Pointerra Limited v Here Europe B.V - [2024] WASC 212

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   POINTERRA LIMITED -v- HERE EUROPE B.V. [2024] WASC 212
CORAM:   SOLOMON J
HEARD:   6 JUNE 2024
DELIVERED          :   6 JUNE 2024
PUBLISHED           :   10 JUNE 2024
FILE NO/S:   COR 160 of 2023
BETWEEN:   POINTERRA LIMITED
Plaintiff
AND
HERE EUROPE B.V.
Defendant

Catchwords:

Corporations law - Application to set aside statutory demand - Where contract governed by foreign law - Genuine dispute - Offsetting claim - Whether issue of construction should be resolved under s 459G Corporations Act - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 459G, s 459H, s 459J

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr S Penrose
Defendant	:	Mr WCJ Zappia

Solicitors:

Plaintiff	:	Tottle Partners
Defendant	:	Dentons Australia

Cases referred to in decision:

Advanced National Services v Daintree Contractors [2019] NSWCA 270
CA & Associates v Fendi Group [2020] WASCA 31
Complete Hire and Sales Pty Ltd v Terra Firma Constructions [2018] WASCA 111
Creata (Aust) Pty Ltd v Gary Adrian Faull [2017] NSWCA 230
Du Buisson Perrine v Chan 49 WAR 432
Farrant v Leburn [1970] WAR 179
McDonald v Dennys Lascelles (1933) 48 CLR 457; [1933] HCA 25
Secretary, Department of Social Services v Vader (by his litigation guardian) [2024] FCAFC 37
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138

SOLOMON J:

(This judgment was delivered largely extemporaneously on 6 June 2024 but was unable to be completed. It has been edited from the transcript and was supplemented in order to complete the reasons)

The application

This is the application of the plaintiff (Pointerra) under s 459G of the Corporations Act 2001 (Corporations Act) to set aside a statutory demand served on Pointerra by the defendant (HERE) and dated 22 September 2023. The factual background is relevantly uncontroversial and is set out in an affidavit on behalf of Pointerra by its managing director, Ian Olson, and an affidavit on behalf of the defendant by HERE's account manager, Mark Wallace. The relevant background may be summarised as follows.

Background

Pointerra is a technology company listed on the Australian Stock Exchange. It specialises in software which analyses three-dimensional data comprising three-dimension co-ordinates corresponding to spatial locations. Pointerra procures data from other enterprises that acquire the data by, for example, physical travel on roads. According to the evidence of Mr Olson, it is important for Pointerra's business purposes that the three-dimensional source data be very accurate in all three dimensions, and from one batch of data to another. Mr Olson gave as an example of the service provided by Pointerra, data that can allow local councils to monitor fixed assets such as sign posts, roads or pavements allowing a local council, for example, to identify a missing park bench or street sign.
HERE is a company based in the Netherlands (and, it appears, also in Chicago in the United States). HERE's business includes the supply under licence…

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.

Continue reading Pointerra Limited v Here Europe B.V

Details

AGLC: Pointerra Limited v Here Europe B.V [2024] WASC 212
Case: [2024] WASC 212
Decision Date: 10 JUNE 2024

CaseChat Overview and Summary

Pointerra Limited filed an application to set aside a statutory demand issued by Here Europe B.V, an international company. The dispute revolves around the interpretation of a contract governed by Dutch law, which contains a forum selection clause. Pointerra contends that there is a genuine dispute over the amount claimed, as it asserts an offsetting claim. The court was tasked with determining whether the issue of contract interpretation should be resolved under section 459G of the Corporations Act.

The central legal issues in this case involved the applicability of section 459G of the Corporations Act, which allows the court to set aside a statutory demand if there is a genuine dispute over the existence or amount of a debt. Here Europe B.V argued that the court should not consider the merits of the contract dispute, while Pointerra submitted that the court should interpret the contract to determine if there is a genuine dispute. The court had to balance the principle of comity towards foreign jurisdictions with the need to fairly adjudicate the statutory demand.

In its decision, the court held that the issue of contract interpretation should indeed be resolved under section 459G of the Corporations Act. The court found that there was a genuine dispute over the amount claimed, as Pointerra's offsetting claim was not frivolous or vexatious. The court emphasised that section 459G allows the court to consider the merits of the underlying dispute when determining the existence or amount of the debt, even when the contract is governed by foreign law. Consequently, the court set aside the statutory demand.

The court ordered that the statutory demand issued by Here Europe B.V against Pointerra Limited be set aside. The court also made an order for costs, directing Pointerra to pay Here Europe B.V's costs of the application, on an indemnity basis. This decision underscores the importance of considering the merits of the underlying dispute when deciding a statutory demand application, particularly when there are complex issues of contract interpretation involved.

Orders