Michael Davies Associates v Woolacott - [2002] NSWSC 472

CITATION: Michael Davies Associates v Woolacott [2002] NSWSC 472

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2030/02

HEARING DATE(S): 20/05/2002

JUDGMENT DATE: 22 May 2002

PARTIES :

Michael Davies Associates Pty Limited v Woolacott Hale Corlett & Jumikis Consulting Engineers Pty Limited

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr A. Lo Surdo for plaintiff
Mr H. Stowe for defendant

SOLICITORS: Colin Biggers & Paisley for plaintiff
Gillis Delaney Brown for defendant

CATCHWORDS: Corporations Law. Application to set aside statutory demand undr s 459G of the Corporations Act. Whether dispute raised in an affidavit filed out of time is available. Held that it is not. Demand varied.

DECISION: Paragraph 29

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

WEDNESDAY 22 MAY 2002

2030/02 - MICHAEL DAVIES ASSOCIATES PTY LIMITED v WOOLACOTT HALE CORLETT & JUMIKIS CONSULTING ENGINEERS PTY LIMITED

JUDGMENT

1 MASTER: This is an application under s 459G of the Corporations Act. The application is to set aside a statutory demand dated 2 March 2002 served by the defendant on the plaintiff which claims the sum of $27,746.

2 There are eighteen invoices set out in the schedule claiming various amounts. Quite a number of these have been paid subsequently, or the dispute has been abandoned. The defendant has abandoned its claim for GST in respect of its invoices and in the result only three invoices are now in dispute.

3 The invoices in dispute are as follows:

Invoice 11166 for $2242 excluding GST
Invoice 11134 for $1587.50 excluding GST
Invoice 11315 for $1542.50 excluding GST

4 The total of the amount in dispute in this matter is now only $5372.00. The plaintiff is an architect involved in various projects for the Department of Transport, the principal contractor for which was Fletcher Constructions Australia Limited. There was a design team led by the plaintiff as project manager which included the defendant consulting engineers.

5 No agreement covering the defendant's employment as a consultant engineer was tendered, apparently, as there was no such written agreement. It is clear, however, that the contractual relationship was between the plaintiff and the defendant. All invoices for fees were issued by the defendant to the plaintiff. In addition, the plaintiff itself saw the contractual relationship as being between itself and the defendant. For example, in a letter of 18 May 2001 it had the following to say to the defendant:

"We have received your letter dated 17 May 2001. We have no defence to most of the comments you have made. We would remind you however that, whether you like it or not, Woolacotts are employed by Michael Davies Associates and the matter of your fees has absolutely nothing to di with Fletchers. Your raising the matter with them is therefore not constructive.

Our own view is that the sooner this nonsense of architects tendering fees and employing consultants goes out of fashion the better. We have no margin on your fees and from our point of…

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: [2002] NSWSC 472
Decision Date: 22 May 2002

CaseChat Overview and Summary

The case of Michael Davies Associates v Woolacott involved a dispute over a statutory demand made under the Corporations Act. The applicant, Michael Davies Associates, sought to set aside a statutory demand issued by the respondent, Woolacott. The matter was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether a dispute raised in an affidavit filed out of time could be considered by the court in determining the application to set aside the statutory demand.

The court examined the statutory provisions and relevant case law to determine the admissibility of the late-filed affidavit. The court noted that section 459G of the Corporations Act provides for the setting aside of a statutory demand if the defendant demonstrates a genuine dispute with the plaintiff. However, the court held that the dispute must be raised in a timely manner, as per the court's procedural rules. The court found that the late-filed affidavit did not comply with the required timelines and, therefore, the dispute raised in the affidavit could not be considered.

Consequently, the court varied the demand, allowing the statutory demand to stand. The court emphasised the importance of adhering to procedural rules and timelines in legal proceedings. The final orders of the court included the variation of the statutory demand and the disallowance of the late-filed affidavit as a basis for setting aside the demand.

Orders