DALCON CONSTRUCTION PTY LTD -v- ASA WINDOWS PTY LTD [2004] WASC 160

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 160
Case No:	COR:415/2003	Heard:	25 MAY 2004
Coram:	MASTER NEWNES	Delivered:	16/07/04
No of pages:	15	Judgment Part:	1 of 1
Result:	Amount of statutory demand reduced Application to set aside demand dismissed
Category:	B
PDF Version

Parties:	DALCON CONSTRUCTION PTY LTD (ACN 009 239 589) ASA WINDOWS PTY LTD (ACN 009 227 712)
Catchwords:	Corporations Application to set aside statutory demand Whether demand defective Whether genuine dispute as to debt or offsetting claim Turns on own facts
Legislation:	Corporations Act 2001 (WA), s 459H, s 459J
Case References:	Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 Eyota Pty Ltd v Havana Pty Ltd (1994) 12 ACLC 669 Financial Solutions Australasia Pty Ltd v Predella Pty Ltd [2002] WASCA 81 John Shearer Ltd v Gehl Co (1995) 18 ACSR 780 Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1993] 11 ACLC 1066 Royal Premier Pty Ltd v Taleski [2001] WASCA 48 Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1993) 12 ACSR 341 Topfelt Pty Ltd v State Bank of NSW (1993) 12 ACLC 15 Turner Corporation (WA) Pty Ltd v Blackburne & Dixon Pty Ltd [1999] WASCA 294 Wildtown Holdings Pty Ltd v Rural Traders Co Ltd [2002] WASCA 196 B & M Quality Constructions Pty Ltd v Buyrite Steel Supplies Pty Ltd (1997) 13 ACLC 88 Capital Bay Investments Pty Ltd v Richard Szklarz Architects Pty Ltd, unreported; SCt of WA; Library No 980503; 8 September 1998 Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 12 ACLC 334 Edge Technology Pty Ltd v Lite On Technology Corporation [2000] 34 ACSR 301 Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund [1996] 70 FCR 452 IFA Homeward Imports Pty Ltd v Shanghai Jerry Candle Co Ltd [2003] FCA 533 In the matter of Juson Pty Ltd (1992) 8 WAR 13 John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 12 ACLC 716 Kimberley Oil NL v Geological & Corporate Management Pty Ltd [2000] WASC 294 QIW Retailers Ltd v Felview Pty Ltd [1989] 7 ACLC 510 Re Morris Catering (Aust) Pty Ltd (1993) 11 ACSR 601 Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1994) 12 ACLC 111 Silk Holdings Pty Ltd v Palamore Pty Ltd, unreported; SCt of WA; Library No 980692; 26 November 1998 Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DALCON CONSTRUCTION PTY LTD -v- ASA WINDOWS PTY LTD [2004] WASC 160 CORAM : MASTER NEWNES HEARD : 25 MAY 2004 DELIVERED : 16 JULY 2004 FILE NO/S : COR 415 of 2003 BETWEEN : DALCON CONSTRUCTION PTY LTD (ACN 009 239 589)

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: [2004] WASC 160
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the plaintiff, Dalcon Construction Pty Ltd, applied to set aside a statutory demand issued by the defendant, ASA Windows Pty Ltd. The demand sought payment of $19,259.10, which the defendant claimed was outstanding on various invoices for goods and services supplied by the defendant to the plaintiff. The plaintiff contended that the demand was defective in that it did not specify the particular amounts claimed in respect of each invoice, and that the supporting affidavit did not establish the basis of the deponent's knowledge that the debt was due and payable. The plaintiff also argued that there was a genuine dispute as to the existence and amount of the debt and that it had an offsetting claim. The court found that the statutory demand was not defective, as the plaintiff was able to understand the basis of the defendant's claim and calculate the amount owing. The affidavit was also deemed sufficient. Regarding the genuine dispute and offsetting claims, the court found that there was a genuine dispute as to certain amounts, but the plaintiff had not established the basis of its offsetting claims. The court reduced the amount of the demand by $3611.22 and dismissed the application to set aside the statutory demand.

Orders