with whom he is addressing the words of contract. That presumption is rebuttable. Davies DCJ held:[39]
The presumption is one of fact and so may be displaced by evidence of a contrary intention. Such an intention may be ascertained by an objective assessment of the words and deeds of the parties in light of all the evidence, as well as the actual knowledge of the parties: Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 [35] ‑ [54] in particular [43], [54].
The identity of a contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract: Air Tahiti Nui Pty Ltd v McKenzie {2009] NSWCA 429; (2009) 77 NSWLR 299 [28].

Amount

[39] Greg Rowe Pty Ltd v Hill [2012] WADC 104 [75] - [76].

In relation to the dispute as to the amount, if a debtor can make out a genuine dispute as to part but not all of the debt claimed in the statutory demand, the demand will normally be varied by reducing the amount, so long as that amount is more than the statutory minimum and provided that the demand was not so grossly inflated, or comprised of matters which were so obviously in dispute, that the service of the demand amount to an abuse of the regime under pt 5.4.[40]
[40] The Act s 459H(4). First State Computing Pty Ltd Pty Ltd v Kyling (1995) 13 ACLC 939; Re Wollongong Coal Ltd [2015] NSWSC 1680; (2015) 110 ACSR 134 [59].

Plaintiff's submissions

The plaintiff submits the agreement to hire the trucks was reached following a discussion between Mr Wemyss and Mr Simunovich in November 2021. During that discussion neither represented they were acting on behalf of any corporate entity. The submission is that the agreement was entered into by individuals, not corporate entities.[41]
[41] Plaintiff's Submissions [3] - [5].
Mr Wemyss deposes he had not had prior dealings with Mr Simunovich in relation to hiring his trucks[42] from which it is to be inferred the plaintiff had no knowledge from which to assume that Mr Wemyss knew he was dealing with LGM.
[42] First Wemyss Affidavit [19].
The application is not pressed on the basis that there is any dispute that the plaintiff is the debtor,[43] given Mr Wemyss instructed Mr Simunovich to send the invoice to Corinthian.
[43] Plaintiff's Submissions [13].
The submission is that subsequent clarification in the various email correspondence as to who are the contracting parties does not detract from the prima facie position that the contract was made initially between Mr Wemyss and Mr Simunovich.[44]
[44] ts 18.
The second submission is that there was never any agreement as to the amount to be charged.[45] Instead, the plaintiff submits that Mr Simunovich advised the rate would be 'really low' which would need to be the subject of expert evidence and judicial consideration.[46]
[45] Plaintiff's Submissions [18]; Defendant's Submissions [13].
[46] Plaintiff's Submissions [17] - [18].
The plaintiff appropriately concedes it is not an offsetting claim,[47] and nor could it be, given the parties to the excavator contract and the truck hire contract are different.
[47] Plaintiff's Submissions [14].
The plaintiff submits that if the statutory demand is not set aside on the basis that it was issued by the wrong party, it should be reduced by an amount of $17,100 plus GST.[48] That figure is a reference to the difference between the rate charged and the rate the plaintiff had agreed to pay.[49]
[48] Plaintiff's Submissions [21] - [22].
[49] Defendant's Submissions [28].

Defendant's submissions

The defendant in its written submissions does not address the question of the identity of the contracting parties as the defendant did not appreciate that the identity of the creditor was the basis for contending there was a genuine dispute. At the hearing the defendant relied on the correspondence between the parties as evidence that the plaintiff understood it was contracting with LGM.
In relation to the amount of the debt, the defendant claims the evidence of Mr Simunovich that the rate of $125 per hour for the truck hire was confirmed by Mr Wemyss in a telephone conversation on 15 June 2022, is unchallenged.[50] For that reason the defendant submits there is no genuine dispute about the amount specified in the demand.
[50] Defendant's submissions [23] - [25].
In the alternative, the defendant submits that if there is a dispute as to the amount, the defendant agrees that dispute is confined to the difference between the rate the plaintiff indicated it was prepared to pay of $100 per hour and the rate charged at $125 per hour.[51]
[51] Defendant's submissions [30] - [41].

Disposition

Dispute as to the identity of the contracting parties

Any presumption that the plaintiff was contracting with Mr Simunovich rather than the defendant in my view has been displaced by the objective evidence.
First, Mr Wemyss' version of how the agreement to hire the trucks came about is that Mr Simunovich suggested that 'if [Mr Wemyss] was to hire his trucks… at the Wealth of Nations mine, then that would be a good way to repay the debt as he did not have the funds available'.[52] The debt referred to is the debt Mr Wemyss says is owed by LGM. Further, Mr Wemyss says he agreed to take the trucks on the basis that the cost of hiring the trucks would be set off against the monies owed to BTM for the hire of the excavator.[53] Again, according to Mr Wemyss, the monies for the excavator hire were owed by LGM. If that is how the agreement came to pass, that suggests, on Mr Wemyss' version of events, it was LGM offering to hire its trucks.
[52] First Wemyss Affidavit [16].
[53] Wemyss Affidavit [17].
Secondly, despite Mr Wemyss' claims that neither he nor Mr Simunovich mentioned that they were having a conversation on behalf of any particular corporate entity, the invoice dated 4 May 2022 was issued by LGM and requested remittance to Lloyd George Mining Pty Ltd for the total due of $105,600. Soon after the invoice was issued, Mr Wemyss emailed Mr Simunovich on 9 May 2022 raising, among other things, the outstanding excavator fees owed by LGM to BTM. In that email Mr Wemyss says:[54]
Me paying you $105k and me receiving nothing is not mutually acceptable Frank
…
If it helps, upon agreement of invoice details/charges, I may entertain a part payment to LG with remainder based on successful receipt of funds from IDP but all for discussion.
[54] First Wemyss Affidavit [23], 'NW6'.

If Mr Wemyss was of the belief that the truck hire fees are owed to Mr Simunovich personally and not LGM, it is not explained why he would 'entertain a part payment to LG[M]' if there was no agreement with LGM.
Thirdly, counsel for the plaintiff states it can be inferred from Mr Wemyss' email in which he states '[i]f the reinvoicing did include some acknowledgement by you/LGM that I've been out of pocket for 80 to 90K …,' that there is confusion as to who the plaintiff is contracting with, Mr Simunovich or LGM. The use of personal pronouns relied upon by counsel does not assist. In the same exchange Mr Wemyss states "I've been out of pocket' when there is no dispute it is BTM which is owed the 80 to 90K. The fact that they spoke in the first person in respect of debts owed to their companies is indicative of the fact that both are sole directors of their respective companies.
Fourthly, in none of the correspondence does Mr Wemyss raise with Mr Simunovich that the invoices for payments to LGM are in error and it should be some other entity or Mr Simunovich himself.
On 17 June 2022, Mr Simunovich sent an email to Mr Wemyss in which he states, after referencing the dispute in relation to the excavator fees:[55]
There is no basis for you to now hold a gun to my head and withhold payment to Lloyd George Mining for its services provided on the Wealth of Nations project.
and further:
Noel, as you are aware the costs for the services that Lloyd George provided to Blue Tiger on the Wealth of nations project is of extremely good value to Blue Tiger, particularly when taking into account the costs of the other facets of the job such as wages, drill and blast, dozer hire, haulage to the mill etc etc, which all normally would cost less than the trucking.
Could you give this matter your urgent attention and provide prompt payment to Lloyd George (emphasis added).
[55] First Simunovich Affidavit 'I'.
In an email dated 5 July 2022, Mr Simunovich proposes to Mr Wemyss, in the interest of progressing the situation, that 'Blue Tiger should in the interim pay to Lloyd George the difference between the relevant invoices'.[56] In his response, Mr Wemyss corrects the identity of the party to whom the truck hire invoices should be issued to, namely from BTM to Corinthian, but does not correct the identity of the creditor being LGM.[57]
[56] First Wemyss Affidavit 'NW8'.
[57] First Wemyss Affidavit 'NW9'.
Fifthly, in relation to the payment of the mobilisation fees, Mr Wemyss states in his email of 1 November 2022 'LGM has been overpaid $7,000 in error'.[58]
[58] First Wemyss Affidavit 'NW14'.
These exchanges, in my view, indicate Mr Wemyss considered he had contracted with LGM.
The first indication that Mr Wemyss asserts the deal was made between two individuals rather than between the parties' was after the commencement of proceedings. That is not decisive, but it is to be weighed up in the context of correspondence in which references to LGM as being the hirer is not challenged.
Finally, Mr Wemyss deposes:[59]
There were never any transactions between Frank and I, or our respective companies, in relation to the hire of the Trucks.
When I asked to hire the Trucks, the conversation was between Frank and I and neither of us mentioned that we were having that discussion on behalf of any particular corporate entity.
[59] First Wemyss Affidavit [19] - [20].
The inference sought to be drawn is that Mr Wemyss could not have known Mr Simunovich was contracting on behalf of LGM.
I do not accept that is the case. Mr Wemyss and Mr Simunovich were not strangers. Mr Wemyss acknowledges their long-term relationship in his email of 13 July 2022.[60] The conversation that gave rise to the hire agreement occurred in November 2021, some two years after Mr Wemyss says BTM hired the excavator to LGM and three years after the draft agreement drawn up by Mr Wemyss for the hire of equipment between BTM and LGM. Mr Wemyss knew Mr Simunovich was the director of LGM. The trucks themselves are labelled Lloyd George Mining. That is not challenged by Mr Wemyss although I cannot make a finding he saw the trucks before their delivery.
[60] First Wemyss Affidavit 'NW9'.
It is also difficult to reconcile the plaintiff's submission that Mr Wemyss' subsequent clarification that Corinthian was the contracting party cures any doubt as to the identity of the debtor, with the submission that the repeated references to LGM being owed the money for the truck hire does not inform who was the creditor. Until these proceedings commenced, there is no evidence of any confusion between the parties as to the identity of the creditor.
I do not consider there is a sufficient evidential basis for there to be a plausible contention that the identity of the creditor requires further investigation. There is no genuine dispute on this ground.

Genuine dispute as to the amount

The plaintiff submits that if the statutory demand is not set aside due to a genuine dispute about who are the contracting parties, I should exercise the discretion conferred in s 459H(4) of the Act to vary the amount of the demand.
Following receipt of the invoice for the sum of $105,600 from LGM for the truck hire, Mr Wemyss states his clear understanding was that the truck hire was to be less than the invoices sent to IDP (presumably in relation to the excavator).[61]
[61] First Wemyss Affidavit 'NW6'.
On 14 June 2022, Mr Wemyss sent an email stating:[62]
·I would never agree to a rate of $125/hour for such old equipment that I spent considerable money on without any request for re-imbursement for labour/parts. $100-$110/hour would be an acceptable rate for your trucks if being hired as part of a standard agreement.
·Also attached is a quote for a similar sized genny to yours from Agrekko for a fully serviced, newer genny so your monthly [sic] rate of $700 is also excessive.
For anything at all to be considered for discussion/resolution, the BTM invoice would need to contain rates no more than $110/hour for trucks and no more than $400/week for genny (this is the rate for 24 hours despite us using it for mostly 12 hours only when used).
[62] First Wemyss Affidavit 'NW7'.
Mr Simunovich responded on 15 June 2022 stating:[63]
Following our telephone conference this morning, I confirm our agreement That the 777 truck hire rate of $125 per hour is acceptable and the generator rate be amended to $400 per week.
[63] First Simunovich Affidavit 'H'.
On 17 June 2022, Mr Simunovich sent a further email to Mr Wemyss stating:[64]
Further to your email of 14 June please find attached the amended invoice reflecting the now agreed rates for the truck and equipment hire at the Wealth of Nations mine.
[64] First Simunovich Affidavit 'I'.
That invoice reflects a rate of $125 per hour for the truck hire and $400 per week for the generator hire.
Neither of the emails dated 15 June 2022 and 17 June 2022 are referred to in Mr Wemyss's affidavit.
On 13 July 2022, Mr Wemyss sent an email to Mr Simunovich advising Mr Simunovich that the truck hire invoice should be sent to Corinthian not BTM and states:[65]
Having said this the hourly rate/charges should reflect the amount I have been out of pocket due to your Surbiton project, as was always agreed by you and me in (and in IDP Holdings opinion also by the way).
[65] First Wemyss Affidavit 'NW9'.
On 31 August 2022, Mr Wemyss proposes future correspondence in relation to the unresolved dispute be through lawyers.[66]
[66] First Wemyss Affidavit 'MW10'.
On the evidence it is not possible to make a finding as to what rate was agreed for the hire of the trucks other than that Mr Wemyss was prepared to pay $100 to $110 per hour for the truck hire and $400 per week for the generator.
The plaintiff proposes the amount in the statutory demand be varied by reducing it by $17,100 which reflects the difference between a rate of $100 per hour for the truck (the lower of the amounts Mr Wemyss indicated he would be prepared to pay) and the rate which was charged being $125 per hour.
The defendant accepts that if there is a finding that a genuine dispute exists as to the amount of the debt, that dispute is limited to the difference between the rate of $125 per hour plus GST and $100 per hour.
The documentary evidence permits a finding that Corinthian would have been prepared to pay at least $100 per hour for the truck hire and $400 per week for the generator hire and has not paid any amount pursuant to the invoice or statutory demand. That reduces the amount in the statutory demand from $93,605 to $76,505 and removes the dispute as to the amount.

Conclusion and Orders

I am not satisfied that the incorrect party issued the statutory demand. The plaintiff has not established that a genuine dispute exists regarding the existence of the debt on this basis.
However, there is a genuine dispute about the amount stated in the demand confined to the difference between the rate Mr Wemyss stated he was prepared to pay and the rate at which he was invoiced. In the exercise of the discretion conferred by s 459H(4) the statutory demand will be varied by the sum of $17,100 which makes the statutory demand one for $76,505.
I will hear from the parties in respect of costs.

ANNEXURE A

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CM
Associate to the Acting Master
26 JULY 2023