Gianfranco Constructions Pty Ltd v Ground and Foundation Supports Pty Ltd
[2000] WASC 245
•6 OCTOBER 2000
GIANFRANCO CONSTRUCTIONS PTY LTD -v- GROUND AND FOUNDATION SUPPORTS PTY LTD [2000] WASC 245
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 245 | |
| 06/10/2000 | |||
| Case No: | COR:238/2000 | 20 SEPTEMBER 2000 | |
| Coram: | MASTER BREDMEYER | 20/09/00 | |
| 3 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | GIANFRANCO CONSTRUCTIONS PTY LTD (ACN 053 450 712) GROUND AND FOUNDATION SUPPORTS PTY LTD (ACN 009 432 964) |
Catchwords: | Corporations Statutory demand Genuine dispute |
Legislation: | Corporations Law, s 459H(1) |
Case References: | Spencer Constructions Pty Ltd v G & M Aidridge Pty Ltd (1997) 15 ACLC 1001 Taylor v Johnson (1983) 151 CLR 422 Turner Corporation (WA) Pty Ltd v Blackburn & Dixon Pty Ltd [1999] WASCA 294 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
GROUND AND FOUNDATION SUPPORTS PTY LTD (ACN 009 432 964)
Defendant
Catchwords:
Corporations - Statutory demand - Genuine dispute
Legislation:
Corporations Law, s 459H(1)
(Page 2)
Result:
Application allowed
Representation:
Counsel:
Plaintiff : Mr J Scovell
Defendant : Mr G B Giles
Solicitors:
Plaintiff : Healy Pynt
Defendant : Taylor Smart
Case(s) referred to in judgment(s):
Spencer Constructions Pty Ltd v G & M Aidridge Pty Ltd (1997) 15 ACLC 1001
Taylor v Johnson (1983) 151 CLR 422
Turner Corporation (WA) Pty Ltd v Blackburn & Dixon Pty Ltd [1999] WASCA 294
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: A statutory demand can be set aside if there is a genuine dispute or an offsetting claim: s 459H(1) of the Corporations Law. In this case the plaintiff says there is a genuine dispute as to why the debt of $109,178.50 is not paid. A genuine dispute is one which is bona fide and truly exists in fact and where the grounds alleging the existence of the dispute are real and not spurious, hypothetical, illusory, or misconceived: Spencer Constructions Pty Ltd v G & M Aidridge Pty Ltd (1997) 15 ACLC 1001 per the Federal Full Court, as adopted by our Full Court in Turner Corporation (WA) Pty Ltd v Blackburn & Dixon Pty Ltd [1999] WASCA 294.
2 The plaintiff says the piles are in the wrong place; they encroach onto Lot 6 next door. There is a surveyor's report dated 17 August 2000 showing the extent of the encroachment. Fourteen piles encroach and the extent of the encroachment varies from 201 mm - 345 mm. It would cost $100,000 to remedy. That is an estimate, but from a man with 23 years experience in the business. It could be more or less. It is sufficient in my view to say that the whole debt, the subject of the demand, is disputed.
3 The defendant relies on two letters of 4 August and 7 August 2000 as constituting an agreement that the plaintiff would pay to the defendant $109,178.58 in "full and final settlement of all claims between the parties". That agreement - in the exchange of those letters - represents a compromise of two minor claims, one for $2,661.50 and approximately $744 on the labour claim for one and a half hours work. These reductions are apparently conceded by the defendant in asking $109,178.50.
4 However this "compromise agreement" is not a compromise agreement of the defective work claim which was not then known to the plaintiff's Mr Rasile. An agreement can be set aside on the basis of mistake of fact: see Taylor v Johnson (1983) 151 CLR 422.
5 I consider the plaintiff has raised a genuine dispute and this demand should be set aside. The defendant needs to sue or arbitrate for its claimed debt.
6 As an aside, I draw the attention of the parties to s 122 and s 123 of the Property Law Act 1969 (WA) which may be of assistance.
2
3
1