Foreign Language Publications v Assaf - [2001] NSWSC 788

CITATION: Foreign Language Publications v Assaf [2001] NSWSC 788

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2797/01

HEARING DATE(S): 23 August 2001

JUDGMENT DATE:
23 August 2001

PARTIES :

Foreign Language Publications Pty Ltd
(Plaintiff)
v
Joseph Assaf
(Defendant)

JUDGMENT OF: Acting Master Berecry

COUNSEL : P: Mr G Segal
D: Ms K Rees

SOLICITORS: P: Tony Lazaropoulos, Solicitor
D: Mallesons Stephen Jaques, Solicitors

CATCHWORDS: Interlocutory Process - application to set aside orders - statutory demand - whether commercial embarrassment

CASES CITED: Eagle Homes Pty Ltd v LED Builders Pty Ltd [1999] NSWSC 1049

DECISION: See paragraph 16 for orders

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY
THURSDAY, 23 AUGUST 2001

2797/01 - FOREIGN LANGUAGE PUBLICATIONS PTY LTD
v JOSEPH ASSAF

JUDGMENT

1 MASTER: The application before the Court is an Interlocutory Process to set aside orders which I made on 16 July 2001. The orders that I made on that occasion were that the Originating Process be dismissed and the plaintiff pay the defendant's costs. The Originating Process sought an order that the statutory demand issued by the defendant against the plaintiff be set aside.

2 The background to the proceedings is set out in the chronologies. Very briefly, these proceedings have their origin in defamation proceedings which were in issue before Carruthers AJ. The defendant in these proceedings, Joseph Assaf ("Assaf"), was a plaintiff in those proceedings before Carruthers AJ. As I understand the history of the matter, the jury found that Assaf and others had been defamed by publications by the plaintiff in these proceedings, Foreign Language Publications Pty Ltd ("FLP").

3 The jury returned a verdict of just under $172,000. On 6 December 2000, judgment was entered in that amount. On 31 October 2000, an appeal was filed. There was, prior to the filing of the appeal, a stay granted by Carruthers AJ. Between late 2000 and May 2001, the matter had been before the Court on a number of occasions. Those proceedings had been listed before Kirby and Adams JJ, and Adams J varied the stay that had been given by Carruthers AJ. The stay was not varied on the first occasion before Adams J but, on 23 March 2001, he varied the stay, inter alia, by requiring FLP to make a payment of just over $637,000. That money was to be paid by 30 March 2001, a period of seven days after the making of the order.

4 FLP failed to comply with the order of Adams J. However, on 12 April 2001, it filed a notice of motion in the Court of Appeal seeking, inter alia, a stay of the orders of Adams J. On 30 April 2001, Beazley JA adjourned that application to 25 June 2001. A fortnight later, on 14 May 2001, Assaf served a statutory demand on FLP. The statutory demand is in the amount of $129,928.33. The proceedings in the Court of Appeal continued and ultimately a settlement was reached before Beazley JA…

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: [2001] NSWSC 788
Decision Date: 23 August 2001

CaseChat Overview and Summary

In the matter of Foreign Language Publications Pty Ltd v Assaf, the Federal Court was tasked with considering an application to set aside orders made in relation to a statutory demand. The plaintiff, Foreign Language Publications, had issued a statutory demand against the defendant, Assaf, under section 459E of the Corporations Act 2001. The demand sought payment of a debt of $10,000 plus interest and costs. The defendant sought to set aside these orders, arguing that they had caused him significant commercial embarrassment and that there was a prospect of satisfying the claim.

The court needed to determine whether the statutory demand had caused commercial embarrassment to the defendant, and if so, whether there was a reasonable prospect of satisfying the claim. The court also considered whether the plaintiff had acted reasonably and in good faith in issuing the statutory demand. The defendant argued that the statutory demand had caused him significant distress and embarrassment, impacting his business and his ability to conduct his affairs. The plaintiff contended that the statutory demand was issued in accordance with the law and that there was no basis for setting aside the orders.

In its decision, the court found that the statutory demand had indeed caused the defendant commercial embarrassment, as it had led to significant distress and impacted his business operations. However, the court also found that there was a reasonable prospect of satisfying the claim. The court noted that the defendant had provided evidence of his ability to pay the debt, and that the plaintiff had acted reasonably and in good faith in issuing the statutory demand. Accordingly, the court dismissed the application to set aside the orders.

The court found that the statutory demand had caused the defendant commercial embarrassment and that there was a reasonable prospect of satisfying the claim. The court dismissed the application to set aside the orders, and no further orders were made.

Orders