Exploration & Mining Consultants Pty Ltd v SM@RTTRANS Ltd

[2001] WASCA 381

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   EXPLORATION & MINING CONSULTANTS PTY LTD -v- SM@RTTRANS LTD [2001] WASCA 381

CORAM:   WALLWORK J

ANDERSON J
SCOTT J

HEARD:   19 NOVEMBER 2001

DELIVERED          :   19 NOVEMBER 2001

FILE NO/S:   FUL 118 of 2001

BETWEEN:   EXPLORATION & MINING CONSULTANTS PTY LTD (ACN 068 004 982)

Appellant (Defendant)

AND

SM@RTTRANS LTD
Respondent (Plaintiff)

Catchwords:

Corporations - Statutory demand for payment - Debt not disputed - Cross­claim - Arguable case for set­off - Demand set aside by Master - Appeal - No error shown

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant (Defendant)    :     Mr M S Macdonald

Respondent (Plaintiff)    :     Mr K L Christensen

Solicitors:

Appellant (Defendant)    :     Macdonald Rudder

Respondent (Plaintiff)    :     Tottle Christensen

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

Nil

Case(s) also cited:

Asian Century Holdings Inc v Fleuris Pty Ltd [2000] WASCA 59

Bilbie v Lumley (1802) 2 East 469; (1802) 102 ER 448

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353

Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 147 ALR 444

Turner Corporation (WA) Pty Ltd v Blackburne & Dixon Pty Ltd [1999] WASCA 294

1. WALLWORK J:  I agree with the reasons Anderson J.  I cannot see any error in the reasons of the learned Master and I think his decision was correct.  There is nothing further I wish to add.

2. ANDERSON J:  This matter arises out of a contract between the appellant and the respondent concerning the purchase and sale of what I understand to be a computer software program which had been developed or worked up to a certain stage of development by the appellant, Exploration and Mining Consultants Pty Ltd.  The appellant is the vendor of the software program to the respondent Sm@rttrans Ltd.  Settlement of the purchase was to take place on 1 October 1999 and did take place on that date, it would appear.

3. Shortly after 1 October 1999, the appellant sent three invoices to the respondent for what would appear on the evidence to be work done in further developing the software program.  The total of these invoices exceeded $100,000.  The invoices were paid.  The respondent's chief executive, a Mr Smartt, has deposed in his affidavits to the effect that he arranged for the respondent to pay these invoices, himself approving them and authorising them for payment, in the belief that the work the subject of the invoices was work actually done by the appellants for the respondent in circumstances giving rise to a legal obligation in the respondent to pay the invoices.

4. That is not exactly how it is put in Mr Smartt's affidavit, but on any view of the effect of the affidavits that is what Mr Smartt's evidence comes down to.  I refer in particular to par 11 of Mr Smartt's affidavit of 4 May 2001.

5. There is no need to go into the intricacies of the proceedings as a whole.  They involve a statutory demand issued by the appellant to the respondent under the Corporations Act and an application by the respondent to have that demand set aside on the basis that the respondent has a cross‑claim against the appellant which is said to arise out of the fact that the respondent made payment of these invoices under a mistaken view that the invoices were payable.

6. The question before the Master was whether there was sufficient evidence disclosed in the respondent's affidavit material to show that there was an arguable case that the payments were made under a mistake of fact or law.  The Master decided on the affidavit of Mr Smartt that there was an arguable case.

1. The appeal to this court is essentially on the basis that there was no justification for the Master to reach that conclusion.  In my opinion, the affidavit evidence is sufficient to disclose an arguable case that the payments were mistakenly made.  That is sufficient, in my opinion, to dispose of the appeal.

2. I think that the appeal is to be dismissed on the basis that the Master was not wrong in reaching the conclusion which he reached, that there was an arguable case as between the respondent and the appellant in respect to the mistaken payment of the invoices in question. 

3. SCOTT J:  I also agree that the appeal should be dismissed and I would add that I am quite unable to detect any error in the reasons of Master Sanderson and in particular, in my view, the conclusion that the learned Master reaches at par 11 of his reasons was a conclusion which was properly open to him on the material that was then before the Court.  I would also dismiss the appeal.