D Club Pty Ltd v Grego

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   D CLUB PTY LTD -v- GREGO [2009] WASC 24

CORAM:   MASTER SANDERSON

HEARD:   29 JANUARY 2009

DELIVERED          :   17 FEBRUARY 2009

FILE NO/S:   COR 169 of 2008

BETWEEN:   D CLUB PTY LTD (ACN 095 099 639)

Plaintiff

AND

TONY GREGO
Defendant

Catchwords:

Corporations law - Application to set aside statutory demand - Turns on own facts

Legislation:

Nil

Result:

Demand set aside

Category:    B

Representation:

Counsel:

Plaintiff:     Mr J D MacLaurin

Defendant:     Mr K A Dundo

Solicitors:

Plaintiff:     Holborn Lenhoff Massey

Defendant:     Q Legal

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

Nil

1. MASTER SANDERSON:  This is the plaintiff's application to set aside a statutory demand.  At the conclusion of the hearing I indicated to the parties that I would set aside the demand on the grounds that there was a genuine dispute between the parties.  I indicated I would publish reasons at a later date.  These are those reasons.

2. The application was brought under s 459G and s 459H of the Corporations Act 2001 (Cth). There was no dispute between the parties as to the applicable principles. It was accepted on all sides that all the plaintiff needed to do was establish that the dispute was bona fide and that the grounds for alleging the dispute were real and not spurious, hypothetical, illusory or misconceived. What the plaintiff must show is that there is a plausible contention requiring investigation. The court does not weigh the merits of any alleged dispute. All that is required is a finding that the dispute is genuine.

3. A copy of the statutory demand appears as annexure SP1 to the affidavit of Sedick Price sworn 6 November 2008 and filed in support of this application.  The affidavit accompanying the statutory demand was sworn by the defendant.  Paragraph 1 of that affidavit is in the following terms:

   I am the creditor in respect of a debt of $348,288 owed by D Club Pty Ltd to me relating to an unsecured loan made by me to the debtor company and the resultant line account which was established with the debtor company.

4. On the face of it the defendant's claim against the plaintiff is straight‑forward.  The defendant is a share holder in the plaintiff.  He says, as is not uncommon, he has made a loan to the plaintiff.  It is worthy of note that the wording of the paragraph suggests that there was only one loan made by the defendant to the plaintiff.  That in turn suggests that it should be possible to easily identify in the accounts of the plaintiff, the date upon which the loan was made and the amount.

5. In fact, Mr Price says that such identification of a loan by the defendant to the plaintiff is not possible.  In his affidavit sworn 6 November 2008 he says:

   I have conducted a search of the books and records of the plaintiff and can find no record that the defendant ever advanced money to the [plaintiff]. I therefore…