Sharvine Pty Ltd v Bridge and Marine Enginering Pty Ltd - [2001] NSWSC 833

CITATION: SHARVINE PTY LTD v BRIDGE & MARINE ENGINERING PTY LTD [2001] NSWSC 833

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2969/00

HEARING DATE(S): 19 September 2001

JUDGMENT DATE:
21 September 2001

PARTIES :

Sharvine Pty Limited ACN 080 518 396 (Plaintiff)
Bridge and Marine Engineering Pty Limited ACN 059 317 396 (Defendant)

JUDGMENT OF: Acting Master Berecry at 1

COUNSEL : B. Coles QC (Plaintiff)
W. Stark (Defendant)

SOLICITORS: Cowley Hearne (Plaintiff)
Clayton Utz (Defendant)

CATCHWORDS: Application to set aside demand - test establishing genuine dispute - low threshold - nature of the evidence - must be more than mere assertion - failure to join joint creditors - whether a mere defect

LEGISLATION CITED: Corporations Act ss 459E, 459H, 459J

CASES CITED: Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601
Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37
Edge Technology v Lite-On Technology Corporation (2000) 34 ACSR 30
Frederico's Restaurant v Warwick Entertainment (1995) 18 ACSR 702
Manzo v 555/225 Pitt Street Pty Ltd (1990) 2 ACSR 809
Re A & K Holdings Pty Ltd [1964] VR 257

DECISION: para 24

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

ACTING MASTER BERECRY

FRIDAY, 21 SEPTEMBER 2001

2969/00 – SHARVINE PTY LTD

v
BRIDGE AND MARINE ENGINEERING PTY LTD

JUDGMENT

1 MASTER: On 6 June 2000 the defendant prepared a statutory demand for service on the plaintiff in respect of an alleged debt of $150,000. An affidavit in support of the demand was sworn by Joanne Elizabeth Thomas on 31 May 2000. The demand and supporting affidavit were served on the plaintiff on 9 June 2000. Thereafter on 29 June 2000 the plaintiff filed and served an originating process seeking to set aside the demand. The originating process was supported by an affidavit of Stephen Dale Merritt sworn on 28 June 2000. The application to set aside the demand therefore was brought within time.

BACKGROUND

2 The debt in the statutory demand relates to a project the parties were involved with for the development of a coal terminal in Newcastle. The project commenced in 1996 and the parties involved at the commencement of the project were Austrack Pty Limited (Austrack), the defendant in these proceedings and a related company, Rowe and Thomas (NSW) Pty Limited (Rowe and Thomas). Throughout 1997 Brambles conducted due diligence in respect to the project. In late 1997 the plaintiff was incorporated. The plaintiff is a company within the Brambles group. In 1996 the defendant prepared certain material and submitted it to a German company, Krupp Engineering (Krupp). On 9 December 1997 an agreement was reached that Sharvine would take over Austrack’s interests in the project.

3 On 12 January 1996 a deed was entered into between Austrack, Rowe and Thomas and the defendant. That document was called ‘Civil and Structural Design and Construct Development Deed’. In the deed the defendant and Rowe and…

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 Sharvine Pty Ltd v Bridge and Marine Enginering Pty Ltd

Details

AGLC: Sharvine Pty Ltd v Bridge and Marine Enginering Pty Ltd [2001] NSWSC 833
Case: [2001] NSWSC 833
Decision Date: 21 September 2001

CaseChat Overview and Summary

The parties involved in this case were Sharvine Pty Ltd, the applicant, and Bridge and Marine Engineering Pty Ltd, the respondent. The dispute arose from an application by Sharvine to set aside a demand made by Bridge for payment of a debt. The matter was heard in the Supreme Court of Victoria. The central legal issue that the court had to address was the criteria for establishing a genuine dispute regarding a debt and the threshold for setting aside a demand for payment. Specifically, the court needed to determine whether the evidence presented by Sharvine was sufficient to meet the low threshold for establishing a genuine dispute, beyond mere assertions, and whether the failure to join joint creditors constituted a defect that could not be rectified.

The court examined the nature and quality of the evidence provided by Sharvine to support their claim of a genuine dispute. It held that the evidence had to be more than mere assertions and needed to be substantiated with some factual basis. The court also considered whether the failure to join joint creditors was a fundamental defect that could not be remedied. The court found that the evidence presented by Sharvine was sufficient to establish a genuine dispute, even if it was not conclusive. Furthermore, the court held that the failure to join joint creditors did not necessarily constitute an insurmountable defect if it could be rectified through an amendment to the proceedings. The court concluded that the application to set aside the demand for payment could be granted if the genuine dispute was established, and the defect could be remedied.

As a result of the court's findings, Sharvine's application to set aside the demand for payment was successful. The court determined that the evidence provided by Sharvine was sufficient to establish a genuine dispute, and the failure to join joint creditors was not a fundamental defect that could not be rectified. The court ordered that the demand for payment be set aside and that the proceedings be allowed to continue with the necessary amendments to include the joint creditors. The final orders included setting aside the demand for payment, allowing the application to proceed, and directing the parties to amend the proceedings to include the joint creditors.

Orders