Nuline Riviera Roofing Ltd v Boccamazzo
[2003] WASC 16
•4 FEBRUARY 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NULINE RIVIERA ROOFING LTD -v- BOCCAMAZZO [2003] WASC 16
CORAM: ACTING MASTER DIXON
HEARD: 20 JANUARY 2003
DELIVERED : 4 FEBRUARY 2003
FILE NO/S: COR 270 of 2002
BETWEEN: NULINE RIVIERA ROOFING LTD (ACN 096 634 061)
Plaintiff
AND
MICHAEL ANTONIO BOCCAMAZZO
Defendant
Catchwords:
Corporations - Application to set aside statutory demand - Whether a genuine dispute - Affidavits to contain matters of substance and not mere assertion
Legislation:
Nil
Result:
Amount of statutory demand varied
Category: B
Representation:
Counsel:
Plaintiff: Mr J A Collins
Defendant: Mr C P Stokes
Solicitors:
Plaintiff: Lawton Gillon
Defendant: Chris Stokes & Associates
Case(s) referred to in judgment(s):
Capital Bay Investments Pty Ltd & Ors v Richard Szklarz Architects Pty Ltd & Ors, unreported; SCt of WA; Library No 980503; 8 September 1998
Re Elgar Heights Pty Ltd (No 1) (1995) 3 ACLC 683
Case(s) also cited:
Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACSR 362
Moyall Investment Services Pty Ltd v White (1993) 12 ACSR 320
Re Bond Corporation Holdings Ltd (1989) 1 WAR 465
Re K L Tractors Ltd [1954] VLR 505
ACTING MASTER DIXON: This is an application by the plaintiff to set aside the defendant's statutory demand dated 14 August 2002 pursuant to s 459H of the Corporations Act 2001 or to extend time for compliance for 14 days from the determination of the application pursuant to s 459F(2) of the Act.
By a statutory demand dated 14 August 2002 the defendant sought payment of the sum of $18,902.44. In issue in this application is whether there is a genuine dispute between the plaintiff and the defendant as to the existence or the amount of those debts to which the demand relates, or whether the plaintiff has any offsetting claim. I note in this respect that for the purposes of determining whether there is a genuine dispute, "the Court will require some material sufficient to persuade it that there is an arguable case for a genuine dispute or the existence of an offsetting claim. The mere assertion that that is the case will not generally be enough" - per Murray J in Capital Bay Investments Pty Ltd & Ors v Richard Szklarz Architects Pty Ltd & Ors, unreported; SCt of WA; Library No 980503; 8 September 1998. Murray J went on to say as follows:
"What is required in my opinion is that I discern in the affidavit evidence in support of the application, material of some real substance, more than mere assertion, to show that there is a serious question to be tried as to the existence of a genuine dispute about the debt or a genuine claim which may be put against the respondent, even if not of a kind which could in law or equity be set off against the respondent's claim."
By way of brief background, the plaintiff employed the defendant as a fixer. In the course of his employment he would attend at sites nominated by the plaintiff and carry out work that would include the installation of cladding materials. The defendant would then render an invoice to the plaintiff.
The amount sought in the statutory demand comprises a series of invoices rendered by the defendant to the plaintiff. I will deal with these in turn.
Invoice dated 26 June 2002 - $2978
This invoice relates to work carried out by the defendant on behalf of the plaintiff in Darwin for a Mr Jong ("Jong"). The plaintiff says, by the affidavit of Anthony James Arrigo ("Arrigo") sworn 3 September 2002, that Jong is not happy with the work carried out by the defendant and that rectification work is required. No details are provided as to the remedial work required, the cost thereof, nor when it is to be done. I note that there is no dispute that the work referred to in the defendant's invoice in question was carried out, nor that the invoice was provided to the plaintiff.
It appears from the defendant's affidavit in response sworn 22 October 2002 that the plaintiff has been paid in full by Jong, that by 8 August 2002 the defendant had rectified any problems with the original work and that Jong was then satisfied with that work.
At the hearing of the application on 20 January 2002 counsel for the plaintiff handed up a further affidavit sworn by Arrigo on 17 January 2002 that deposes to there being concerns about the quality of workmanship at Jong's property and also at the property of a Mr and Mrs Read in Kununurra. He deposes to having been informed by Jim Graham ("Graham"), a supervisor in the employ of the plaintiff, of continuing problems and the need for further remedial work at those properties. Arrigo concludes that:
"until all rectification work is completed at these two properties, Riviera Roofing remains in dispute with Boccamazzo in relation to the corresponding invoices."
There is annexed to that affidavit a letter from Graham to the plaintiff dated 14 January 2003 which sets out certain matters.
I received Arrigo's affidavit over the objection of counsel for the defendant.
The affidavit itself adds very little to the matter, simply deposing with little or no degree of particularity to concerns as to workmanship, of advice received as to continuing problems and the need for further remedial work and that until that work is done, the plaintiff will remain in dispute with the defendant. Nothing is said as to the work required to be done, when it will be done and the cost thereof. This, in my view, is mere assertion rather than anything of any substance.
I have already referred to the annexed letter from Graham to the plaintiff. That letter is in the following terms:
"This is to confirm that I Jim Graham, Registered builder am employed by Nuline in the capacity of Supervisor. I can confirm that I instructed contractors to perform remedial work for clients Mr and Mrs Eckly 1 Victoria Street Esperance. The existing cladding as put on by M Boccamazzo had to be removed and refitted, due to sub standard workmanship. The company incurred a cost of $600 for the labour, once the work was corrected the clients were happy with the completed job. In this instance there was no direct travelling costs. In addition, I personally attended a job in Derby being on Mark Williamson's home to carry out remedial work to correct faults as a result of the poor workmanship by Mr Boccamazzo. The client stated that he was not happy with either Mr Boccamazzo or his juniors. The cost of this corrective work was absorbed by the company as I was on a salary, otherwise the cost of correction would have been $2500. I am also aware of a number of other clients on which Mr Boccamazzo did work, and that I will be required to carry out additional remedial work next time I am in those towns. Two such clients are Mr and Mrs Read in Kunnunarra (sic) and Mr Jong in Darwin. I can confirm that in my opinion as a builder, and that from my own knowledge, that there is a major concern to the company on the sub standard work carried out by Mr Boccamazzo in remote areas where the company had entrusted Mr Boccamazzo, this trust has been flagrantly abused and the company will incur considerable cost directly and indirectly to correct this. This is in addition to the damage it has caused to the reputation of the company."
As regards Graham's letter, I note the following:
1.It is hearsay.
2.Even assuming that the proceedings are such as to allow hearsay evidence upon affidavit, as I have already noted, the only matter that Arrigo seeks to draw from it and rely upon is the reference to the remedial work required in respect of the Jong and Read properties.
3.As regards the reference in the letter to the work carried out by the defendant for Jong in Darwin, all that is said is that additional remedial work will have to be carried out for Jong and Mr and Mrs Read "next time I am in those towns". It is not clear whether there is any dissatisfaction on the part of Jong with the work, what remedial work is required, the likely cost of that remedial work and when it is likely to be performed. Whilst it was suggested by counsel for the plaintiff that the plaintiff has not had an opportunity to consider the nature of the work by virtue of the property being located in Darwin, I do not accept that to be the case. The plaintiff has had ample time to consider the work that it says is required to be carried out and depose to that work in some detail and as to the likely cost. It is not acceptable, in my view, for the plaintiff to dispute the invoice on the basis that it may, at some undefined time in the future, carry out certain remedial work, the nature of which is either not known or unclear, at a cost that is either not known or unclear, and that until such time as that work is done, the defendant is not entitled to any payment. Again, I do not consider that the plaintiff has put anything of any substance before the Court.
4.To the extent that it may be said that there is anything in the letter that may give rise to an offsetting claim, I note that there is reference to the costs incurred by the company in respect of remedial work carried out in Esperance. It appears that that work was not carried out by Graham but by contractors on his behalf. Very little is provided in the way of particulars of the defective workmanship, when that work was performed, and when the remedial work was performed. Nor are any documents provided which deal with these matters. There is also reference to remedial work carried out in Derby in respect of which there does not appear to be any cost to the plaintiff. As such, I do not believe that takes the matter any further. There is also a very general remark to the effect that the plaintiff is concerned about sub‑standard work carried out by the defendant which will result in the plaintiff incurring considerable cost and will damage the reputation of the company. That suggestion is so devoid of detail that no reliance may be placed upon it.
In light of these matters I place no weight on the contents of the letter. I am left, therefore, with the matters deposed to by Arrigo which in my view do not depose to any matters of substance as regards there being a genuine dispute. In these circumstances, I am not satisfied that there is any genuine dispute as regards the defendant's invoice dated 26 June 2002.
Invoice dated 24 June 2002 - $10,346
This invoice relates to work carried out by the defendant on behalf of the plaintiff at Kununurra for Mr and Mrs Read. Again, Arrigo says in his first affidavit that the work was not done in a proper workmanlike manner and Mr and Mrs Read are not happy with the work. Annexed to his affidavit is a copy of a facsimile transmission from Mr and Mrs Read to the plaintiff that sets out their concerns. Arrigo says that "until such time as matters are resolved with Mr and Mrs Read, Nuline Riviera will not make payment to Boccamazzo". No details are provided as to the remedial work required, its cost and when it is likely to be carried out.
Again, there is no suggestion of any dispute as to the work set out in the defendant's invoice, nor that the invoice was not received by the plaintiff.
As with Jong's invoice, the defendant deposes that the plaintiff has been paid in full by Mr and Mrs Read and that he has rectified any problems with the job. Reference is made in par 37 of his affidavit sworn 22 October 2002 to a letter from Mr and Mrs Read to the effect that no further action would be taken by them. That letter, which appears as "NAB 17", is not quite in those terms, providing that "no further will be taken against Michael Boccamazzo" unless the terms of an agreement with the defendant are breached.
As regards Arrigo's second affidavit and the annexure thereto, I repeat my comments set out above in relation to the previous invoice. For the same reasons, I do not think there can be said to be a genuine dispute in respect of this invoice.
Invoice dated 24 July 2002 - $2366
It is common ground that this invoice has been paid in full save for an amount of $86 which remains outstanding. As to the basis upon which that sum has not been paid, Arrigo in his first affidavit simply says "payment have (sic) been deducted as arranged previously with Boccamazzo". There is no argument that the onus is upon the plaintiff to show that there is a genuine dispute either as to all or part of the debt the subject of the statutory demand. I am not satisfied that this statement by Boccamazzo is sufficient to discharge that onus. It is not clear what the nature of the arrangement referred to was, when it was entered into and what were its terms. Again, in my view Arrigo has not deposed to matters of any real substance. I find that there is no genuine dispute as to the amount of $86.
Invoice dated 14 August 2002 - $303.24
This invoice, in the sum of $303.24, relates to telephone charges. One needs to bear in mind in respect of this invoice that it bears the same date as the statutory demand, namely, 14 August 2002. I also note from the invoice that the payment terms are seven days. The plaintiff's position in this respect is that the defendant was not entitled to include that invoice in the statutory demand as it was not, at the date of the issuing of the demand, due and payable. The plaintiff also says that there is a genuine dispute as regards that invoice.
It is clear that in order to be the subject of a demand, a debt must be then due and payable and presently recoverable by action - see Re Elgar Heights Pty Ltd (No 1) (1995) 3 ACLC 683. In light of the note on the invoice, the effect of which in my view was that the plaintiff had seven days within which to make payment of that account, it cannot be said that at the date of issuing the demand the amount set out in the invoice was then due and payable.
Invoice dated 14 August 2002 - $2909.20
The same considerations apply to this invoice, bearing in mind that it also bears the same date as the statutory demand and the terms also require payment in seven days. As such, it was not, in my view, then due and payable as at the date of the demand.
Conclusion
In light of the matters set out above, I consider that there is no genuine dispute as regards the amount of $13,410, being the full amounts of those invoices dated 26 and 24 June 2002 in the sums of $2978 and $10,346 respectively, and the amount of $86 in respect of the account dated 24 July 2002. I would vary the demand so that it operates in that amount.
I will hear the parties as to whether I should extend time for compliance with the demand.
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