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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 276
Decision Date

CaseChat Overview and Summary

Corinthian Mining Pty Ltd (Corinthian) is seeking to set aside or vary a statutory demand for payment of a non-judgment debt in the sum of $93,605 issued by Lloyd George Mining Pty Ltd (LGM) pursuant to s 459G of the Corporations Act 2001 (Cth) (the Act). The application was heard by Acting Master McDonald on 30 March 2023 and further affidavit evidence was filed on 4 April 2023 and 28 April 2023. Corinthian's submissions were made after the defendant's submissions. Corinthian has not succeeded in establishing that there is a genuine dispute as to the identity of the creditor. There is no evidence to suggest that Corinthian was unaware that LGM was the creditor. On the contrary, the evidence shows Corinthian understood that LGM was the creditor. Corinthian has, however, succeeded in establishing a genuine dispute as to the amount of the debt. The amount claimed in the statutory demand is reduced to $76,505.

Orders