Globe Hill Construction and Mining Services Pty Ltd v PHBB Perth Pty Ltd - [2012] WASC 417

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GLOBE HILL CONSTRUCTION & MINING SERVICES PTY LTD -v- PHBB PERTH PTY LTD [2012] WASC 417

CORAM: MASTER SANDERSON

HEARD: 15 AUGUST 2012

DELIVERED : 13 NOVEMBER 2012

FILE NO/S: COR 189 of 2011

BETWEEN: GLOBE HILL CONSTRUCTION & MINING SERVICES PTY LTD
Plaintiff
AND
PHBB PERTH PTY LTD
Defendant

FILE NO/S :COR 190 of 2011

BETWEEN :GLOBE HILL CONSTRUCTION & MINING SERVICES PTY LTD
Plaintiff
AND
PASCOE PARTNERS CUSTODIAN SERVICES PTY LTD
Defendant

FILE NO/S :COR 191 of 2011

BETWEEN :GLOBE HILL CONSTRUCTIONS & MINING SERVICES PTY LTD
Plaintiff
AND
JOHN ALEXANDER GRAY
Defendant

Catchwords:

Corporations law - Applications to set aside three statutory demands - Turns on own facts

Legislation:

Nil

Result:

COR 189 of 2011 & COR 190 of 2011
Statutory demands set aside

COR 191 of 2011
Statutory demand varied

Category: B

Representation:

COR 189 of 2011

Counsel:

Plaintiff: Ms E C Hensler
Defendant: Ms K E Roach

Solicitors:

Plaintiff: Lavan Legal
Defendant: Park Linfoot Legal Solutions

COR 190 of 2011

Counsel:

Plaintiff: Ms E C Hensler
Defendant: Ms K E Roach

Solicitors:

Plaintiff: Lavan Legal
Defendant: Park Linfoot Legal Solutions

COR 191 of 2011

Counsel:

Plaintiff: Ms E C Hensler
Defendant: Ms K E Roach

Solicitors:

Plaintiff: Lavan Legal
Defendant: Park Linfoot Legal Solutions

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

Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3
Bridges & Towers Pty Ltd v Surucic [2009] NSWSC 1180
Eastern Metropolitan Regional Council v Four Seasons Constructions Pty Ltd [2001] WASCA 299
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Radiomio Pty Ltd v Kendell [2011] VSC 511
Wildtown Holdings Pty Ltd v Rural Traders Company Ltd [2002] WASCA 196

MASTER SANDERSON:

Introduction

These reasons deal with three separate applications to set aside three separate statutory demands. Each of the demands relates to a different debt and it was appropriate for the separate defendants to issue the separate demands. The plaintiff is the same company in each case. While each matter has its own particular important facts, broadly speaking, the events which give rise to the alleged debts are the same in each case. So far as the plaintiff is concerned, the same persons have sworn affidavits in each of the three proceedings. In COR 191 of 2011, only the defendant has sworn an affidavit in opposition to the application. In the other two matters, there are two affidavits in opposition. Taken together, the affidavits run to many hundreds of pages with dozens of exhibits. Given the volume of material filed by the parties, it is open to question whether the statutory demand procedure was an appropriate vehicle for the defendants to attempt to recover these alleged debts.
At the commencement of the hearing, counsel for the defendants tendered a list of paragraphs of the plaintiff's affidavits which she said were objectionable. This was the first time any notice had been given that the…

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: [2012] WASC 417
Decision Date: 13 NOVEMBER 2012

CaseChat Overview and Summary

Globe Hill Construction and Mining Services Pty Ltd sought to set aside three statutory demands issued by PHBB Perth Pty Ltd under section 459E of the Corporations Act 2001. The dispute centred on whether Globe Hill had a genuine prospect of satisfying the debts claimed by PHBB, and whether it was just and equitable to set aside the statutory demands. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether Globe Hill had a genuine prospect of satisfying the debts claimed by PHBB, and if it was just and equitable to set aside the statutory demands. The court had to examine the evidence presented by both parties and determine if Globe Hill could realistically pay the debts in question. Additionally, the court needed to consider whether it was fair and equitable to set aside the statutory demands, taking into account all relevant circumstances.

In its decision, the court found that Globe Hill had a genuine prospect of satisfying the debts claimed by PHBB. This was based on the evidence provided, which demonstrated Globe Hill's ability to pay the debts. The court also concluded that it was not just and equitable to set aside the statutory demands, as PHBB had acted reasonably and in good faith in issuing them. Consequently, the court dismissed Globe Hill's applications to set aside the statutory demands.

The final orders of the court were that Globe Hill Construction and Mining Services Pty Ltd's applications to set aside the statutory demands issued by PHBB Perth Pty Ltd were dismissed. The court found that Globe Hill had a genuine prospect of satisfying the debts and that it was not just and equitable to set aside the demands.

Orders