Grocon v CFMEU

[2014] VSC 142

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT - CORPORATIONS LIST

S CI  2014 00250

UNO PREMIUM AUSTRALIA PTY LTD (ACN 156 291 253)	Plaintiff
v
MODAKBOARD AUSTRALIA PTY LIMITED (ACN 150 520 068)	Defendant

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JUDGE:	RANDALL AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2014
DATE OF JUDGMENT:	2 April 2014
CASE MAY BE CITED AS:	Uno Premium Australia Pty Ltd v Modakboard Australia Pty Limited
MEDIUM NEUTRAL CITATION:	[2014] VSC 142	Ex tempore — Revised 2 April 2014

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CORPORATIONS — Corporations Act 2001 (Cth) — setting aside statutory demand — offsetting claim.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Lapirow	Davies Moloney
For the Defendant	Ms E. Cohen	Dougherty & Colleagues

HIS HONOUR:

1. This is an application by the plaintiff to set aside a statutory demand served by the defendant upon it.  The description of the debt set out in the statutory demand was for goods sold and delivered between 13 March 2013 and 18 September 2013 in the sum of $41,449.67.  The plaintiff did not pursue any dispute about whether that sum was due and payable.  The sole issue for determination was whether there was a genuine dispute about the offsetting claim put forward by the plaintiff. 

1. “Genuine dispute” connotes a plausible contention requiring investigation and raises much the same sort of consideration as the “serious question to be tried” criterion.  The various tests require me to identify whether there is a genuine dispute without resolving the same.  In identifying the offsetting claim, I need to consider whether it has a “sufficient objective existence and prima facie plausibility to distinguish it from … assertion” as referred to by Dodds-Streeton J in TR Administration.[1] 

   [1](2008) 66 ACSR 67, [71].

1. The plaintiff contends that it has an offsetting claim, inter alia, in the sum of approximately $99,000 arising from two tax invoices provided to the defendant in October of 2013. 

1. The defendant disputes any liability to pay and identified issues with respect to the genuineness of the offsetting claim.  Those issues are as follows:

·     whether the May 2013 intercourse constituted an order by the defendant;

·     if it were accepted that there was an order, was it varied to reduce the amount of product to be supplied or even cancelled;

·     whether time for delivery was an essential term and whether the defendant accepted the plaintiff’s repudiation by not supplying within the requisite time;

·     whether there was any delivery, or in the absence of the same whether there was any obligation to pay;

·     whether the plaintiff (particularly, as the invoices contained a ROT clause) was left to make a claim in damages rather than a claim for the price of the goods;

·     who were the contracting parties given that invoices were initially provided by a company related to the plaintiff addressed to a company other than the defendant which were subsequently withdrawn and ultimately replaced by the invoices referred to in support of the offsetting claim.

1. However, in the end, these are matters which ought to be dealt with by curial proceeding.  Accordingly, I am satisfied that there is a plausible contention requiring investigation with respect to the offsetting claim which has sufficient objective existence and is prima facie plausible. 

1. Accordingly, I set aside the statutory demand dated 18 December 2013.  The defendant will pay the plaintiff’s costs on the standard basis.

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