MY CASINO LTD -v- PAPAL [2001] WASC 71

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 71
Published:	21/03/2001
Case No:	COR:69/2001	Heard:	14 MARCH 2001
Coram:	MASTER SANDERSON	Delivered:	14/03/01
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed
PDF Version

Parties:	MY CASINO LTD (ACN 009 423 189) NICHOLAS PAPAL
Catchwords:	Corporations Law Application to set aside statutory demand Turns on own facts
Legislation:	Corporations Law, s 459H(1)(a), s 459H(1)(b)
Case References:	Royal Premier Pty Ltd v Taleski [2001] WASCA 48 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MY CASINO LTD -v- PAPAL [2001] WASC 71 CORAM : MASTER SANDERSON HEARD : 14 MARCH 2001 DELIVERED : 14 MARCH 2001 FILE NO/S : COR 69 of 2001 BETWEEN : MY CASINO LTD (ACN 009 423 189)

Plaintiff

AND

NICHOLAS PAPAL

Defendant

Catchwords:

Corporations Law - Application to set aside statutory demand - Turns on own facts

Legislation:

Corporations Law, s 459H(1)(a), s 459H(1)(b)

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr G K Paull

Defendant : Mr D H Schapper

Solicitors:

Plaintiff : Butcher Paull & Calder

Defendant : Derek Schapper

Case(s) referred to in judgment(s):

Royal Premier Pty Ltd v Taleski [2001] WASCA 48

Case(s) also cited:

Nil

(Page 3)

1 MASTER SANDERSON: This is the plaintiff's application to set aside a statutory demand. The application relies upon s 459H(1)(a) of the Corporations Law. The plaintiff says there is a genuine dispute with respect to the debt the subject of the demand. After hearing argument I indicated to the parties that I would dismiss the plaintiff's originating process and publish reasons at a later date. These are those reasons.

2 The statutory demand is to be found as annexure "JNA1" to the affidavit of Jonathan Neil Asquith, sworn 6 March 2001 and filed in support to this application. The amount in the statutory demand was $15,000. The defendant says in the affidavit accompanying the statutory demand that he was employed by the plaintiff in the capacity of General Manager - Marketing. He says he was employed until 7 November 2000 when he was given one month's notice and his contract was terminated. The defendant says that his entitlement under the terms of the contract was to be paid a salary of $7500 per month. He says that pursuant to the terms of the contract he was entitled to be paid for the months of January and February 2001 and has not been so paid. He says, therefore, that the plaintiff is indebted to him in the sum of $15,000.

3 Appearing as an annexure to the affidavit accompanying the statutory demand is a copy of the employment agreement between the plaintiff and the defendant. Clause 7 of that agreement is headed "Termination Right" and is in the following terms:

"Each party shall have the right to terminate this agreement and your employment hereunder on 30 days notice without any further obligations to…

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: [2001] WASC 71
Decision Date

CaseChat Overview and Summary

My Casino Ltd brought an application in the Supreme Court of Western Australia seeking to set aside a statutory demand issued by Nicholas Papal, the defendant. The demand was for the sum of $15,000. Papal claimed that he was entitled to the amount due to his termination as General Manager - Marketing by My Casino Ltd, without being paid for the months of January and February 2001. The statutory demand was accompanied by an employment agreement and a termination letter from My Casino Ltd. The legal issue before the court was whether there was a genuine dispute as to the debt claimed in the statutory demand, justifying its setting aside under s 459H(1)(a) of the Corporations Law.

The court examined the terms of the employment agreement and the termination letter. It found that the termination was due to the low level of business in the casino, not on the grounds specified in the employment agreement. The plaintiff argued that Papal failed to properly carry out his duties, but this was not the basis on which his employment was terminated. The court also noted that the plaintiff's affidavit lacked detail regarding Papal's duties and how they were breached. The evidence provided did not establish a genuine dispute sufficient to set aside the statutory demand.

The court dismissed the application, holding that there was no genuine dispute regarding the debt claimed in the statutory demand. The plaintiff was ordered to pay the defendant's costs of the application.

Orders