Fuelink Pty Ltd v Rosenwald
[2003] WASC 159
FUELINK PTY LTD -v- ROSENWALD & ANOR [2003] WASC 159
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 159 | |
| 19/08/2003 | |||
| Case No: | CIV:2673/2002 | 12 AUGUST 2003 | |
| Coram: | MASTER SANDERSON | 12/08/03 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Statutory demand set aside Unconditional leave to defend | ||
| B | |||
| PDF Version |
| Parties: | FUELINK PTY LTD (ACN 076 977 127) ARTHUR FRANCOIS ROSENWALD GEERTRUDA MARIA MATTHEA ROSENWALD KIRINJI PTY LTD (ACN 009 032 133) |
Catchwords: | Corporations Act Application to set aside statutory demand Turns on own facts Application for summary judgment Arguable defence Turns on own facts |
Legislation: | Nil |
Case References: | Nil Amoco Australia Pty Ltd v Rocco Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288 Bateman Project Engineering Pty Ltd v Resolute Ltd [2000] WASC 284 Bentley v Nelson [1963] WAR 89 Bond v Larobi Pty Ltd (1992) 6 WAR 489 Buckinghamshire County Council v Moran [1990] 1 Ch 623 Capital Bay Investments Pty Ltd v Richard Szklarz Architects Pty Ltd, unreported; SCt of WA; Library No 980503; 8 September 1998 Commonwealth Development Bank v Windemere Pastoral [1999] NSWSC 518 Consolidated Trust Co Ltd v Naylor [1936] 55 CLR 423 Covino v Bendag Manufacturing Pty Ltd [1983] 1 NSWLR 237 Donnelly v National Australia Bank, unreported; FCt SCt of WA; Library No 920283; 19 May 1992 Esso Petroleum Co Ltd v Harper's Garage (Stourport) Pty Ltd [1968] AC 269 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACLC 669 Fancourt & Anor v Mercantile Credits Ltd (1983) 154 CLR 87 Garcia v National Australia Bank Ltd (1993) 5 BPR 11,996 General Motors Acceptance Corporation v Johnson [1930] 4 DLR 291 George v Greater Adelaide Land Development Co Ltd (1929) 43 CLR 91 GE Capital Australia v Davis [2000] NSWSC 1146 Holt v Heatherfield Trust Ltd [1942] 2 KB 1 Hurley v McDonalds Australia Ltd (2000) ATPR 41-741 Indrisie v General Credits Ltd [1985] VR 251 Kwik & Swift Co Pty Ltd v Shawyer [2002] WASC 14 Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989 Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 Morrison Knudsen Corporation of Australia Ltd v Australian National Railways Commission [1996] 947 FCA 1 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd & Ors [1976] WAR 109 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 North v Marra (1981) 148 CLR 42 Peters American Delivery Co Ltd v Patricia's Chocolates & Candies Pty Ltd (1947) 77 CLR 574 Re Juson Pty Ltd (1992) 8 WAR 13 Re Kleiss v Capt'n Snooze Pty Ltd (1996) 61 FCR 436 Re Partnership Pacific Securities Ltd [1994] 1 Qd R 410 Royal Premier Pty Ltd v Taleski [2001] WASCA 48 State Bank of Victoria v Parry & Ors (1989) 7 ACLC 226 The State Bank of Victoria v Parry [1989] WAR 240 Westwind Air Charter Pty Ltd & Anor v Hawker de Havilland Ltd (1990) 3 WAR 71 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ARTHUR FRANCOIS ROSENWALD
GEERTRUDA MARIA MATTHEA ROSENWALD
Defendants
- Plaintiff
AND
FUELINK PTY LTD (ACN 076 977 127)
Defendant
(Page 2)
Catchwords:
Corporations Act - Application to set aside statutory demand - Turns on own facts - Application for summary judgment - Arguable defence - Turns on own facts
Legislation:
Nil
Result:
Statutory demand set aside
Unconditional leave to defend
Category: B
Representation:
CIV 2673 of 2002
Counsel:
Plaintiff : Mr T H Brickhill
Defendants : Mr M D Cuerden
Solicitors:
Plaintiff : Brickhills
Defendants : Michael Paterson & Associates
COR 90 of 2003
Counsel:
Plaintiff : Mr M D Cuerden
Defendant : Mr T H Brickhill
Solicitors:
Plaintiff : Michael Paterson & Associates
Defendant : Brickhills
(Page 3)
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Amoco Australia Pty Ltd v Rocco Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288
Bateman Project Engineering Pty Ltd v Resolute Ltd [2000] WASC 284
Bentley v Nelson [1963] WAR 89
Bond v Larobi Pty Ltd (1992) 6 WAR 489
Buckinghamshire County Council v Moran [1990] 1 Ch 623
Capital Bay Investments Pty Ltd v Richard Szklarz Architects Pty Ltd, unreported; SCt of WA; Library No 980503; 8 September 1998
Commonwealth Development Bank v Windemere Pastoral [1999] NSWSC 518
Consolidated Trust Co Ltd v Naylor [1936] 55 CLR 423
Covino v Bendag Manufacturing Pty Ltd [1983] 1 NSWLR 237
Donnelly v National Australia Bank, unreported; FCt SCt of WA; Library No 920283; 19 May 1992
Esso Petroleum Co Ltd v Harper's Garage (Stourport) Pty Ltd [1968] AC 269
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACLC 669
Fancourt & Anor v Mercantile Credits Ltd (1983) 154 CLR 87
Garcia v National Australia Bank Ltd (1993) 5 BPR 11,996
General Motors Acceptance Corporation v Johnson [1930] 4 DLR 291
George v Greater Adelaide Land Development Co Ltd (1929) 43 CLR 91
GE Capital Australia v Davis [2000] NSWSC 1146
Holt v Heatherfield Trust Ltd [1942] 2 KB 1
Hurley v McDonalds Australia Ltd (2000) ATPR 41-741
Indrisie v General Credits Ltd [1985] VR 251
Kwik & Swift Co Pty Ltd v Shawyer [2002] WASC 14
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989
Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743
Morrison Knudsen Corporation of Australia Ltd v Australian National Railways Commission [1996] 947 FCA 1
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd & Ors [1976] WAR 109
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
North v Marra (1981) 148 CLR 42
(Page 4)
Peters American Delivery Co Ltd v Patricia's Chocolates & Candies Pty Ltd (1947) 77 CLR 574
Re Juson Pty Ltd (1992) 8 WAR 13
Re Kleiss v Capt'n Snooze Pty Ltd (1996) 61 FCR 436
Re Partnership Pacific Securities Ltd [1994] 1 Qd R 410
Royal Premier Pty Ltd v Taleski [2001] WASCA 48
State Bank of Victoria v Parry & Ors (1989) 7 ACLC 226
The State Bank of Victoria v Parry [1989] WAR 240
Westwind Air Charter Pty Ltd & Anor v Hawker de Havilland Ltd (1990) 3 WAR 71
(Page 5)
1 MASTER SANDERSON: By originating process filed 26 March 2003 in COR 90 of 2003 the plaintiff applied to set aside a statutory demand served on 5 March 2003. By summons dated 4 March 2003 Fuelink Pty Ltd applied for summary judgment against Mr and Mrs Rosenwald in CIV 2673 of 2002. At the conclusion of the hearing I indicated to the parties that I would set aside the statutory demand, refuse the summary judgment application and I would publish reasons at a later date. These are those reasons.
2 I will deal first with the application to set aside the statutory demand. The amount claimed in the statutory demand was $1,556,709.05. A copy of the statutory demand is to be found as annexure "AFR1" to the affidavit of Arthur Francois Rosenwald ("Mr Rosenwald"), sworn 26 March 2003 and filed in opposition to the application. Attached to the statutory demand were two schedules. Schedule A showed a series of entries dating from 2 March 2001 and running through to 28 May 2001. The total of these entries is said to be $1,490,416.82. Schedule B contains four entries, the first on 13 July 2001, the last on 27 July 2001. The total for these amounts is $66,292.23. Thus all of the debts the subject of the statutory demand were said to arise between 2 March 2001 and 27 July 2001.
3 The relationship between the plaintiff and the defendant which gives rise to the statutory demand can be summarised in the following way. On 1 July 1998 the plaintiff and Great Western Petroleum (WA) Pty Ltd entered into an agreement entitled Shell Distributor Sales Agreement: see annexure "AFR3" to Mr Rosenwald's affidavit of 26 March 2003. Essentially this agreement regulated the supply of fuel by Great Western Petroleum (WA) Pty Ltd to the plaintiff. The plaintiff then on-sold the fuel from various retail fuel outlets. At the same time this agreement was signed, the parties entered into a further agreement referred to as "the Charge": see annexure "AFR4" to Mr Rosenwald's affidavit of 26 March 2003. Without going into details, the Charge is, in essence, a fixed and floating security over the assets of the plaintiff to secure payment for fuel supplied under the distribution agreement.
4 It is common ground between the parties that on 31 May 2001 the defendant took over the operations of Great Western Petroleum (WA) Pty Ltd and thereafter traded under the business name Great Western Petroleum. As part of this deal, Great Western Petroleum (WA) Pty Ltd assigned all of its interests in both the distribution agreement and the Charge to the defendant. No notice of this assignment was given by the defendant to the plaintiff, at least until 20 August 2001.
(Page 6)
5 For some time the plaintiff had been falling behind in payments due for deliveries of fuel. By 20 August 2001 the plaintiff's debt was said to be in excess of $1.6 million: see affidavit of Michelangelo Lamattina sworn 21 May 2003, exhibit "C". A meeting was held between representatives of the plaintiff and defendant on 14 August 2001. That led to the letter from the defendant to the plaintiff of 20 August 2001. In part, that letter reads as follows:
"In order for the old debt to be retired and the total amount to be contained and reduced, you will only receive fuel deliveries from GWP if a bank cheque for an amount equivalent to or greater than the value of any proposed delivery is received at our North Fremantle office prior to that delivery being made.
These funds will be allocated against the oldest debt."
(My underlining)
6 The invoices attached to various affidavits demonstrate clearly that this was what was done. It was rather a curious arrangement. The amount paid by the plaintiff to the defendant prior to the delivery of any fuel equated roughly with the value of the delivery being made. But rather than the amount paid by the plaintiff being set against the value of the fuel delivered, the amount paid was set against the old outstanding debt. The amount payable for the delivery then was treated as a new debt incurred as of the date of delivery. The effect of this, the plaintiff says, is that it has effectively paid off what might be called the old debt, the amount claimed in the statutory demand. At the very least, it is said, there is a dispute about the plaintiff's indebtedness to the defendant.
7 The position is compounded because of the failure of the defendant to give to the plaintiff any notice of the assignment of the distribution agreement or the charge. The plaintiff says that the effect of this failure to give notice is that after 31 March 2001 the plaintiff did not incur any liability to the defendant, pursuant to the distribution agreement. The plaintiff conceded that it may be liable to pay the defendant for the fuel it received, but such a claim could not be made pursuant to the distribution agreement and would not be subject to the Charge. Doubtless this will provide an interesting contest at trial. But for the purposes of this application, it is only necessary to determine whether there is a genuine dispute as between the plaintiff and the defendant.
8 I was satisfied that such a dispute exists.
(Page 7)
9 I should say that the material filed by the parties in this matter was voluminous and there were a number of other issues raised by the plaintiff in support of its application. But I need not deal with any of these additional matters. It is sufficient if I say that I am satisfied that there is a genuine dispute in relation to the debt, the subject of the statutory demand, and that consequently the demand ought be set aside.
10 I will hear the parties as to the form of orders and as to costs.
11 Turning then to the summary judgment application, Fuelink Pty Ltd sues Mr and Mrs Rosenwald as guarantors under the charge. Given what I have said about the statutory demand, it is clear the plaintiff cannot obtain summary judgment in the circumstances of this case. Given the matter will eventually go to trial, it is inappropriate if I say too much about the facts and the nature of Mr and Mrs Rosenwald's defence. However, I am satisfied that there is an argument to the effect that the amount presently claimed by Fuelink Pty Ltd is not subject to the charge and therefore not subject to the guarantee. Accordingly the application for summary judgment is dismissed. The costs of this application should be costs in the cause.
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