Re: Heritage Business Systems P/L - [1998] QSC 6

IN THE SUPREME COURT
OF QUEENSLAND

Application No.173 of 1998

Brisbane

Before the Hon. Mr Justice Shepherdson

[re: Heritage Business Systems P/L]

IN THE MATTER of The Corporations Law
and
IN THE MATTER of HERITAGE BUSINESS SYSTEMS PTY LTD
ACN 062 169 653

CATCHWORDS: CORPORATIONS LAW - Application to set aside statutory demand for payment - whether the applicant is the debtor - whether the applicants claim has substance.

Chadwick Industries (South Coast) Pty Ltd v. Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37.
Aitkin Transport Pty Ltd v. Voysey (1990) 1 Qd R 510.
Rohalo Pharmaceutical Pty Ltd v. R P Scherer Sp. A (1994) 15 ACSR 347.
H J Lyons & Sando Ltd v. Housten (1963) SASR 29.

Counsel:Mr Clutterbuck for the applicant.
Mr Perkins for the respondent.

Solicitors:Ellison Moschella & Co Solicitors for the applicant.
Deacons Graham & James Solicitors for the respondent.

Hearing date: 22 January 1998

JUDGMENT - SHEPHERDSON J.

Judgment delivered 5th February 1998

Heritage Business Systems Pty Ltd (hereinafter called “HBS”) has applied for an order that a statutory demand from Pac-Rim No. 3 Pty Ltd dated 18 December 1997 and served on it on 19 December 1997 be set aside. The application is brought pursuant to section 459H(1)(a) of the Corporations Law on the basis that there is a genuine dispute between the applicant and HBS about the existence of the debt to which the demand relates.
An analysis of the material shows the alleged dispute centres on the identity of the alleged debtor - is it the applicant or is it a company Heritage Internet Technology Services Pty Ltd (hereinafter called “HITS”). The respondent’s case is that the debt which is in the sum of $64,780.58 was incurred by HBS between 3 August 1997 and 14 September 1997.
The applicant relies on an affidavit of Dail Scott Wagner who was a director of each of HITS and HBS. He claims that the respondent carried out for HITS certain printing and distribution services in the production and distribution of a television guide with associated advertising. Wagner says he was associated with negotiating and conferring with officers of the respondent and more particularly the managing director Peter Hainsworth and the state manager for distribution Greg McDonald. He says he handed each of these persons his business card which showed that he was a director of HITS. He has exhibited to his affidavit a photocopy of a page from one of the distribution guides printed by the respondent. He relies on the following statement on that page:-
“Published fortnightly by Heritage Internet Technology Services Pty Ltd”
Some months before the respondent performed the work in respect of which the debt is claimed the respondent sent to:-
“Karen Dale
Heritage Internet
286 Montague Road
West End Qld 4101"
a document described as “Quote” which set out prices for printing and distribution of the proposed guide. It mentioned terms and conditions and went on:-
“The prices are also subject to:
(a)credit application…

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: [1998] QSC 6
Decision Date: 5 February 1998

CaseChat Overview and Summary

Heritage Business Systems Pty Ltd (HBS) sought an order to set aside a statutory demand from Pac-Rim No. 3 Pty Ltd. The demand, dated 18 December 1997 and served on HBS on 19 December 1997, was for the sum of $64,780.58. The basis of the application was that there was a genuine dispute regarding the existence of the debt claimed. The primary dispute was whether the debtor was HBS or Heritage Internet Technology Services Pty Ltd (HITS). The respondent argued that the debt was incurred by HBS between 3 August 1997 and 14 September 1997. HBS, however, contended that HITS was the party responsible for the debt, pointing to an affidavit from Dail Scott Wagner, a director of both companies, who stated that HITS had contracted with the respondent for printing and distribution services. Wagner claimed that he had made it clear to the respondent's officers that he was a director of HITS, not HBS.

The court had to determine whether there was a genuine dispute about the existence of the debt and if the applicant's claim had any substance. The court considered the credit application submitted by HBS, which indicated that HBS was the entity responsible for the debt. This application was signed by Wagner as a director of HBS and included terms and conditions for the service provided. The respondent, relying on the credit application and subsequent credit checks, maintained that HBS was the customer and, therefore, the party responsible for the debt. The court found that the objective intention of both parties, as determined by what reasonable business people would have intended, was that HBS would pay for the services rendered. The court dismissed the application, finding that HBS had failed to establish a genuine dispute or a claim with substance.

In conclusion, the court ruled that there was no genuine dispute about the existence of the debt and dismissed the application with costs to be taxed. The court's decision was based on the objective intention of the parties as evidenced by the credit application and the respondent's reliance on that application in conducting business with HBS.

Orders