Eastland Technology Australia Ltd v Whisson

[2003] WASC 54

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   EASTLAND TECHNOLOGY AUSTRALIA LTD -v- WHISSON & ANOR [2003] WASC 54

CORAM:   ACTING MASTER CHAPMAN

HEARD:   11 FEBRUARY 2003

DELIVERED          :   25 MARCH 2003

FILE NO/S:   COR 334 of 2002

BETWEEN:   EASTLAND TECHNOLOGY AUSTRALIA LTD

Applicant

AND

MAXWELL EDMUND WHISSON
First Respondent

DEAN BRIAN PRESTIDGE
Second Defendant

Catchwords:

Corporation - Statutory demand - Genuine dispute

Legislation:

Nil

Result:

Statutory demand set aside

Category:    B

Representation:

Counsel:

Applicant:     Mr P I Jooste QC

First Respondent           :     Mr B W Ashdown

Second Defendant         :     Mr B W Ashdown

Solicitors:

Applicant:     E J Picton-Warlow

First Respondent           :     B W Ashdown

Second Defendant         :     B W Ashdown

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

Eastland Technology Australia Ltd & Ors Whisson & Ors [2002] WASC 150

Case(s) also cited:

Asian Century Holdings Inc v Fleuris [2000] WASCA 59

Barclays Australia v Mike Gaffikin Marine (1996) 14 ACLC 1367

Buddies Liquor Pty Ltd v Wah Lai Investment (Australia) Pty Ltd (2001) 19 ACLC 855

Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 12 ACLC 334

Eden Bay Pty Ltd v Bennett & Co (1997) 15 ACLC 1634

Equuscorp Pty Ltd v Perpetual Trustees WA Ltd (1998) 16 ACLC 12

Eumina Investments Pty Ltd v Westpac Banking Corporation (1998) ACLC 1440

Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 14 ACLC 1703

Hoare Bros v Deputy Commissioner of Taxation (1995) 13 ACLC 358

Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACLC 1062

Pacific Capital Ltd v BBC Hardware Ltd (1995) 122 FLR 36

SMEC International v CEMS Engineering (2001) 19 ACLC 1309

Spencer Constructions Pty tLtd v G & M Aldridge Pty Ltd (1997) 15 ACLC 1001

Turner Equity Pty Ltd v Melvista Park Pty Ltd, unreported; SCt of WA; Library No 960538; 18 January 1996

Westpoint Management Pty Ltd v Goakes [2002] WASCA 317

Wilden Pty Ltd v Greenco Pty Ltd (1995) 13 ACLC 1039

1. ACTING MASTER CHAPMAN:  The applicant, by way of application filed on 12 November 2002, seeks to set aside a statutory demand served on 23 October 2002, the statutory demand being dated 22 October 2002.  The demand is for $320,000.

2. A statutory demand for $623,965.02 dated 21 December 2001 had been served on the applicant.  On 15 March 2002 Master Bredmeyer set that statutory demand aside as he considered the sums claimed in it were genuinely in dispute.  That is not remarkable, save that apart from item 2.6 in the statutory demand dated 22 October 2002, the other items are identical to some of the amounts claimed in the statutory demand dated 21 December 2001.

3. The application is based upon the proposition that there is a genuine dispute, an offsetting claim and other good reason.  Counsel for the applicant submits that nothing has changed since Master Bredmeyer made his decision.  Counsel for the respondents submits that since the decision of Master Bredmeyer the matter has come before Templeman J where he delivered his reasons in Eastland Technology Australia Ltd & Ors Whisson & Ors [2002] WASC 150.

4. Although his Honour's decision related to a declaration, counsel for the respondents submits that the issues standing behind the declaration are subject to estoppel created by the judgment.  Counsel for the applicant argues that his Honour made no findings in regard to what sums were due under the licence agreement, nor the terms of the licence agreement in that regard.  Counsel argues that all of the amounts claimed in the statutory demand are in dispute and are properly to be determined by way of arbitration.  It is said the decision of his Honour does not affect that.  An appeal has been commenced in relation to his Honour's decision and counsel further submits that even if the decision is upheld on appeal, the dispute as to the amounts will still exist. 

5. In the circumstances of this case I do not consider the decision of his Honour prohits the applicant from disputing the amounts claimed in the statutory demand.  I accept that the fact that an appeal has been instituted in relation to his Honour's decision is not decisive but it is nonetheless a relevant factor to be taken into account.

6. There are, in my view, a number of issues which are open to be argued in relation to the existence of the debt, the amount of any debt and whether or not there is an offsetting claim.  There are issues such as the correct interpretation of the licence agreement, the correct calculation of any licence fee, whether any debt was due and payable at the relevant time, the effect of the termination notice and any breach of the licence agreement.

7. Having considered all of the relevant factors, I consider a genuine dispute as to the existence and the amount of the debt does exist and accordingly I would set aside the statutory demand.

8. Given the particular circumstances of this case I am not persuaded that the service of the statutory demand on 23 October 2002 on behalf of the respondents is an abuse of process and do not consider it appropriate to make a cost order on an indemnity basis.  However, in light of the fact that the statutory demand was very similar in its terms to the one previously set aside and the relevance of the decision of Templeman J, I consider it appropriate to give a certificate for senior counsel.

9. Should the applicant wish to proceed with the question of arbitration I consider a formal application should be made and dealt with in the usual way.  I do not consider it appropriate to deal with that question at this time.