Jamal Charara v Integrex Pty Limited

[2011] NSWCA 113

Court of Appeal

New South Wales

Case Title:	Jamal Charara v Integrex Pty Limited
Medium Neutral Citation:	[2011] NSWCA 113
Hearing Date(s):	3 May 2011
Decision Date:	03 May 2011
Jurisdiction:
Before:	Hodgson JA at [1], [11]; Sackville AJA at [10]
Decision:	Application for leave to appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	CORPORATIONS - Application for leave to appeal from decision to set aside statutory demand - Whether primary judge had sufficiently enquired into whether there was a genuine dispute as to the existence of the debt - Leave to appeal refused.
Legislation Cited:	Corporations Act s 459H
Cases Cited:	Mibor Investments Pty Limited v Commonwealth Bank [1994] 2 VR 290
Texts Cited:
Category:	Interlocutory applications
Parties:	Jamal CHARARA (applicant) INTEGREX PTY LIMITED ACN 096 255 257 (respondent)
Representation
- Counsel:	Jamal CHARARA (in person) (applicant) D P O'CONNOR (respondent)
- Solicitors:	Self-represented (applicant) Mercantile Legal (respondent)
File number(s):	2010/152993
Decision Under Appeal
- Court / Tribunal:	Supreme Court
- Before:	Palmer J
- Date of Decision:	28 September 2010
- Citation:	Integrex Pty Ltd v Charara [2010] NSWSC 1131
- Court File Number(s)	2010/152993
Publication Restriction:

Judgment

1. HODGSON JA: The Court is dealing with an application for leave to appeal from a decision of Justice Palmer given 28 September 2010. By that decision Justice Palmer set aside a statutory demand pursuant to s 459H of the Corporations Act .

1. Leave to appeal from that decision is sought essentially on the ground that Justice Palmer did not do what was required by s 459H, namely inquire into the matter sufficiently to be satisfied that there was a genuine dispute, between the company and the applicant in these proceedings, about the existence of the debt relied on in the statutory demand.

1. In his decision, the Judge stated that whether a certain notice of assignment was given and received was a disputed issue of fact. Plainly the primary Judge decided that there was a genuine dispute as to the question whether the notice of the assignment, on which the applicant relied for his debt, was given and received prior to March 2010.

1. It followed from that decision that there was a genuine dispute about the existence of the debt, because if the notice of assignment was not received by the company prior to March 2010, the assigned debt was subject to a set-off for a larger amount, in which case no debt would have been owing.

1. The applicant, who is self-represented before this Court, has submitted that the primary Judge did not do what was required by s 459H, namely to look into the matter to the extent of being satisfied that there was a genuine dispute. In my view it is clear from the judgment, and also from the transcript, that the primary Judge did adequately consider the matter.

1. There was before the primary Judge evidence from the director of the company, in pars 25 and 26 of his affidavit of 17 June 2010, that 22 March 2010 was the first time the company had any notice of the purported letter of assignment or the purported deed of assignment.

1. That did amount to evidence that no such document had been received by the company prior to that date. There was evidence before the primary Judge that a notice of assignment had been posted to the company at a much earlier date; but the question whether that evidence would be accepted, whether the contrary evidence of the director would be accepted, or whether some other explanation for the difference between their evidence would be arrived at, would have to be matter for a full hearing.

1. In Mibor Investments Pty Limited v Commonwealth Bank [1994] 2 VR 290, a decision of Justice Hayne in the Supreme Court of Victoria, his Honour said that in cases such as these, in most cases it is not expected that the Court would embark on any extensive inquiry in order to determine whether there was a genuine dispute between the parties, and certainly would not attempt to weigh the merit of the dispute.

1. In my opinion, having regard to the evidence that was before him, the primary Judge did adequately enter into the question whether there was a genuine dispute. In my view, the challenge to the primary Judge's decision does not have such a chance of success as to justify the grant of leave to appeal, and I would propose that leave to appeal be refused with costs.

1. SACKVILLE AJA: I agree with the orders proposed by the presiding Judge and with his reasons.

1. HODGSON JA: The order of the Court is: application for leave to appeal dismissed with costs.

oOo