Just Right Foods Pty Ltd v Inghams Enterprises Pty Ltd
[1998] FCA 208
•10 MARCH 1998
JUST RIGHT FOODS PTY LTD v INGHAMS ENTERPRISES PTY LTD
No. VG 3333 of 1997
FED No. 208/98
Number of pages - 10
Corporations Law
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
MILLANE JR
Corporations Law - corporations - statutory demand - application to set aside statutory demand - whether genuine dispute as to the amount of debt - offsetting claims - whether genuine offsetting claims - supporting affidavit - whether it met minimum requirements of affidavit to show genuine offsetting claims - evidence as to amount of claims - the extent to which this may be required where damages claimed are at large - whether evidence supporting the quantum of the offsetting claim is required - where demands are at large whether the applicant is required to state the extent to which the claim meets or exceeds the demand.
Corporations Law Part 5.4, ss 459E, 459E(2)(e), 459H, 459H(1), 459H(2), 459H(3), 459H(5), 459H(5)(a),(b) & (c)
Godfrey Hirst Australia Pty Ltd v Floyd Industries Pty Ltd (Federal Court of Australia Sundberg J, 24 July 1995 unreported)
Classic Ceramics Importers Pty Ltd v Ceramica Antiga SA 1994 (12 ACLC 334)
Eyota Pty Ltd v Hanave Pty Ltd 1994 (12 ACLC 669)
Graywinter Properties v Gas & Fuel Superannuation (1996) 14 ACLC 1703
Spencer Constructions Pty Ltd v G & M Aldridge (1997) 15 ACLC 1001)
Sewmail (Australia) Pty Ltd v Booby Traps Pty Ltd 23 ACSR 339
MELBOURNE, 24 February 1998 (hearing), 10 March 1998 (decision)
#DATE 10:3:1998
Appearances
Counsel for the Applicant: MR P CLARK
Solicitor for the Applicant: BYRNE & CLARK
Counsel for the Respondent: MR S GARDINER
Solicitor for the Respondent: BLAKE DAWSON & WALDRON
THE COURT ORDERS THAT:
The applicant's setting aside application is dismissed.
2. Liberty is reserved to each party to apply on the question of costs by filing written submissions within 7 days.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
MILLANE JR
On 20 October 1997 the respondent served on the applicant a statutory demand under paragraph 459E(2)(e) of the Corporations Law. The demand required the applicant within 21 days to pay the amount of $96,539.27 or secure or compound the amount of the alleged debt to the respondent's reasonable satisfaction.
On 10 November 1997 an application to set aside the demand was filed on behalf of the applicant together with an affidavit sworn by Savas Ahilias ("Ahilias"). That affidavit purports to support the application to set aside and, bearing in mind the 21 day time limit for making the application, it represents the only statement of material facts on which the applicant intended to rely to establish under subsection 459H(1) of the Corporations Law either or both;
(a) the existence of a genuine dispute;(b) the existence of an offsetting claim.
The supporting affidavit was supplemented by a further affidavit sworn by Ahilias on 12
December 1997 (the supplementary affidavit) and these affidavits provide the factual and evidentiary mix relied on by the applicant to assert both the existence of a genuine dispute as to the amount of the debt to which the demand relates and the existence of offsetting claims.
The respondent contested the application and filed in total seven affidavits made by the following deponents:
(a) Thomas Dean (Dean), the respondent's sales manager, sworn on 25 November 1997;(b) John Graham Foster (Foster), the respondent's finance manager, sworn on 25 November 1997;
(c) Stephen Slater (Slater), the respondent's plant manager, sworn on 15 January 1998;
(d) Ashley Wharton (Wharton), the respondent's solicitor, sworn on 22 January 1998 and 5 February 1998;
(e) Shane Dinan (Dinan), formerly employed by Australian Safeway Stores Limited as its delicatessen-category manager sworn on 17 February 1998; and
(f) Tony De Thomasis (De Thomasis), employed by Australian Safeway Stores Limited as a merchandising manager/delicatessen and seafood, sworn on 18 February 1998.
Ahilias is the founder, a director of and a shareholder in both the applicant company and another company, Cheap Chicks Poultry Pty Ltd (CCP). CCP conducts a poultry processing business and, from approximately 1996, the applicant has manufactured and supplied chicken small goods.
Much of Ahilias's supporting affidavit is devoted to CCP's relationship with the respondent from 1992 onwards and the facts and evidence relevant to a dispute between CCP and the respondent, which dispute culminated in it and the applicant filing a proceeding in the Federal Court of Australia on 25 November 1997 (the Federal Court proceeding) naming the respondent, Slater and the respondents general manager, Chris Turner, as respondents.
In summary, in so far as CCP is concerned, the Federal Court proceeding alleges against the respondent, Inghams Enterprises Pty Ltd both the unlawful repudiation of contracts allegedly entered into in 1991 and 1996 for CCP to perform boning and processing work and, as against all the respondents, the contravention of the provisions of the Trade Practices Act 1974.
The proceeding to set aside the demand relies both on the respondent's alleged repudiation of its contracts with CCP as conduct constituting unlawful interference with the applicant's contractual relationship with CCP and the alleged publication by Dean of defamatory statements to a Safeway representative, De Thomasis, in or about mid 1997 of and concerning Just Right Foods Pty Ltd.
The only apparent contractual relationship between the applicant and the respondent is that to which the demand and the debt relate, referred to by Foster in his affidavit sworn on 25 November 1997. Foster correctly notes in his affidavit that Ahilias's supporting affidavit contains no allegation that the debt referred to in the demand is not owing. It is also apparent from the supporting affidavit and, indeed, from Ahilias's supplementary affidavit that the amount of the debt is not challenged. At best, the applicant seeks to establish that it has one or more genuine claims offsetting the debt; although evidence of any damage suffered and the quantum of the offset claimed is not clearly spelt out in either affidavit sworn by Ahilias.
In seeking to set aside the demand it was conceded by the applicant that it did not dispute the existence or the amount of the debt to which the demand relates. Nevertheless, it argued that any offsetting claim was relevant to the Court's calculation of the admitted amount and the substantiated amount in accordance with s 459H. According to the applicant it was not in a position to concede that the undisputed trading debt was an admitted amount because under paragraph 459H(5)(a) the offsetting claims were relevant to the calculation of the admitted amount and, the authority for this proposition is found in the unreported decision of Justice Sundberg in Godfrey Hirst Australia Pty Ltd v Floyd Industries Pty Ltd (Federal Court of Australia Sundberg J, 24 July 1995 unreported), the facts of which case were, the applicant says, the same as those found in the application before me.
In my view the submission that because of the offsetting claims, there still exists a genuine dispute about the amount of the debt, notwithstanding the concessions made concerning this debt, arises out of a misunderstanding of the structure and practical application of Division 3, Part 5.4 of the Corporations Law, as well as a rather selective interpretation of the findings in the Godfrey Hirst decision.
Subsection 459H(1) requires that the court be satisfied of either or both:
"(a) that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates;(b) that the company has an offsetting claim."
Subsection 459H(2) provides for the additional requirement that the Court calculate the amount of the substantiated debt by subtracting the offsetting total from the admitted total. The admitted total is defined as meaning the admitted amount of the debt or the admitted amounts of the debts and the offsetting total refers to the amount of any offsetting claims or a nil amount where there is no offsetting claim. Putting to one side subsections 459H(3) and (4) for the time being, subsection 459H(5) contains the following relevant definitions:
""admitted amount", in relation to a debt, means:(a) if the Court is satisfied that there is a genuine dispute between the company and the respondent about the existence of the debt - a nil amount; or
(b) if the Court is satisfied that there is a genuine dispute between the company and the respondent about the amount of the debt - so much of that amount as the Court is satisfied is not the subject of such a dispute; or
(c) otherwise - the amount of the debt;
"offsetting claim" means a genuine claim that the company has against the respondent by way of counterclaim, set-off or cross-demand (even if it does not arise out of the same transaction or circumstances as a debt to which the demand relates);"
It is clear from the expressions used in Division 3 that the debt referred to in subsection 459H(5) is the debt to which the statutory demand relates and not any offsetting claim. So that when paragraphs 459H(5)(a) and (b) refer to a genuine dispute about the existence or the amount of the debt they are referring to a dispute concerning the debt to which the statutory demand relates and not any offsetting claim. In the absence of a genuine dispute concerning the existence of the amount of the debt the admitted amount for the purpose of calculating the admitted total is, as a consequence of paragraph 459H(5)(c), the amount of the debt and, in this case, that is $96,539.27. Once the admitted total is determined the offsetting total can be determined by ascertaining any genuine offsetting claim or claims and subtracting the amount of this claim or claims from the admitted total. This gives rise to the substantiated amount.
I have read the decision of His Honour Justice Sundberg in the Godfrey Hirst case and, in particular, I have considered the import of the finding at page 2 thereof relied on by the applicant, namely:
"Having found that there is a genuine dispute about the amount of the debt to which the demand relates, I turn to s.459H(2) which requires the Court to calculate the "substantiated amount" of the demand in accordance with the formula "Admitted total" minus "Offsetting total". There is no offsetting claim raised here, and so the only question concerns "Admitted total", which is defined as the admitted amount of the debt or the total of the admitted amounts of the debts. In a case where the Court is satisfied that there is a genuine dispute about the amount of the debt, the "admitted amount" is "so much of that amount as the Court is satisfied is not the subject of such a dispute". In my view that definition contemplates a case where the Court is able to say that a specific amount of the debt is not disputed. That is not the case here. Splitting the amount claimed ($119,229.03) into two parts - one disputed and the other not - would be an exercise of guesswork on my part".
The facts of the abovementioned case are different to those before me. It is apparent from the decision that His Honour did not detail all of the facts that led to him to decide as he did. It is also apparent from further observations made by His Honour that, in his view, once the applicant, in that case, filed its affidavits the respondent should have pursued its recovery action in the County Court of Victoria. The demand was set aside and an order made for the respondent to pay the applicant's costs. In these circumstances, the best that can be said from the applicant's point of view in the application before me is that, having satisfied himself that there was a genuine dispute about the amount of the debt, His Honour was not prepared, nor was he able to, split the amount claimed in the demand into disputed and undisputed amounts by applying guesswork. The order made indicates that His Honour treated the whole amount of the debt as being the subject of genuine dispute.
So far as the statutory scheme is concerned the court is required, if it finds there is an offsetting claim or claims to determine the offsetting total and subtract that from the admitted total. It is possible that an offsetting claim may exist yet not provide any quantifiable offsetting total because the claim is based on an existing cause of action but, notwithstanding this, there is no evidence of any actual damage suffered. This possibility arises, for example, in libel actions where, unlike in actions for damages for the unlawful interference with a contract, actual damage need not be proved in order to bring the action and establish that one has been defamed. Damage in these cases is presumed. Of course, at common law slander; that is to say the spoken defamation, does require proof of special damage unless it falls within one of the exceptions, which include slanders of and concerning a person in the way of his trade or profession. Thus, one of the applicant's alleged offsetting claims, which relies on the publication of defamatory statements of and concerning the applicant in the way of its trade, is actionable per se if it meets the other requirements of this cause of action
THE OFFSETTING CLAIMS
(i) The Tort of Interference with Contractual Relations
To determine whether there is a serious question to be tried (Classic Ceramics Importers Pty Ltd v Ceramica Antiga SA 1994 (12 ACLC 334)) or a plausible contention to be investigated (Eyota Pty Ltd v Hanave Pty Ltd 1994 (12 ACLC 669)) I considered first the facts alleged in the supporting affidavit and whether those facts provided a basis for concluding that a genuine claim exists for damages as a consequence of the respondent's tortious interference with the applicant's contractual relationship with another entity.
Paragraphs 17 to 19 of the supporting affidavit deal with the incorporation of the applicant in 1995 and the establishment of its sausage manufacturing business. It is asserted that CCP through its boning work for the respondent had available a supply of chicken by-product suited to the manufacture of products, including sausages. There is no direct reference in the supporting affidavit to any contract or contract of supply existing between the applicant and CCP at the date of the alleged unlawful repudiation of the respondent's contracts with CCP in 1996.
Paragraphs 42 to 49 contain allegations but not necessarily facts or evidence which might be said to be directed to establishing both the offsetting claims relied on by the applicant. Paragraph 42 apparently refers to the use by the applicant of a letter from the respondent to CCP praising CCP's work for the respondent. I say apparently because without reference to the answering affidavit it is impossible to attribute any sensible meaning to the paragraph. What appears to have happened is that the applicant attempted to use the letter as an endorsement for the applicant when it approached the Safeway Stores with samples of its products for sale and, this attempt prompted a verbal complaint from Slater about the appropriateness of the applicant using the respondent's letter in these circumstances. There is a further allegation, which is denied by Slater, that he instructed Ahilias not to take any of the respondent's products to Safeway. Neither of these allegations provide grounds for concluding that there is a genuine offsetting claim.
Paragraphs 43 to 46 inclusive refer to discussions and correspondence leading to the termination of the alleged contracts between the applicants and CCP. There is also reference to discussions between CCP and the respondent about the continued supply of products by the respondent to CCP at industry or wholesale prices without discounts or other special consideration.
Paragraphs 47 and 48 are directed to the alleged defamation and paragraph 49, without stating any basis for so asserting, expresses Ahilias's view that Turner and Slater personally, or on behalf of the respondent, have embarked on a deliberate course of sabotage of the business of the applicant and CCP. Of course, whatever Turner and Slater have done personally and whatever actions have been aimed at CCP this conduct is not evidence of a genuine offsetting claim against the respondent.
Paragraph 50 of the supporting affidavit expresses the belief that the applicant has in "...a good claim for unliquidated damages..." against the respondent. Had I not had the benefit of a copy of the statement of claim filed in the Federal Court proceeding, exhibited to the supporting affidavit (Exhibit "SA.5"), and the submissions made by the applicant's counsel, I would have had little or no prospect of identifying the alleged offsetting claim. On its face the supporting affidavit appears to rely solely on a defamation claim.
Even with the benefit of the supplementary affidavit, and, in particular, the pleadings in the Federal Court proceeding, which purport to plead the cause of action now relied on to offset the debt, I have some difficulty in accepting that there exists a genuine claim arising from the unlawful interference by the respondent in any contractual relationship between CCP and the applicant. This is because, whereas the supporting affidavit falls short of describing any contract or contract of supply existing between the applicant and CCP at the date of the alleged repudiation by the respondent of its contracts with CCP, the statement of claim introduces real doubt as to whether any contract existed between CCP and the applicant as at the date of the alleged repudiation. Paragraph 23 of the statement of claim alleges:
"At all material times the first named respondent knew or ought to have known that the first named and second named applicants were or intended to enter into a contractual relationship whereby the first named applicant would supply raw material for the purpose of the second named applicant at cost or at least at advantageous rates".
The cause of action relied on protects contractual rights not expectancies. The vague and non- specific assertions made in the supporting affidavit and, repeated in the pleadings, strike at the genuineness of this claim. In the Federal Court proceeding the applicant relies on an indirect interference with its alleged contractual rights. To establish the elements of this cause of action the applicant must show:
That the respondent knew of the existence of the contract between CCP and the applicant and intended to procure it;
2. That it did repudiate its contract or contracts with CCP with such intent;
3. That there was the wrongful repudiation of its contract or contracts with CCP;
4. That the breach of the contract or contracts between CCP and the applicant was a necessary consequence of the wrongful repudiation of the contract of contracts with CCP.
Whilst the applicant is not required to provide evidence of every element of the claim made in order to establish the existence of a genuine claim, evidence of damage suffered and claimed is necessary both to determine the genuineness of the claim and to establish the cause of action. Apart from the assertion contained in the supporting affidavit that it had "...a good claim for unliquidated damages..." the applicant goes no further until paragraph 4 of its supplementary affidavit makes the bald assertion that, by reason of its failure to obtain sales with the Safeway stores, it is losing profits at the rate of $26,000.00 per month through the direct loss of sales. However, this allegation appears to relate to the alleged defamation, which the applicant blames for its failure to, as it puts it, "...penetrate the chain of Safeway/Woolworths supermarkets...". This allegation offers no factual basis for assuming damage was suffered or that there is evidence of damage consequent upon the allegedly wrongful repudiation of any contract or contracts between CCP and the applicant and the procurement by the respondent of a breach of any contracts between CCP and the applicant.
After carefully considering the authorities it was concluded by His Honour Justice Sundberg in his decision in Graywinter Properties v Gas & Fuel Superannuation (1996) 14 ACLC 1703 at 1708 that:
"In a section 459H(1)(a) case the affidavit must in my view disclose facts showing there is a genuine dispute between the parties. A mere assertion that there is a genuine dispute is not enough. Nor is a bare claim that the debt is disputed sufficient. It follows from the fact that the affidavit need not go into evidence, which is the customary function of an affidavit, that it may read like a pleading"
On reading the supporting affidavit I am not satisfied that it discloses facts showing a genuine claim for any alleged unlawful interference with any contract between the applicant and CCP or, for that matter, as is apparent from my comments below, any alleged defamation.
If I am incorrect in concluding as I have that the supporting affidavit does not disclose facts showing a genuine claim for unlawful interference, by reason of the matters already set out above, I am not satisfied that the facts and the evidence adduced by the applicant show this to be a genuine claim in the sense that it is bona fide and truly exists in fact and, that the grounds for alleging the existence of the claim are real (see the decision of the Full Court in Spencer Constructions Pty Ltd v G & M Aldridge (1997)15 ACLC 1001 at page 1011 et seq).
(ii) The Alleged Defamation
In paragraph 47 of the supporting affidavit Ahilias makes the following allegations
"On or about MID 1997 it was reported to me than an Inghams' sales rep had defamed CCP. Mr Adrian Cester was with Mr Tony De Tomas , purchasing manager for Safeway Supermarkets, deli section with Mr Tom Dean, Victorian sales manager for Inghams. The three were discussing Just Right's products and how good they are. Mr Dean told Mr De Tomas that Just Right owed Inghams a lot of money and that Inghams was going to take Just Right down (sic)".
Apart from noting the assertion that CCP was the subject of the alleged defamatory comment
it is impossible to envisage how the statements alleged amount to actionable defamation and contain any actionable imputations disparaging of the applicant when it is conceded that the debt is and was owing to the respondent by the applicant at the relevant time.
If it is accepted that it is sufficient for the purposes of Part 5.4 of the Corporations Law and the supporting material to simply assert that one has been defamed (and in the present case I am unable to accept that this is so) and, subsequently, in any supplementary affidavit, and pleadings set out the statements that may be capable of founding an actionable slander then there is a basis for saying that there is a cause of action alleged. The allegation contained in paragraph 26 of the pleading is that, in addition to the words alleged in the supporting affidavit, Dean also said of and concerning the applicant to "...Tony De Thomas...and ... Adrian Cester: "Stay away from Just Right Foods, they are going down" and "Forget Just Right Foods"(sic)...".
In the pleading filed in the Federal Court proceeding the applicant seeks damages for injury to "...its character credit and reputation in its trade profession or calling..." including "exemplary and/or punitive damages".
The alleged defamatory statements contained in the supporting affidavit are denied by the respondent and, in particular, by Dean the alleged maker of these statements; although he concedes that at a meeting in late June 1997 at Safeway in Mulgrave he told De Thomasis that the respondent had a customer in Cranbourne who owed a significant debt to the respondent. The Safeway representative, De Thomasis, has sworn an affidavit indicating two significant matters. The first is that he does not recall Dean making the statements alleged or any comments about the applicant's financial position in mid 1997 at any meeting between himself, Dean and Cester. The second is that Dinan was responsible for the inspection of any samples from potential suppliers and De Thomasis was not privy to what Dinan said to Ahilias after his inspections; although he did know that Safeway did not buy the applicant's product.
De Thomasis' failure to recall the alleged statements being made does not preclude the possibility that the statements were not published in the forum and in the manner alleged. However, given the reliance placed on Cester's recollection of the statements and the burden the applicant carries in establishing an offsetting claim I found it surprising that it did not produce an affidavit from the witness making the allegation, evidencing his recollection of the alleged conversation.
It is apparent from De Thomasis' affidavit and an affidavit made by Dinan, both filed by the respondent, that Dinan was the person who made the decision to accept or reject the applicant's products and he says he rejected the applicant's products in ignorance of any of the alleged defamatory statements, relying instead on the commercial reasons set out by him in his affidavit.
What the affidavit material does indicate is that there is dispute about what was said, whether what was said was capable of a defamatory meaning and, if defamatory, whether it was disparaging of the applicant or its business.
In seeking to establish an offsetting claim, which meets all or part of the demand the applicant must provide initially some factual, and at the hearing of its application, some evidentiary basis for the court to determine whether or not the demand should be altered or set aside. So that whilst the applicant correctly says that it is entitled to pursue any actionable defamation, call all its evidence and cross examine the respondent's witnesses, including the apparently independent witnesses who were employed by Safeway at the relevant time, it must nevertheless satisfy the Court that such action as it has is capable of producing an order for damages for part of, up to or exceeding the debt.
The supporting affidavit beyond asserting that the applicant has "...a good claim for unliquidated damages..." makes no attempt to quantify any offsetting claim, provide any evidence of any damage allegedly suffered or assert that the damages claimed amount to part of, or all of, or exceed the demand. In making this observation I am mindful of the fact that if the words spoken are capable of a defamatory meaning and the other requirements are met in establishing the cause of action then the slander is actionable per se and damage to the applicant's business reputation is presumed. Damages are at large and may include; for instance, damages for loss of the applicant's reputation and loss of the commercial opportunities the applicant appears to believe it had with Safeway.
The supplementary affidavit, without offering any evidentiary basis for this, does attempt to quantify the applicant's claim asserting that because it has not been able to sell products to Safeway/Woolworths Supermarkets it is losing profits in the order $26,000.00 per month. In quantifying its claim in this way it concentrates entirely on alleged pecuniary losses.
The respondent relies on the decision of Justice Burley in Sewmail (Australia) Pty Ltd v Booby Traps Pty Ltd 23 ACSR 339 in which His Honour found that he could not determine to set aside or alter the demand because of the failure to produce evidence that the offsetting claim amounted to the $50,000.00 sum alleged by the plaintiff. At page 343 of his decision His Honour makes the following relevant observations:
"... There needs to be evidence supporting the quantum of the offsetting claim so that the court may determine whether or not there is a genuine offsetting claim of a given amount. It is not necessary that the evidence be such as might be advanced at a trial but it is, in my view, necessary to adduce some evidence in that regard: Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1993) 47 FCR 451 at 460 and 463; 120 ALR 173; 12 ACSR 341; Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund (1996) 21 ACSR 581; 14 ACLC 1703 at 1706. In the absence of such evidence it is impossible for the court to determine whether or not the statutory demand must be altered or set aside in accordance with the provisions of s459H of the law. For these reasons the ground relied upon by the plaintiff in relation to the offsetting claim must fail".
Because damages in an action for defamation are at large, and damage to the applicant's business reputation is presumed, this is not a case where actual evidence of damage other than any pecuniary loss claimed is necessarily available and capable of being adduced. Nevertheless, at the very least I would expect the supporting affidavit, had it initially asserted facts capable of showing that there was a genuine defamation action, would also contain an assertion that the damages sought amounted to part of, all of, or exceeded the demand, as well as providing the factual basis for alleging pecuniary loss which would be relied upon to assess the quantum of the offsetting claim and the bona fides of that claim.
I have already indicated that I am not satisfied that the supporting affidavit discloses facts showing a genuine defamation action. Again, if I am incorrect in reaching this conclusion, I have formed the view, that, whether or not the words alleged to have been said were published in the circumstances described by the applicant, the alleged offsetting claim is not a bona fide one in all the circumstances.
The affidavit material indicates to me that after the alleged defamation occurred in mid 1997 Ahilias complained to the respondent and, and on the same day, Foster allegedly apologised. This apology appears to have been accepted by the applicant because its supporting affidavit makes no reference to any request for the respondents to take any remedial action vis-a-vis Safeway and further it makes no reference to any action taken by the applicant to protect its commercial standing with Safeway.
It is apparent that the initial exchange of correspondence between solicitors was not at all concerned with any defamation of the applicant (see Wharton's affidavit sworn on 22 January 1998 and in particular Exhibit "AW1"). This issue only arose in a conversation between the solicitors on 1 October 1997 and was formally expressed for the first time in the supporting affidavit, which relies on statements that are incapable of supporting the cause of action alleged.
In hearing and determining the setting aside application I am mindful of the many authorities which clearly state that the Court should not attempt to decide or predict the outcome of any offsetting claim. This is the task of the court hearing any claim litigated. However, the circumstances surrounding the making of the claim are relevant to determining the bona fides of the offsetting claim. In this case, in the circumstances described above, I am not satisfied that this is a bona fide or real offsetting claim.
For the reasons set out above I propose to order that the applicant's setting aside application be dismissed.
ORDERS:
The applicant's setting aside application is dismissed.
2. Liberty is reserved to each party to apply on the question of costs by filing written submissions within 7 days.
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