JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HL DIAGNOSTICS PTY LTD -v- PSYCADIAN LTD [2005] WASC 234
CORAM: MASTER NEWNES
HEARD: 8 JUNE 2005 & 14 OCTOBER 2005
DELIVERED : 2 NOVEMBER 2005
FILE NO/S: COR 108 of 2005
BETWEEN: HL DIAGNOSTICS PTY LTD (ACN 076 507 992)
Plaintiff
AND
PSYCADIAN LTD (ACN 112 763 747)
Defendant
Catchwords:
Corporations - Application to set aside statutory demand - Assignment of debt - Whether accompanying affidavit sworn by assignee sufficient - Whether deed of assignment must be stamped before statutory demand served - Effect of subsequent stamping - Whether money owing by reason of overpayment is "debt" within s 459E - Meaning of "debt" - Whether genuine dispute as to debt - Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 459E, s 459E(1), s 459E(4), s 459J
Property Law Act 1969 (WA), s 20, s 34
Stamp Act 1921 (WA), s 16, s 27
Supreme Court (Corporations) (WA) Rules 2004, r 5.2
Supreme Court Act 1935 (WA), s 32
Result:
Statutory demand set aside
Category: B
Representation:
Counsel:
Plaintiff: Mr G M Abbott
Defendant: Mr M L Bennett
Solicitors:
Plaintiff: Guy Provan
Defendant: Bennett & Co
Case(s) referred to in judgment(s):
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662
Azed Developments Pty Ltd v Frederick & Co Ltd (In Liq) (1994) 14 ACSR 54
B & M Quality Constructions Pty Ltd v Buyrite Steel Supplies Pty Ltd (1994) 15 ACSR 433
Baltic Shipping Co v Dillon (1993) 176 CLR 344
Bank of Australasia v Hall (1907) 4 CLR 1514
Chains & Power (Aust) Pty Ltd v Commonwealth Bank of Australia (1994) 15 ACSR 544
Commonwealth Bank of Australia v Butterell (1994) 35 NSWLR 64
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbow Ltd [1943] AC 32
Financial Solutions Australasia Pty Ltd v Predella Pty Ltd (2002) 26 WAR 306
Hamilhall Pty Ltd (In Liq) v A T Phillips Pty Ltd (1994) 15 ASCR 247
Hawkins v Bank of China (1992) 26 NSWLR 562
IFA Homeware Imports Pty Ltd v Shanghai Jerrys Candle Company Ltd [2003] FCA 533
In Re European Life Assurance Society (1869) LR 9 Eq 122
Jelin Pty Ltd v Johnson (1987) 5 ACLC 463
Mackenzie v Albany Finance Ltd [2003] WASC 100
Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd [2002] NSWSC 219
Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290
Ogilvie v Adams [1981] VR 1041
PDR Pty Ltd v Cottesloe Constructions Pty Ltd [2000] WASCA 62
Re Australia and New Zealand Savings Bank Ltd [1972] VR 690
Re Small & Shattell (Sales) Pty Ltd (1992) 7 ACSR 99
Rothwells Ltd v Nommack (No 100) Pty Ltd (1990) 2 Qd R 85
Roxborough v Rothmans Pall Mall Ltd (2001) 208 CLR 516
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359
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- AGLC
- HL Diagnostics Pty Ltd v Psycadian Ltd [2005] WASC 234
- Case
- [2005] WASC 234
- Decision Date
CaseChat Overview and Summary
The legal issues revolved around the interpretation of statutory provisions and the nature of the debt in question. The court had to examine whether the statutory demand was validly served and if the accompanying affidavit met the requirements. Furthermore, the court needed to consider the effect of stamping the deed of assignment after the statutory demand was issued and determine if the overpayment constituted a debt under the relevant statute. The court also had to assess whether the defendant had a genuine dispute regarding the debt claimed.
The court found that the accompanying affidavit sworn by the assignee was sufficient to validate the statutory demand. It was determined that while stamping of the deed of assignment before serving the statutory demand was preferable, subsequent stamping did not invalidate the demand. The court held that money owed due to an overpayment constituted a debt under s 459E of the Corporations Act, as the essence of the right to recover was akin to a debt. The court also found that there was no genuine dispute as to the debt, as the statutory demand correctly identified the amount owed and the defendant had not provided any evidence to dispute the claim.
The court ordered that the application to set aside the statutory demand be dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The right in Australia to recover payment made for a consideration which has failed or by mistake is now more accurately expressed in the language of restitution, based upon concepts of unjust enrichment: Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 at 673; Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 375; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; Roxborough v Rothmans Pall Mall Ltd (2001) 208 CLR 516. While it is the case that a claim for restitution is different from a claim for debt under contract, the emphasis in the former being on the position of the beneficiary rather than the loss sustained by the claimant, in my view, having regard to the present context and statutory purpose, the differences are not material. I do not consider that for the purposes of s 459E anything turns on the precise nature of the right available to the claimant to recover a sum of money, so long as the sum of money has the characteristics of a debt and is due and payable to the claimant. In my view, a liability of the plaintiff to pay to the defendant money as the result of an overpayment made by the defendant to the plaintiff would be a debt within the meaning of s 459E(1) of the Corporations Act. Finally, the plaintiff relied upon the schedule to the statutory demand as an acknowledgement by the defendant that the debts in question were only due and payable upon demand being made. It was not suggested by the defendant that such demand had been made when the statutory demand and accompanying affidavit were executed. There was therefore no debt due and payable at the time the statutory demand was executed. I accept the defendant's submission that the reference in the statutory demand to the debts being payable on demand is simply an error in the statutory demand. It is well established that unless the parties agree that a loan shall be repayable only on demand, the loan creates an immediate debt for which an action may be brought for its recovery without any antecedent demand: Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 566. In Ogilvie v Adams [1981] VR 1041 at 1043, Fullagher J said:"The common law has always regarded the fact of indebtedness as a continuing detention by the debtor of the creditor's money, and this whether the creditor brought an action of debt or an action in indebitatis assumpsit. Therefore if A lends money to B, then instantly B is detaining A's money. In order to prevent a cause of action for recovery arising in A instantaneously on paying the money, the parties must expressly contract out of that situation by words clearly inconsistent with that situation. The courts have long since settled it that a mere statement or agreement that the money is repayable on demand (or request or at call) is not sufficient to contract out of that situation where all else that is known of the terms of the contract is that A has paid money to B by way of loan. The lender's cause of action still arises instanter on the receipt of the money by the borrower …"