Sovereign Building Company Pty Ltd v Sheehan Group Pty Ltd - [2025] WASC 11

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SOVEREIGN BUILDING COMPANY PTY LTD -v- SHEEHAN GROUP PTY LTD [2025] WASC 11
CORAM:   LUNDBERG J
HEARD:   27 NOVEMBER 2024 & 19 DECEMBER 2024
DELIVERED          :   23 JANUARY 2025
FILE NO/S:   COR 129 of 2024
BETWEEN:   SOVEREIGN BUILDING COMPANY PTY LTD
Plaintiff
AND
SHEEHAN GROUP PTY LTD
Defendant

Catchwords:

Corporations - Statutory demand - Application to set aside a statutory demand under s 459G of the Corporations Act 2001 (Cth) - Building contracts for the provision of electrical services - Demand based on 'payment claims' and a 'payment dispute' asserted to have arisen under the Construction Contracts (Former Provisions) Act 2004 (WA) - No adjudication initiated by the defendant in relation to the 'payment claims' - Whether plaintiff entitled to assert a 'genuine dispute' - Whether genuine dispute demonstrated - Whether existence of 'offsetting claims' demonstrated - Turns on own facts

Corporations - Statutory demand - Whether plaintiff complied with 21 day time period in s 459G(2) of the Corporations Act 2001 (Cth) - Whether plaintiff permitted to file further affidavit evidence to address timing of service of the statutory demand - Consideration of Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 - Leave granted to permit further affidavit evidence on questions of service

Practice and procedure - Whether conferral requirement in O 59 r 9(1) of the Rules of the Supreme Court 1971 (WA) applicable to application to set aside a statutory demand filed under the Corporations Act 2001 (Cth) - Whether an 'application in chambers' - Not necessary to decide whether conferral requirement applicable - Any conferral requirement should be waived in the circumstances

Legislation:

Acts Interpretation Act 1901 (Cth), s 36
Civil Disputes Resolution Act 2011 (Cth), s 10, s 11, s 12
Construction Contracts (Former Provisions) Act 2004 (WA)
Corporations Act 2001 (Cth), s 105, s 459E, s 459G, s 459H
Corporations Regulations 2001 (Cth), reg 5.4.01AAA(1)(b) and reg 5.4.01AAA(2)(b)
Rules of the Supreme Court 1971 (WA), O 58, O 59
Supreme Court (Corporations) (WA) Rules 2004, r 1.3, r 2.2, r 2.7

Result:

Application to set aside statutory demand granted.
Conferral requirement in O 59 r 9(1) RSC waived.

Category: B

Representation:

Counsel:

Plaintiff	:	P N Poliwka
Defendant	:	M Noonan-Crowe

Solicitors:

Plaintiff	:	Poliwka Legal
Defendant	:	Noonan-Crowe Lawyers

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

CA & Associates Pty Ltd v Fini Group Pty Ltd [2020] WASCA 31
Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553
Deputy Commission of Taxation for Commonwealth of Australia v Robinswood Pty Ltd [2001] WASC 91
Devere Holdings Pty Ltd v Verge [2006] WASC 297
Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2012] WASCA 91
Elm Financial Services Pty Ltd v MacDougal [2004] NSWSC 560
Energy Equity Corporation Ltd v Sinedie Pty Ltd [2001] WASCA 419; (2001) 166 FLR 179
Flintel Pty Ltd v Flexible Telecommunications Pty Ltd [2024] WASC 63
Georgiou Building v Perrinepod [2012] WASC 72
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund [1996] FCA 822; (1996) 70 FCR 452
H'Var Steel Services Pty Ltd v TDC Concrete Pty Ltd [2017] WASC 63
Preiner v Structrite Pty Ltd as trustee for the Zambia Trust [2019] WASC 367
Rohalo Pharmaceutical Pty Ltd v R P Scherer SpA & Pharmagel SpA (1994) 15 ACSR 347
Sceam Constructions Pty Ltd v Clyne [2021] VSCA 270
Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (No 2) [2012] FCA 977
Verimark Pty Ltd v Passiontree Velvet Pty Ltd [2019] NSWSC 455

Table of Contents

A. Introduction

B. The issues arising on the Application

Issue 1 - whether the Application should be dismissed given the absence of conferral under O 59 r 9(1) RSC

Issue 2 - whether the plaintiff may file additional affidavit evidence beyond the 21-day time period

Issue 3 - whether there is a genuine dispute pursuant to s 459H(1)(a)

Issue 4 - whether there is an offsetting claim pursuant to s 459H(1)(b)

C. Materials relied upon by the parties

D. Legislative framework

E. Factual background to the Application

The parties and the job sites

Termination of the commercial relationship

Payment claims issued by the defendant

Applicable provisions of the CCA

The parties' factual contentions

F. Disposition of issue 1 - the requirement for conferral

Background

Consideration of O 59 r 9(1) RSC

The Court's discretion to waive under O 59 r 9(2) RSC

G. Disposition of issue 2 - filing further affidavits as to service

Background

The Graywinter decision

Evidence as to service

H. Disposition of issue 3 - genuine dispute

Overview

Termination of the contracts by the plaintiff

Failure to issue notices of dispute

Adequacy of the evidence

I. Disposition of issue 4 - offsetting claim

J. Conclusion and orders

ATTACHMENT A Summary of the claims the subject of the Statutory Demand

ATTACHMENT B Summary of the Offsetting Claims

LUNDBERG J:

A. Introduction

The plaintiff has applied by originating process dated 15 August 2024 (Application), to set aside the Statutory Demand issued to the plaintiff by the defendant dated 24 July 2024 (the Statutory Demand). The Statutory Demand sought payment of the amount of $40,549.30.
The Statutory Demand was not based upon a judgment debt. Rather, it was supported by an affidavit which asserted the existence of a debt owed to the defendant, based upon four individual 'payment claims' issued by the defendant, all dated 21 June 2024. The payment claims were each expressly marked as being issued pursuant to the construction adjudication legislation operative in Western Australia, namely the Construction Contracts (Former Provisions) Act 2004 (WA) (the CCA).[1]
[1] The parties agreed that the provisions of the CCA apply to this dispute, in the form as amended by the Building and Construction Industry (Security of Payment) Act 2021 (WA).
The Application is brought pursuant to s 459G(1) of the Corporations Act 2001 (Cth) (the CorporationsAct). The regime by which a statutory demand may be set aside is generally found in div 3 pt 5.4 of the Corporations Act. Within the Application, the plaintiff asserted that:
(a)there was a genuine dispute as to the amounts owed, relying on s 459H(1)(a); and
(b)offsetting claims existed which exceeded the amount claimed in the Statutory Demand, relying on s 459H(1)(b).
The Application was heard on 27 November 2024 and 19 December 2024. The Application was strongly opposed by the defendant. For the reasons which follow, I consider the Application should be granted and orders should be made to set aside the Statutory Demand.

B. The issues arising on the Application

As the proceedings unfolded, it emerged there were four issues requiring determination as part of the Application.

Issue 1 - whether the Application should be dismissed given the absence of conferral under O 59 r 9(1) RSC

First, there was a threshold objection to the proceedings raised by the defendant, as to the lack of conferral on the part of the plaintiff before it filed the proceedings. The defendant calls in aid of its position the requirements of O 59 r 9(1) of the Rules of the Supreme Court 1971 (WA) (RSC). I have addressed this issue at [66] to [102] of these reasons.

Issue 2 - whether the plaintiff may file additional affidavit evidence beyond the 21-day time period

Second, the defendant asserted the Application was incompetent by reason of a failure on the part of the plaintiff to demonstrate that the Application had been made within the mandatory 21-day time period prescribed by s 459G(2) of the Corporations Act. The defendant also opposed leave being granted to the plaintiff to file additional evidence to address both the date on which the Statutory Demand was served and the date on which these proceedings were served.
I determined this issue at the second hearing on 19 December 2024 and made directions to permit the plaintiff to file additional evidence as to matters of service. My reasons on this issue are set out at [103] to [119] below.

Issue 3 - whether there is a genuine dispute pursuant to s 459H(1)(a)

Third, the plaintiff has asserted that the Statutory Demand should be set aside pursuant to s 459H(1)(a) of the Corporations Act on the basis the plaintiff maintains there is a genuine dispute as to the workmanship and completion of the subject matter of the invoices claimed in the Statutory Demand. I have addressed this issue at [120] to [150] of these reasons.

Issue 4 - whether there is an offsetting claim pursuant to s 459H(1)(b)

Fourth, the plaintiff has asserted that the Statutory Demand should be set aside pursuant to s 459H(1)(b) of the Corporations Act on the basis the plaintiff has an offsetting claim exceeding the amount claimed in the Statutory Demand. I have addressed this issue at [151] to [169] of these reasons.
At least initially, the plaintiff also asserted the Statutory Demand was defective and should be set aside under s 459J of the Corporations Act. However, this ground is no longer pressed, it being acknowledged by the plaintiff that any irregularity or defect was not productive of substantial injustice to the plaintiff.[2]
[2] PS [10].

C. Materials relied upon by the parties

The evidence in support of the Application was adduced by way of two affidavits sworn by the sole director of the plaintiff, David John Savietto. I refer to his first affidavit, sworn on 15 August 2024 (First Savietto Affidavit), and his second affidavit sworn on 8 October 2024 (Second Savietto Affidavit). No objection was taken to these affidavits and there was no application to cross-examine the deponent.
In addition, at the hearing on 27 November 2024, the plaintiff tendered, without objection, a copy of a historical company extract relating to the defendant obtained from ASIC, as required by rule 2.4A(3) of the Supreme Court (Corporations) (WA) Rules 2004 (Corporations Rules).[3]
[3] ASIC Current Company Extract for Sovereign Building Company Pty Ltd dated 25 November 2024.
An affidavit in opposition was sworn by Brendan William Sheehan on 16 September 2024 (Sheehan Affidavit). Mr Sheehan is the sole director of the defendant. The plaintiff did not object to the Sheehan Affidavit being received into evidence and there was no application to cross-examine the deponent.
Pursuant to directions made on 19 December 2024, the plaintiff filed additional affidavits as to service, which were filed on 10 January 2025. I will address these affidavits when dealing with the second issue.
The parties filed outlines of submissions ahead of the first hearing of the matter. I refer to the plaintiff's primary outline dated 31 October 2024 and the defendant's primary outline dated 21 November 2024. The parties also filed additional outlines in accordance with directions made on 9 December 2024, which I will address below.
Finally, I refer to the worksheets prepared by the solicitors for the defendant which cross-referenced the information in the affidavits concerning the various invoices and job sites, which were helpful. The worksheets were attached to the defendant's submissions dated 21 November 2024, with a revised version of Annexure A filed on 18 December 2024.

D. Legislative framework

It is convenient at this point to set out the relevant provisions in div 3 pt 5.4 of the Corporations Act which provide the statutory basis for the plaintiff's Application. Section 459G of the Corporations Act provides as follows:
s 459G Company may apply

(1)A company may apply to the Court for an order setting aside a statutory demand served on the company.
(2)An application may only be made within the statutory period after the demand is so served.
(3)An application is made in accordance with this section only if, within that period:
(a)an affidavit supporting the application is filed with the Court; and
(b)a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.

The 'statutory period' referred to within s 459G(2) is defined in s 9 of the Corporations Act to mean, for present purposes, the period of 21-days, given the terms of reg 5.4.01AAA(2)(b) of the Corporations Regulations 2001 (Cth).
Section 459H of the Corporations Act provides that if the court is satisfied there is a 'genuine dispute' about the existence or amount of a debt to which a statutory demand relates and/or that a company has an 'offsetting claim' then it 'must calculate the substantiated amount of the demand in accordance with the formula: Admitted total - Offsetting total'.
Section 459H(3) and s 459H(4) provide:
(3) If the substantiated amount is less than the statutory minimum, the Court must, by order, set aside the demand.
(4) If the substantiated amount is at least as great as the statutory minimum, the Court may make an order:
(a) varying the demand as specified in the order; and
(b) declaring the demand to have had effect, as so varied, as from when the demand was served on the company.
Further, an offsetting claim is defined in s 459H(5) as 'a genuine claim that the company has against the respondent by way of counterclaim, set‑off or cross‑demand (even if it does not arise out of the same transaction or circumstances as a debt to which the demand relates)'.
The 'statutory minimum' referred to within s 459H is presently $4,000.[4]
[4] Corporations Regulations 2001 (Cth), reg 5.4.01AAA(1)(b).
In CA & Associates Pty Ltd v Fini Group Pty Ltd,[5] the Court of Appeal summarised the principles applicable to the determination of whether there is a 'genuine dispute' as to the existence of a debt for the purposes of the statutory demand regime and s 459H(1)(a). The Court noted that the following principles were well established:[6]
1.The court's function is to determine whether there is a genuine dispute; the court is not expected to undertake an extended inquiry or attempt to weigh the merits of the dispute. It is not part of the court's function to resolve the dispute.
2.It suffices if there is a 'plausible contention' requiring 'further investigation' - something that may be equated to the criterion of whether there is a 'serious question to be tried'.
3.However, the applicant must establish that: (a) the dispute is bona fide and truly exists in fact; and (b) the grounds alleging the existence of the dispute are real and not spurious, hypothetical, illusory or misconceived. (footnotes omitted)
[5] CA & Associates Pty Ltd v Fini Group Pty Ltd [2020] WASCA 31 [4] (CA & Associates).
[6] CA & Associates [35] (Buss P and Vaughan JA).
Subsequently, the Court of Appeal again addressed the principles which are applicable to the application of the above provisions in H'Var Steel Services Pty Ltd v TDC Concrete Pty Ltd.[7] In their decision, the Court endorsed the following statement of Lindgren J in Rohalo Pharmaceutical Pty Ltd v R P Scherer SpA & Pharmagel SpA:[8]
Paragraph (a) of subs 459H(1) and the definition of 'admitted amount' in subs 459H(5) both refer to the existence of a 'genuine dispute', and the definition of 'offsetting claim' in s 459H(5) refers to the existence of a 'genuine claim'. Plainly, the intention is to refer to something more than the mere 'raising' of a dispute and the mere 'making' of a claim. The provisions assume that the dispute and offsetting claim have an 'objective' existence the genuineness of which is capable of being assessed. The word 'genuine' is included to sound a note of warning that the propounding of spurious disputes and claims is to be expected but must be excluded from consideration. (original emphasis)
[7] H'Var Steel Services Pty Ltd v TDC Concrete Pty Ltd [2017] WASC 63 (Newnes JA, Murphy JA and Beech J).
[8] Rohalo Pharmaceutical Pty Ltd v R P Scherer SpA & Pharmagel SpA (1994) 15 ACSR 347, 353.
The Court in H'Var Steel ServicesPty Ltd v TDC Concrete Pty Ltd set out the following further principles, which I must apply in approaching the present application:
[36]Ultimately, in determining whether it is satisfied that the company has a genuine offsetting claim, the court considers both the sufficiency of the evidence relied on to support the existence of an offsetting claim, and the sufficiency of the evidence in relation to the amount of the claim.
[37]A company seeking to set aside or reduce a statutory demand on the basis of an offsetting claim does not need to set out evidence supporting the claim in meticulous detail. The evidence need only be sufficient for the court to make a reasonable assessment or estimate of the amount of the offsetting claim. It is sufficient that there be, on the evidence, a plausible and coherent basis for quantifying the genuinely asserted claim, or showing that the claim, despite elements of uncertainty, can be seen to be, in any event, greater than the debt demanded. The narrower the margin between the alleged debt and the plaintiff's estimate or initial quantification, the greater will be the need for particularity in assessing the amount of the offsetting claim.
[38]In conducting this exercise, the court must keep in mind that the task which it is performing is the determination of the amount of a genuine claim, which must exist in fact, rather than resolving the claim or attempting to predict its outcome. (footnotes omitted)

E. Factual background to the Application

Before I move to address the specific issues arising on the Application, it is appropriate to provide some factual context to the matter, and a brief explanation of the applicable provisions in the CCA.

The parties and the job sites

The plaintiff is a building company. The defendant is an electrical services contractor. Over some years, the plaintiff appears to have engaged the defendant to provide electrical services at various job sites. The engagement of the defendant appears to have been undertaken through a process of quotations and purchase orders, rather than via a formal written contract.[9] In the course of the various engagements, the defendant would issue invoices and payment claims to the plaintiff for the services provided.
[9] With terms implied as set out in the div 2 pt 2 of the CCA (see s 13 to s 23 and sch 1).
The present dispute between the parties concerns nine particular work sites, each of which is said by the parties to have been the subject of separate contracts. The details of the nine sites are set out in Attachments A and B to these reasons. The sites can be categorised into two groups.
The first group consists of four job sites, in Willeton, Westminster, Maylands and Nedlands. These sites are the subject of the payment claims which are said by the defendant to underpin the Statutory Demand. The second group consists of five job sites, in Maylands, North Coogee, Clarkson, Waterford and Sorrento. These sites are the subject of the offsetting claims which are asserted by the plaintiff.

Termination of the commercial relationship

Commencing in around May 2024, the commercial relationship between the parties began to sour. Several emails were exchanged by the directors of the parties as to whether the defendant was permitted to charge for work undertaken at rates greater than the plaintiff maintained were fixed by contract.[10] The directors each thought the other was playing games and not acting professionally. Solicitors were then called in.
[10] First Savietto Affidavit, Attachment DJS-3, which includes emails exchanged by Mr Savietto and Mr Sheehan between 21 and 27 May 2024.
On 31 May 2024, a letter was issued to the defendant by the plaintiff terminating the defendant's engagement.[11] That letter explained the plaintiff's understanding of the contractual position. The plaintiff contended that separate contracts were formed between the parties, which required the defendant to provide electrical services. This was undertaken through the issuing of quotations by the defendant, followed by a purchase order on the plaintiff's usual terms accepting the price as quoted, after which the defendant commenced providing services consistent with the purchase orders.
[11] First Savietto Affidavit, Attachment DJS-4.

In its letter, the plaintiff emphasised a term within each purchase order which it says requires the defendant to maintain its pricing. The term reads:
Purchase order pricing applicable from date of submissions, pricing is held until supplied/installed on site.
The plaintiff also highlighted the requirement to adhere to the plaintiff's timetable, which appears in a further term included within each purchase order.
The plaintiff's letter recorded its position that, by reason of the various emails sent by the defendant, the defendant had evinced an unwillingness to perform the contracts for the provision of services in a manner inconsistent with the agreed terms. The plaintiff noted, in this respect, the statement in the defendant's emails that 'we are under no obligation to complete projects at the current rates due to the large increases in materials and wages over a 3 year period'. The plaintiff obviously disagreed with this position, given its reliance on the contractual provision to which I have earlier referred.
All of this was enough for the plaintiff to form the view that the defendant had repudiated the contract. The plaintiff purported to accept that repudiation and terminated the contracts between them, identifying contracts for eight specific job sites. The plaintiff's letter further noted that it would engage an alternative provider of electrical services to assess and complete the projects which the defendant had commenced.
The plaintiff's letter concluded as follows:
Should the new contractor's price exceed the price that was agree upon in each contract, we intend to seek the difference from you (once the full extent of our contractual damage is known). We estimate this will exceed any amount that you say remains payable to you.
The defendant's solicitors responded by letter on 21 June 2024.[12] The letter disputed the contentions advanced by the plaintiff, and described the pricing language in the purchase orders as vague and meaningless. The reference to a timetable was also derided as meaningless and uncertain. Arguments were raised in the letter as to the application of the Australian Consumer Law. The letter also raises complaints as to the conduct of the plaintiff and delays on its part.
[12] First Savietto Affidavit, Attachment DJS-5.
Ultimately, the defendant's solicitors contended that the termination was wrongful and itself constituted a repudiation, which the defendant accepted.
The letter from the defendant's solicitors attached claims relating to the work completed by the defendant, in the amount of $40,549.30. The attached documents are the payment claims which form the basis of the Statutory Demand which is dated 24 July 2024. The letter concluded as follows:
In addition to the debt due and owing as a result of our client's completed work, we reserve our client's rights to recover damages against your company for our client's loss and damage occasioned by your breach of the agreements.

Payment claims issued by the defendant

The payment claims issued by the defendant are each expressly marked as being issued pursuant to cl 5(1) of div 4 of sch 1 to the CCA. That particular clause of the schedule contains the regime for making payments which is implied into each 'construction contract' by operation of s 16 of the CCA, in circumstances where there is no written provision as to how a party is to make a claim to another party for payment.
The payment claims, each of which is signed by Mr Sheehan, required payment of the total amount of $40,549.30, as detailed in Attachment A to these reasons, across four job sites.[13] Each of these payment claims identifies a particular contract or site, and various order numbers. The claims each included the following statements, adjusted to identify the relevant invoice numbers:[14]
The Contractor makes a claim to the Principal for payment of the Amount of Claim in relation to the performance by the Contractor of its obligations under the contract. The works completed are described in the attached Invoices Number 69629 and 69630, or the orders and variations referred to therein.
Payment must be made within 28 days of the date of this notice.
[13] First Savietto Affidavit, Attachment DJS-5 (the claims are also included within Attachment DJS-2, which is the supporting affidavit to the Statutory Demand).
[14] These statements are extracted from the payment claim which concerns the contract for the Westminster property.
Each of the payment claims is supported by one or more tax invoices, issued by the defendant to the plaintiff on various dates.
For example, the payment claim for the Westminster job in the amount of $4,832.30 is supported by two tax invoices, in the individual amounts of $4,686 and $146.30. In general terms, the tax invoices themselves contain very little detail and are far from self-explanatory. By way of example:
(a)tax invoice 69630 in the amount of $146.30 relating to the Westminster job site states 'Variation';
(b)tax invoice 69751 in the amount of $15,400 relating to the Maylands job site states 'Progress Calim [sic] - Fit Off';
(c)tax invoice 70460 in the amount of $2,076.80 relating to the Nedlands job site states 'Variations as quoted', followed by references to the phrases 'DGPO ', 'Data Point', 'Risco - DSC Alarm' and 'add sensors'.
Some of the invoices have additional detail included. For example, tax invoice 70466 in the amount of $4,515.50 relating to the Nedlands job site states 'Variations', followed by two descriptions:
Supply, install, trench and wire 2 x bunkers to front piers (not quoted and not on electrical Plans)
Rewire ground Floor to under side of slab due to damaged conduits by Concrete install to suspended slab - Labour only

Applicable provisions of the CCA

It is not in dispute that the plaintiff, by failing to give the defendant a notice of dispute, thus failed to reject or dispute the payment claims which had been issued by the defendant. Such a notice of dispute was required to be given within the 14 day time period implied into the parties' contract by cl 7(1) of sch 1 to the CCA.
It is also not in dispute that the plaintiff failed to pay any of the payment claims within the 28 day time period implied by cl 7(3) of sch 1 to the CCA.[15]
[15] PS [11].
By operation of s 6(1)(a) of the CCA, a 'payment dispute' arose once the 28 day time period referred to above had elapsed. The existence of a 'payment dispute' entitles a party to apply to have the dispute adjudicated under pt 3 of the CCA. An application for adjudication is to be made within 90 business days after the dispute arises (or the period identified in s 37(2)(b)), and is to be prepared and issued as set out in s 26(1) and s 26(2) of the CCA.
The plaintiff submits that the appropriate course of action for the defendant at that juncture was to engage the rapid adjudication process set out in the CCA. The object of the adjudication process is to determine such disputes 'fairly and as quickly, informally and inexpensively as possible': s 30 CCA. The broad purpose of the legislative regime, insofar as it relates to payment disputes, is as follows:[16]
[T]o ensure that, in construction contracts, progress claims are paid on time and that principals obliged to pay do not act as their own judge and jury and hold up payment on their own assertion that they have a defence warranting refusal to pay. It is a 'pay now, argue later' system.
[16] Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2012] WASCA 91 [55] (Pullin JA, Newnes and Murphy JJA agreeing).
It may be accepted that a determination made by an adjudicator that a payment must be made gives rise to a debt presently due and payable by the counterparty: Georgiou Building v Perrinepod;[17] Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd.[18]
[17] Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 [32].
[18] Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [55] (Pullin JA, Newnes and Murphy JJA agreeing).
Once a determination is obtained through the adjudication process, a party entitled to be paid an amount under such a determination 'may enforce the determination' by filing in a court of competent jurisdiction a certified copy of the determination and an affidavit as to the amount which has not been paid: s 43(2) CCA. Upon filing those documents, 'the determination is taken to be an order of the court, and may be enforced accordingly': s 43(3) CCA.
Thereafter, the enforcement mechanisms provided for in the Civil Judgments Enforcement Act 2004 (WA) may be engaged by a party having the benefit of the determination. Additionally, it has been held that a party may 'enforce' the judgment obtained under s 43(2) by serving a statutory demand pursuant to s 459E(1) of the Corporations Act and thereafter by applying to wind up a company which does not make payment in response to a demand: Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd.[19]
[19] Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [57] – [59] (Pullin JA, Newnes and Murphy JJA agreeing).
In the present case, the defendant did not initiate an application for the adjudication of any 'payment disputes', connected with the above payment claims. Rather, the defendant sought to directly engage the statutory demand procedure in s 459E of the Corporations Act.
The absence of any determination under pt 3 of the CCA in respect of the payment dispute which arose in this case does not preclude the defendant from utilising the statutory demand procedure, in my view. It does, however, prevent the defendant from asserting there can be no 'genuine dispute' in respect of the amounts claimed. Put another way, the 'genuine dispute' ground in s 459H(1)(a) may be relied upon by the plaintiff as a means of setting aside the Statutory Demand. Whether that ground is made out will require an examination of the evidence presented by the parties.

The parties' factual contentions

Returning then to the factual background, in broad terms, I note the First Savietto Affidavit provides an explanation, from the plaintiff's perspective, of the factual matters which are said to give rise to a genuine dispute in respect of the amount claimed in the Statutory Demand.[20]
[20] First Savietto Affidavit [10] - [19].
At a threshold level, the plaintiff complains that the Statutory Demand was not supported by any quotations, purchase orders or electrical compliance certificates for the four sites in question. The plaintiff has itself adduced the applicable quotations and other documents in the First Savietto Affidavit.
By reference to those documents, the plaintiff contends that the quotations and purchase orders do not entitle the dispatch of progress claims by the defendant (for the Willeton, Maylands and Nedlands sites), further notes that there are no purchase orders for certain of the invoices on the Nedlands site, complains that there are unexplained deductions on the invoice for the Westminster site, and emphasises the absence of accompanying electrical compliance certificates on all sites (which it says would generally be issued upon completion). Absent those compliance certificates, the plaintiff submits the work performed by the defendant has no value, without engaging another electrical contractor.
Further complaints are advanced by Mr Savietto as to the level of completeness or satisfactory completion of the work at each of the sites, as at the time that the defendant ceased works. By way of example, at the Willetton site, Mr Savietto deposes that the downlights cut out, the final fit was off, the switchboard fit was off, and testing was incomplete.
By way of further example, at the Nedlands site, Mr Savietto deposes that, in respect of all units on the site, the site main switchboard fit was off, and the site main switchboard meter connections, alarms, sub-boards and testing were incomplete. Further, in unit 3, Mr Savietto observed that ovens 1 and 2 and the light for the switchboard needed to be extended, the downstairs toilet fan would not turn off, and the alfresco, garage, toilet and laundry lights would not turn on.
Mr Savietto deposes that further investigations are being conducted to understand the full extent of the faulty work.
As a result of the termination of the defendant, the plaintiff engaged the company 'Automated Living' as its new electrical contractor for all jobs sites at which the defendant had formerly been providing electrical services to the plaintiff, including the four sites I have mentioned which are the subject of the Statutory Demand. The plaintiff received quotations from Automated Living to complete the work on the four sites, which total $67,634.60.
The offsetting claims asserted by the plaintiff arise from several contracts said to be comprised of the quotations issued by the defendant and the plaintiff's purchase orders for job sites, other than those mentioned at [42] above. The plaintiff maintains the price for the work to be performed under those contracts was fixed, and the defendant's refusal to perform the work under the contracts at the fixed price was a repudiation.[21] The defendant posits a different legal view in this regard.[22]
[21] PS [22].
[22] PS [23].
In the First Savietto Affidavit, Mr Savietto has explained the basis of the offsetting claims.[23] Mr Savietto refers to the work at five other sites situated in Maylands, North Coogee, Clarkson, Waterford and Sorrento. The affidavit attaches the quotations which were received from the defendant in respect of those sites, which he says were accepted by the plaintiff and led to the defendant commencing work on the sites. It appears the defendant refused to perform the agreed works without a price increase, which Mr Savietto says is contrary to the quotations which make no provision for increases in price.
[23] First Savietto Affidavit [20] - [30].
The plaintiff terminated the services of the defendant on these sites as a result, according to Mr Savietto, and intends to pursue claims against the defendant based on the alleged repudiation by the defendant. The plaintiff proposes to claim the difference between the amount the plaintiff will now need to pay Automated Living to undertake the work and the amount it agreed to pay the defendant to do the work.
The overall aggregate amount of the offsetting claim is at least $59,179.44 according to Mr Savietto, and may well be more with the inclusion of the difference in quotations for the four sites.

F. Disposition of issue 1 - the requirement for conferral

Background

There is a threshold objection to the proceedings which has been raised by the defendant, as to the lack of conferral by the plaintiff before it filed the proceedings. The defendant refers to O 59 r 9(1) RSC in this regard.
Rule 9 is peculiarly Western Australian in origin, although it is underpinned by objects which are similar to those which provide the foundation for the 'genuine steps' requirement applicable at federal level, established by the Civil Disputes Resolution Act 2011 (Cth) (CDR Act).
Rule 9 requires that applications to be made in chambers must be preceded by appropriate conferral between the parties, with a memorandum of conferral required to be filed. The operation of the provision may be waived in cases of urgency or for other good reason.
It is convenient at this point to set out the relevant terms of O 59 RSC:
1.Business to be dealt with in chambers
(1)The business to be disposed of in chambers shall consist of —
(a)applications for time to plead, for leave to amend pleadings, for discovery and inspection of documents, and generally all applications relating to the conduct of any cause or matter;
(b)subject to rule 2, civil proceedings commenced by originating summons;
(c)applications which by these rules or any Act may be heard in chambers;
(d)any application that may be made to the Court or a judge under a written law of the State or a law of the Commonwealth except —
(i)an appeal, or an application to review a decision; and
(ii)an application that the law says cannot be heard in chambers;
(e)applications for the leave of the Court;
(f) applications for payment or transfer to any person of any cash or securities standing to the credit of any cause or matter;
…
(q)such other matters as the judge may think fit to dispose of at chambers.
(2) All proceedings before a registrar are to be conducted in chambers unless a judge orders, or a written law provides, otherwise. (underlining added)
2.Hearings may be in open court or chambers
(1) Where in any cause or matter commenced by originating summons it appears to the Court at any stage of the proceedings, that the proceedings should for any reason be heard in open court, the Court may order that the hearing or further hearing of the proceedings shall be so held, and may give all necessary directions for the further conduct of the cause or matter.
(2) Proceedings commenced by originating summons which are brought on for hearing or further hearing in open court, may, if the Court thinks fit, be adjourned into chambers.
3.Applications in chambers
(1) If these rules do not require or authorise an application in chambers to be made in some other manner —
(a) an application to commence proceedings in chambers must be made by originating summons; and
(b) any other application in chambers must be made —
(i) if it is ex parte, by motion; or
(ii) in any other case, by summons.
[(2) deleted]
(3) An application in chambers shall state the orders that the applicant seeks and the grounds for the application.
(4) The Court may direct notice of a motion made ex parte to be served on any person the Court thinks fit. (underlining added)
…
9. Parties to confer before making application
(1) No order shall be made on an application in chambers unless the application was filed with a memorandum stating —
(a) that the parties have conferred to try to resolve the matters giving rise to the application; and
(b) the matters that remain in issue between the parties.
(2) The Court may waive the operation of subrule (1) in a case of urgency or for other good reason.
As can be seen, rule 3 explains that applications in chambers may be made in particular ways. If the application is to commence proceedings, it is to be brought by originating summons. Otherwise, such applications are to be brought by motion (where ex parte) or by summons.
Further, rule 1 sets out the business to be dealt with in chambers, which includes various interlocutory applications, such as applications for time to plead, for leave to amend, for discovery and inspection, as well as civil proceedings commencing by originating summons, the requirements for which are more fulsomely set out in O 58 RSC. The business to be conducted in chambers also includes any application that may be made to the Court or a judge under a written law of the State or a law of the Commonwealth, with some exceptions: O 59 r 1(1)(d) RSC.[24]
[24] This provision contains two exceptions, neither of which is presently relevant.
The defendant places reliance on this last mentioned provision.
The defendant submits that a proceeding to set aside a statutory demand brought by way of originating process under s 459G of the Corporations Act, having been issued pursuant to rule 2.2 of the Supreme Court (Corporations) (WA) Rules 2004 (Corporations Rules), is an 'application in chambers' which engages O 59 r 9(1) RSC.
The defendant points to the absence of any memorandum of conferral filed with the Application, and the absence of any request by the plaintiff seeking waiver of the conferral requirement. The defendant emphasises the statements in the Consolidated Practice Directions (CPD) which require a party to state within the memorandum the intention to seek waiver of conferral and briefly state the facts relied upon to support waiver: see CPD 4.3.2.

It is common ground that no memorandum of conferral was filed by the plaintiff before filing the Application (nor after filing), and there was in fact no conferral with the defendant or its solicitors.

Consideration of O 59 r 9(1) RSC

The evident purpose of O 59 r 9(1) RSC is to ensure that the parties resolve issues between themselves so far as is possible so that only matters really in dispute come before the Court, and when they do come before the Court, the parties appreciate the real issues in dispute: Deputy Commission of Taxation for Commonwealth of Australia v Robinswood Pty Ltd.[25]
[25] Deputy Commission of Taxation for Commonwealth of Australia v Robinswood Pty Ltd [2001] WASC 91 [12].
Contrary to the defendant's submission, applications filed in this Court pursuant to s 459G(1) of the Corporations Act are typically filed without any accompanying memorandum of conferral under O 59 r 9 RSC. This practice may be attributable to an understanding that the conferral requirement is applicable to interlocutory applications brought as contemplated by rule 3(1)(b)(ii) of O 59 RSC, rather than to circumstances in which substantive proceedings are commenced in chambers, such as by an originating summons as contemplated by O 59 r 3(1)(a) RSC or an originating process filed under the Corporations Rules.
Counsel for the defendant could not identify any authority in this Court in which this issue had been considered and I must confess the authorities on the subject were not readily identifiable. But the point has been examined.
In Devere Holdings Pty Ltd v Verge,[26] Murray J addressed the issue in the context of proceedings commenced by originating summons for removal of a caveat under s 138(2) of the Transfer of Land Ac 1893 (WA). His Honour accepted that the provisions of O 59 r 9 RSC may apply to such proceedings, particularly given the proceedings before him bore an interlocutory character.[27] Ultimately, his Honour waived compliance with the conferral requirement.
[26] Devere Holdings Pty Ltd v Verge [2006] WASC 297.
[27] Devere Holdings Pty Ltd v Verge [29] (Murray J).
More recently, Master Sanderson dealt with argument on the issue, in Preiner v Structrite Pty Ltd as trustee for the Zambia Trust.[28] That case concerned an application commenced by originating process for directions pursuant to s 90-15 of sch 2 of the Corporations Act. A preliminary point was raised as to whether the plaintiff ought to have complied with O 59 r 9 RSC before issuing the originating process.
[28] Preiner v Structrite Pty Ltd as trustee for the Zambia Trust [2019] WASC 367.
The Master concluded that the conferral requirement had no application but that, in any event, there had been sufficient conferral between the parties. The Master's reasons on the point are set out below:
[3]As a preliminary point during the course of the argument the defendant maintained the plaintiff should have complied with O 59 r 9 of the Rules of the Supreme Court 1971 (WA) (the Rules) before issuing the originating process. This point was argued with some vigour. At the conclusion of the argument I indicated I was not satisfied O 59 r 9 was applicable. Even if it was, I was satisfied there had been discussions between the parties which essentially satisfied the requirements of the Rules. I indicated to the parties I would provide reasons for that decision. These are those reasons.
…
[9]Counsel for the defendant filed detailed and comprehensive submissions dealing with this issue. Counsel referred to the procedure in the Federal Court which requires the filing of a 'genuine steps statement' pursuant to s 6 of the Civil Dispute Resolution Act 2011 (Cth). There is, of course, no such equivalent state legislation. Accordingly the decision of Riethmuller FM in Vaucluse Hospital Pty Ltd v Phillips[2006] FMCA 44 is of no relevance.
[10]Matters relating to corporations are commenced under the Supreme Court (Corporations) (WA) Rules 2004. Those Rules are silent on discussions which should take place before an originating process is issued. Once that process is issued then it is determined, first in accordance with the Corporations Rules, and second, in conformity with the Rules of the Supreme Court 1971 (WA). That means that if an interlocutory process is issued the requirements of O 59 r 9 must be observed. But there is nothing in the Corporations Rules which requires discussions prior to the issue of an originating process. It is an open question whether this court, or indeed a state government, could mandate a regime prior to issuing process under a federal statute. Be that as it may, there is nothing to require discussion between parties or indeed between solicitors prior to the issue of an originating process.
The defendant's contention is potentially one of some significance as a matter of practice and procedure. However, I do not consider I have had the benefit of thorough argument on the point of construction of the rule, and must express some reluctance at being asked to finally determine the point raised by the defendant on the basis of the arguments as presented. The defendant's contention raises, at least, the specific issues which are set out below at [83] to [95].
First, there is a question as to whether the terms of O 59 r 9 RSC apply to proceedings in this Court commenced under the Corporations Act or the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).
While the Corporations Rules apply to proceedings in this Court commenced under the Corporations Act or the ASIC Act, the general rules of this Court are not excluded, given the terms of rule 1.3(2)(a) of the Corporations Rules. Rule 1.3(2) of the Corporations Rules provides that:
(2) The other rules of the Court apply, to the extent that they are relevant and not inconsistent with these rules —
(a) to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these rules; and
(b) to a proceeding in the Court under the Cross‑Border Insolvency Act that is commenced on or after the commencement of Part 15A.
The language of rule 1.3(2) demands an assessment as to whether the general rules, including most particularly the Rules of the Supreme Court 1971 (WA), are 'relevant and not inconsistent' with the Corporations Rules. The latter rules include a provision as to the commencement of applications by originating and interlocutory process, and the forms for doing so, but include no requirement for conferral: Corporations Rules, rule 2.2. At least to some extent, then, the Corporations Rules supply the procedure for making an application 'required or permitted by the Corporations Act to be made to the Court': Corporations Rules, rule 2.2(1). The Corporations Rules also include a provision for service of process and supporting affidavits: Corporations Rules, rule 2.7.
It may be contended, and the defendant does so, that the provisions of O 59 RSC are relevant and not inconsistent with the Corporations Rules because O 59 RSC governs the procedure for applications in chambers generally, not merely applications 'required or permitted' by the federal statutes in question. Such general applications (including applications for discovery or to resolve pleadings issues) may, where appropriate, be brought in the course of proceedings issued under the Corporations Act. However, as will be explained, I need not express a concluded view on the question whether O 59 RSC has application to the present proceedings.
Second, assuming O 59 RSC has application, there is a question whether the reference to 'applications' throughout that provision should be taken to refer to both originating applications and applications of an interlocutory nature, particularly given the language of O 59 r 3 RSC.
The defendant submits that the reference to 'applications in chambers' in O 59 r 9(1) RSC is capable of encompassing application to commence proceedings by an originating instrument under a law of the Commonwealth, and not only interlocutory applications. I need not express a concluded view on the point, although I prefer the view that O 59 r 9(1) RSC applies only to interlocutory applications in chambers, given the evident purpose of the provision and the potential practical difficulties which may arise if the provision was held to apply before proceedings had been properly served and the jurisdiction of the Court has been invoked.
Third, although neither party raised any argument as to constitutional inconsistency between the existence and operation of the 'genuine steps' requirement at federal level under the CDR Act and the requirement for conferral under this Court's rules, it occurs to me this is an issue which may need to be confronted. I alluded to this issue at the first hearing of this matter.[29] Relatedly, neither party sought to invoke the principle that the federal Parliament, when investing a State court with federal jurisdiction, must take a State court as it finds it. Issues of this nature were mentioned in passing by Master Sanderson in Preiner v Structrite Pty Ltd as trustee for the Zambia Trust.
[29] ts 9.
The object of the CDR Act is to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted: CDR Act, s 3. There is authority to the effect that the CDR Act applies to applications brought under s 459G(1) of the Corporations Act: Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (No 2).[30] That was a decision of his Honour Justice Reeves in the Federal Court of Australia.
[30] Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (No 2) [2012] FCA 977 [11] (Reeves J) (Superior IP International). Since that decision was delivered, the legislation has not been amended to designate such proceedings as 'excluded proceedings' for the purposes of the CDR Act.
In Superior IP International, Reeves J observed that compliance with the regime was an important step in proceedings, imposing an obligation on practitioners for good reason, given the objects of the legislation. The legislative purpose is to encourage resolution of disputes before the significant costs of the litigation are incurred.
In that case, in the context of an application under s 459G(1), Reeves J notably described the requirement to comply with the genuine steps regime as 'somewhat unrealistic and incongruous' at the stage of the statutory demand process where a party was seeking to apply to set aside the demand, particularly given the mandatory 21-day requirement. With respect, I agree with those observations. Indeed, his Honour's observations might equally apply to the grafting of a conferral requirement onto s 459G, such as is found in O 59 r 9(1) RSC.
The defendant did not expressly contend the CDR Act regime had application in any respect in the present circumstances, or that there had been non-compliance with that regime. I observe that a failure to file a genuine steps statement does not, in any event, invalidate an application: s 10, CDR Act. That said, the Court may have regard to the absence of such a statement or genuine steps in certain respects, including as to costs: s 11 and s 12, CDR Act.
The interaction between the CDR Act and O 59 r 9 RSC, in the context of applications to set aside statutory demands under the Corporations Act, is a matter on which I need not express a view.
Fourth, assuming O 59 RSC has application and applies to the commencement of proceedings under the Corporations Act, there is a need to consider whether the requirements ought be waived in this instance pursuant to the discretion in O 59 r 9(2) RSC.
Fortunately, the contention raised by the defendant may be resolved by confining my analysis to this fourth point, without expressing any concluded views on the issues identified at [83] to [94] above.

The Court's discretion to waive under O 59 r 9(2) RSC

It is necessary to recall that the conferral regime includes a discretion to permit waiver: O 59 r 9(2) RSC. The conferral requirement may be waived where there is urgency or for other good reason.
In this regard, the legislative regime which controls the bringing of applications to set aside statutory demands assumes particular significance. Indeed, it is a significant feature of the applicable legislative regime that a party is obliged to bring any proceedings to set aside a statutory demand under s 459G within a strict and immutable time period.[31]
[31] David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265, 277 (Gummow J) (David Grant).
This feature of the legislation will invariably supply a basis for the Court to waive the conferral requirement in the exercise of its discretion, if the absence of conferral proves necessary to permit the applicant to commence the proceedings within time.
As to the exercise of the discretion, I refer to the approach adopted by the Court of Appeal in Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd.[32] In the present circumstances, applying the type of analysis favoured by the Court of Appeal, I consider that, given the course the proceedings have followed, it is highly unlikely conferral would have achieved any resolution of the issues, although I accept it may have served to narrow or clarify the issues. Conferral would certainly not have avoided the filing of the Application, nor the two hearings which were held. In these circumstances, it would not be a reasonable exercise of the discretion to dismiss the plaintiff's Application on the basis of the absence of conferral or the failure to file a memorandum of conferral.
[32] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [59] – [60] (Quinlan CJ, Beech and Vaughan JJA).
So, even if I had concluded that the requirements of O 59 r 9(1) RSC were engaged in this case, I would in any event have waived the conferral requirement.
The defendant's threshold point based upon non-compliance with O 59 r 9(1) RSC can accordingly be put to one side, at least on the basis that, if the regime applies to the commencement of this proceeding (being a proceeding commenced under the Corporations Act), it should be waived by the Court in the present circumstances. On this basis, I will make an order that the requirement for conferral be waived.

G. Disposition of issue 2 - filing further affidavits as to service

Background

Rather belatedly, deep into the first hearing of the Application,[33] the defendant raised a contention that the Application had been filed outside the 21-day time period imposed by s 459G(2) of the Corporations Act. On its face, there appeared to be merit in the defendant's contention, given the Statutory Demand is dated 24 July 2024 and the Application was filed on 15 August 2024, which is a period of 22 days. As noted above, the statutory time period cannot be extended.[34]
[33] ts 46.
[34] David Grant (270). See, recently in this Court, Flintel Pty Ltd v Flexible Telecommunications Pty Ltd [2024] WASC 63 [34] - [ 35] (Master Russell) and the authorities cited therein.
However, as I observed at the hearing, the defendant's jurisdictional contention was not supported by any evidence, whether adduced by the defendant or by the plaintiff, which demonstrated the Statutory Demand had in fact been served on 24 July 2024.[35] This was somewhat curious given that evidence as to the date of service of the Statutory Demand, which was signed by the defendant's solicitor on behalf of the defendant, could readily have been adduced by the defendant or its solicitor in support of this jurisdictional contention. One might have thought that a party seeking to agitate a jurisdictional point who had the ability to adduce evidence in support thereof would have led evidence to make good the point.
[35] ts 48 - 49.
That was not the approach favoured by the defendant.
In essence, the defendant's position was that the Court was duty bound to consider the jurisdictional point, that is whether the 21-day requirement in s 459G was satisfied. Absent evidence as to service of the Statutory Demand, the defendant's submission was that the Court could not be satisfied the plaintiff made the application in time, and bearing in mind the plaintiff bears the burden of proof to establish this, the application should be dismissed given the only available evidence shows the Statutory Demand is dated 24 July 2024.[36]
[36] ts 49 - 51.
As will be seen, the defendant's argument has an element of sophistry about it.
The plaintiff's counsel, having had no prior notice of the argument, sought the opportunity to file further affidavit evidence to demonstrate matters of service. The plaintiff sought the opportunity to demonstrate that the time period in s 459G(2) had been satisfied having regard to the actual date of service of the Statutory Demand on the plaintiff and the date on which the originating process and accompanying affidavit were served on the defendant. That is, the plaintiff maintained that, as a matter of fact, the jurisdictional objection raised by the defendant was without merit.

The Graywinter decision

The defendant resisted the filing of further affidavit evidence by the plaintiff, relying on the well-established decision of Sundberg J in Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund.[37]
[37] Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund [1996] FCA 822; (1996) 70 FCR 452 (Graywinter). See, in the Full Court in this State, Energy Equity Corporation Ltd v Sinedie Pty Ltd [2001] WASCA 419; (2001) 166 FLR 179 [29] (Wallwork J, with Steytler J (as his Honour then was) and Olsson AUJ agreeing), which endorsed Graywinter.
Given the point was raised without notice, I considered it was in the interests of justice for the matter to be adjourned to a second hearing for the completion of argument, and I allowed the parties an opportunity to agree a procedural regime for the filing of additional submissions on the issue. The parties were unable to agree a suitable regime and accordingly the Court fashioned orders on 9 December 2024 to require further submissions to be filed by the parties ahead of the resumed hearing.[38] The parties duly filed those submissions. I refer to the plaintiff's additional outline dated 12 December 2024, and the defendant's additional outline dated 16 December 2024.
[38] I refer to the email from the Court to the parties sent on 9 December 2024, explaining the orders and drawing the parties attention to the Court's concern that it was unclear at that stage how the Graywinter decision precluded the filing of affidavits as to service matters, which were not directed at adducing evidence to assert a fresh ground to set aside the Statutory Demand.
It is unnecessary to rehearse all of the arguments raised by the parties on the issue. The fundamental point to be made is that the defendant's argument stretches the Graywinter principle well beyond breaking point in my opinion.
In Graywinter, the Court held that if an affidavit filed with the application to set aside the statutory demand does not satisfy the minimum requirements of s 459G(3) of the Corporations Act, the Court will not have jurisdiction to set aside the demand. The minimum requirements as described by Sundberg J, and later explained by the Victorian Court of Appeal in Sceam Constructions Pty Ltd v Clyne,[39] are:
(a) the affidavit 'must, as a minimum, contain a statement of the material facts on which the applicant intends to rely to show a genuine dispute';[40]
(b) the affidavit 'may read like a pleading' and need not detail, in admissible form, all the evidence that supports the contention of a genuine dispute;^[41]and
(c) neither a mere assertion that there is a genuine dispute nor a bare claim that the debt is disputed is sufficient.[42]
[39] Sceam Constructions Pty Ltd v Clyne [2021] VSCA 270 [12] (Ferguson CJ, Sifris and Walker JJA) (Sceam Constructions).
[40] Graywinter (459).
[41] Graywinter (459).
[42] Graywinter (459).

The accompanying affidavit required to be filed by s 459G(2) of the Corporations Act is used to 'fairly alert the claimant to the nature of the case the company will seek to make in seeking to have the statutory demand set aside'.[43] Further, 'the content of the affidavit must convey, even if it be by necessary inference, a clear delineation of the area of controversy, so that it is identifiable with one or more of the grounds in ss 459H and 459J'.[44] Further still, 'this process of delineation may not be extended after the statutory period, although it is open to the applicant to supplement the supporting affidavit by way of additional evidence relevant to the area of controversy within the period'.[45]
[43] Elm Financial Services Pty Ltd v MacDougal [2004] NSWSC 560 [7] (Barrett J) (Elm Financial).
[44] Elm Financial [7].
[45] Sceam Constructions [15], citing Barrett J in Elm Financial.
The principle emerging from Graywinter does not address whether a plaintiff may be permitted to file affidavit evidence after the apparent expiry of the 21-day time period, to demonstrate compliance with a procedural issue such as the time for service of the statutory demand. The focus of the analysis in Graywinter was as to the delineation of the grounds the plaintiff was seeking to raise. No question arises in this respect on the present Application.
I accept it would be possible for a plaintiff to include evidence of the service of the Statutory Demand within the initial accompanying affidavit filed with the originating process, and indeed such evidence should ordinarily be included. A plaintiff will also be able to readily file affidavit evidence demonstrating service of the proceedings on the defendant (although necessarily this cannot be done within the accompanying affidavit itself).[46] But the failure to address either of these factual issues within the 21-day time period does not preclude the later filing of affidavit evidence, where that is needed in order to allow a party to address whether the proceeding itself was filed within the jurisdictional time period. The defendant's contention is fundamentally circular in nature, is not supported by the Graywinter line of authorities, and should be rejected.
[46] Evidence as to these matters can, of course, also be adduced by the defendant should it wish to assert a failure to comply with the 21 day time limit.
At the hearing on 19 December 2024, having heard the argument on the issue, I indicated to the parties I would allow the plaintiff the opportunity to file a further affidavit on the service issues. The defendant did not seek an opportunity to file any responsive evidence, revealing the somewhat arid nature of the argument. I will turn next to consider the substance of the additional affidavits filed by the plaintiff.

Evidence as to service

The Court received two further affidavits from the plaintiff, which were filed in accordance with the leave granted on 19 December 2024. I refer to the affidavit of Ms Narelle Elaine Pugh sworn 10 January 2025 (the Pugh Affidavit) and the affidavit of Mr Poliwka sworn 9 January 2025 (the Poliwka Affidavit). I am satisfied on the basis of these further affidavits that:
(a)the Statutory Demand which is dated Wednesday, 24 July 2024 was in fact served on the plaintiff's registered office on Friday, 26 July 2024;[47]
(b)the originating process was filed by the plaintiff in this Court on Thursday, 15 August 2024;[48] and
(c)a copy of the originating process and a copy of the supporting affidavit of Ms Savietto sworn 15 August 2024 were served on the registered office of the defendant on Friday, 16 August 2024.[49]
[47] Pugh Affidavit [4] – [5].
[48] Poliwka Affidavit [4(a)].
[49] Poliwka Affidavit [5].
The requirement to make the application 'within' 21-days 'after the demand is so served' necessitates, in the calculation of time, the exclusion of the day of service of the demand and allows the application to the Court to be filed and served on the 21^st day. I rely in this regard on the analysis of Ward CJ in Equity (as her Honour then was) in Verimark Pty Ltd v Passiontree Velvet Pty Ltd,[50] and her Honour's references to s 36(1) of the Acts Interpretation Act 1901 (Cth) and s 105 of the Corporations Act. I conclude that the Application in this case was filed and served on the 21^st day.
[50] Verimark Pty Ltd v Passiontree Velvet Pty Ltd [2019] NSWSC 455 [16] - [33].
I am accordingly satisfied the Application was made in accordance with the prescribed 21-day period and the jurisdictional argument raised by the defendant should be rejected.

H. Disposition of issue 3 - genuine dispute

I turn next to the first substantive ground advanced by the plaintiff to set aside the Statutory Demand.

Overview

As will already be apparent from the factual background set out earlier in these reasons, this ground raises several contentious matters, both legal and factual. Ultimately, the plaintiff asserts there is a genuine dispute as to whether the defendant has a present entitlement to payment or any entitlement at all. The plaintiff maintains the termination of the contracts was valid and it has received quotations to complete the works on these four job sites from the new contractor, Automated Living. The plaintiff maintains it has issued purchase orders to the new contractor in response to its quotations, which total an amount exceeding the Statutory Demand.
The payment claims, which required payment of the total amount of $40,549.30, and the four job sites in question, are detailed in Attachment A to these reasons.
The first job site, for example, is the Westminster property. The defendant's claim in respect of the Westminster job site is for the sum of $4,832.20, based on two invoices issued on 19 March 2024.[51] The contract identifying number used by the plaintiff for this job is A2203. As shown in Attachment A, the quote received from Automated Living was in the amount of $1,094.50 and the sum of $1,094.50 has been paid to Automated Living by the plaintiff.
[51] First Savietto Affidavit, Attachment DJS-2, pages 12 - 14.
The tax invoices for the Westminster job contain very little detail.
The first tax invoice includes an 'order' amount of $12,910 which is said to correspond with the purchase order issued by the plaintiff on 16 July 2022. I refer to Purchase Order No A2203/600 which appears to have been issued by the plaintiff, and records the amount of $12,910.[52] The purchase order refers to a quote from the defendant 'as per plans provided dated 11.7.2022'. The defendant's two page quote is undated, but records a range of detailed work items, with a total of $12,910 (excluding GST).
[52] First Savietto Affidavit, Attachment DJS-7, page 73.
The first tax invoice includes several deductions to account for payments made by the plaintiff, to bring the invoice amount down to $4,686.
The second tax invoice merely states 'Variation'. It is for the sum of $146.30. This amount corresponds with the second purchase order issued by the plaintiff relating to the Westminster job site, dated 9 November 2022.[53]
[53] First Savietto Affidavit, Attachment DJS-7, page 74.
Mr Sheehan has deposed that the claims made in respect of the Westminster job site are claims for progress payments for work undertaken by the defendant.[54] The contract upon which Mr Sheehan relies to make the claim is formed by the defendant's quote and the two purchase orders issued by the plaintiff.[55] The plaintiff accepts that a contract was formed through the exchange of the quotation and the purchase orders.[56]

Termination of the contracts by the plaintiff

[54] Sheehan Affidavit [6(a)].

[55] Sheehan Affidavit [6(a)].

[56] First Savietto Affidavit [10(b)].

On the face of the documents, I can be satisfied there was a contract formed between the parties in respect of the Westminster job site, for the defendant to undertake the work set out in the quotation it issued, for which it would be paid by the plaintiff. Adopting a similar analysis, I can be satisfied that contracts were also formed for the other three job sites identified in Attachment A.
Without finally deciding the point, I am satisfied the contractual terms including the price fixing clause identified by the plaintiff, on its face, although very general in terms, arguably has the effect contended for by the plaintiff. The effect of this clause is essentially at the heart of the dispute between these parties. The arguable operation of this clause provides a foundation for the plaintiff's contention that the defendant was required to maintain its pricing structure throughout each project's life. The insistence by the defendant that it would increase its prices thus provides an arguable basis for the valid termination of each contract by the plaintiff (in that the plaintiff treated the defendant's termination of the contracts as unlawful and as a repudiation of the contracts).
Following this line of argument through, I am satisfied there is an arguable basis, and certainly an issue requiring investigation, that the plaintiff validly terminated the contracts and the defendant was exposed to a claim for damages in this regard. It is at this point in the analysis where the detail of the evidence relied upon by the parties will be critical to the ultimate determination in due course. As matters stand, the Court is unable to conduct a merits-based review of the evidence to form ultimate conclusions of fact.

Failure to issue notices of dispute

The defendant asserts the failure by the plaintiff to issue notices of dispute in accordance with the CCA precludes the plaintiff from asserting there is a dispute. I have addressed this point earlier in the reasons. I do not accept the absence of a notice of dispute has the effect or consequence the defendant asserts.

Adequacy of the evidence

As I have earlier noted, the task of the Court is not to resolve the dispute between the parties or undertake a trial-like assessment of the evidence. Nonetheless, the plaintiff must establish there is a plausible contention requiring investigation.
The defendant rejects the submission that there is a genuine dispute on the facts. The defendant refers to the 'evidence' provided by the plaintiff as being 'so equivocal and lacking in precision that it does not merit further investigation as to its truth'.[57]
[57] DS [18].
The defendant's critique of the approach adopted by the plaintiff in asserting a genuine dispute, and its criticisms of the adequacy of the plaintiff's evidence, have some force. In particular, I agree that the plaintiff's evidence is very general in nature. I also agree that it does not necessarily follow, merely because Automated Living has completed some work on the job site, which is within the defendant's former scope of work, that the work undertaken by the defendant was not complete or was improperly performed.
It is necessary for the plaintiff to do more than point to the engagement of a new contractor and broadly refer to the fact additional work has been undertaken by the contractor.
That said, the plaintiff also points to the very general nature of the invoices issued by the defendant which are said to underpin the payment claims and the Statutory Demand itself. There is a degree of generality on both sides of the argument.
As to the detail which is before the Court, and focusing on the Westminster job site for now, Mr Savietto raises the following issues as to the demand for payment made by the defendant in respect of the Westminster site:
(a)that the defendant's invoice contains deductions which are not itemised or explained and which appear to be estimates in round numbers;[58]
(b)that the work at the site was not complete or satisfactory, on the basis that the 'data points, TV points, and wireless access points were incomplete';[59]
(c)following the termination of the contract by the defendant, it was necessary for the plaintiff to engage a new contractor, Automated Living, to complete the work on the job;[60]
(d)the contractor has quoted a price of $1,094.50 to undertake work on the site, as set out in the written quotation issued on 30 April 2024, with the quotation referring to 149A Ravenswood Drive;[61]
(e)that the plaintiff has paid the sum of $1,094.50 to Automated Living;[62]
(f)that Mr Savietto believes, having regard to the invoices issued by Automated Living, it was necessary for that contractor 'to perform such work in completion or rectification of the work that the Defendant has contracted to perform' pursuant to the agreement between the parties;[63] and
(g)that the totality of the work incorrectly performed by the defendant will only be known once Automated Living has completed the work.[64]
[58] First Savietto Affidavit [11(c)]. This point does not go anywhere though. These amounts simply represent part payments.
[59] First Savietto Affidavit [12(b)].
[60] First Savietto Affidavit [15]
[61] First Savietto Affidavit, Attachment DJS-12, page 120.
[62] Second Savietto Affidavit [4] and Attachment DJS-19, page 3, which refers to 149A Ravenswood Drive, Westminster.
[63] Second Savietto Affidavit [5].
[64] First Savietto Affidavit [13].
There is a further point made by the defendant which emphasises that the Statutory Demand is based on progress claims rather than invoices for final payment. The defendant says it can be assumed that the works undertaken by the defendant on the job site were not complete. This point is raised to defuse the broad criticism levelled by the plaintiff that the defendant had failed to complete the works it was contractually obliged to perform, and has claimed for work not yet completed.
I cannot accept this proposition at a factual level, at least not in relation to the Westminster job site. I say this because it appears that the tax invoices issued by the defendant are for the balance of the amount quoted, which presupposes that the defendant had completed all of the works set out in the quotation and the corresponding purchase order. Indeed, counsel for the defendant accepted that the Westminster job site had a 'higher degree of completion' than the other sites.[65]
[65] ts 21.
A final point is made by the defendant as to the misdescription of the job site in the plaintiff's evidence. It is noted by the defendant that the Automated Living quote and corresponding purchase order and invoice refer to 149A Ravenswood Drive, not 197A Ravenswood Drive as appears in the payment claim. The defendant submits the evidence as to this other property is therefore not relevant.
However, I note Mr Savietto refers in his affidavit to the correct address (at [10(b)]), and uses this correct address throughout his two affidavits as the 'Westminster Site'. Further, the defendant's quotation and the plaintiff's purchase order refer to 149A Ravenswood Drive.[66] Importantly, as well, the same contract or job number is used across the various documents, being A2203/600, which tends to suggest the parties and Automated Living are also speaking about the same site. The same analysis provides an answer, at least at this stage of the dispute, to the defendant's submission concerning the misdescriptions in relation to the Maylands and Willeton job sites.
[66] The address stated in the quotation and purchase order documents is 149A Ravenswood Drive in Westminster. The address identified in the tax invoices issued by the defendant which are said to be support the payment claim is 197A Ravenswood Drive in Westminster.
Taking these matters together, it is more than arguable that the documents and claims all relate to the same property, which has been misdescribed. At this stage, I therefore do not accept the defendant's submission that the difference in the descriptions is a threshold reason to reject the plaintiff's contention there is a genuine dispute with respect to the claim for the Westminster or other sites.
More broadly, doing the best I can at present on the information available, and recognising that the plaintiff's evidence is somewhat general in nature, I am satisfied that there is a plausible contention requiring further investigation in relation to the payment claim for the Westminster job site. The essential question is whether the defendant has a valid claim for payment of progress claims on the site in circumstances in which the contract has been terminated, there are issues raised as to the standard or quality of the work undertaken by the defendant, and where the plaintiff has engaged a replacement contractor to perform work which may overlap with the work said to have been undertaken by the defendant. On this basis, I am satisfied there is a genuine dispute as to the amount demanded by the defendant in the Statutory Demand.
Adopting a similar analysis in relation to the Maylands job site, I reach the same conclusion. The progress claim for this site is based on a single invoice, in the amount of $15,400. The invoice issued by the defendant merely states 'Progress Calim [sic] - Fit Off'.[67] Mr Savietto deposes as to various works which were incomplete or unsatisfactory at this site.[68] Mr Savietto deposes to the quote received from Automated Living to attend to completion or rectification of the work in question, which is in the sum of $29,398.60, of which $23,410.19 has already been paid.[69]
[67] First Savietto Affidavit, Attachment DJS-2, pg 16.
[68] First Savietto Affidavit [12(c)].
[69] Second Savietto Affidavit [4] and [5], Attachment DJS-20.
Similarly, I am satisfied there is also a genuine dispute in relation to the Willeton job site, having regard to the matters deposed to by Mr Savietto.
The Nedlands job site is the subject of more detailed evidence, insofar as the defendant's invoices are concerned,[70] and in at least some of the quotes issued by Automated Living[71] to undertake completion or rectification work (as deposed to by Mr Savietto). A review of this evidence, which again is admittedly at a high level of generality, leads me to conclude there are several issues requiring investigation as to the work undertaken by the defendant, which is the subject of its invoices and which may well also be (but I cannot ultimately conclude) the subject of rectification works which have been undertaken by Automated Living.
[70] First Savietto Affidavit, Attachment DJS-2, pages 18 - 27.
[71] Second Savietto Affidavit [4] and [5], Attachment DJS-22.
In these circumstances, the contention of the plaintiff is made out, in my view, that there are genuine disputes which exist as to the entitlement of the defendant to claim progress claims under each contract for the four respective job sites, for the purposes of s 459H(1)(a) of the Corporations Act.
That is, for the purposes of s 459H(2), and pursuant to par (a) of the definition of 'admitted amount' in s 459H(5), the substantiated amount of the Statutory Demand is nil (ignoring the offsetting claim for now). That is sufficient to dispose of the Application in favour of the plaintiff and to set aside the Statutory Demand, pursuant to s 459H(3).
I will however proceed to address the contention raised by the plaintiff that it has offsetting claims which exceed the amount claimed in the Statutory Demand.

Disposition of issue 4 - offsetting claim

There is a further basis upon which the plaintiff seeks to set aside the Statutory Demand, namely that it maintains it has offsetting claims which exceed the amount demanded, arising from matters separate to the payment claims.[72]
[72] PS [20].
The offsetting claims arise from several contracts said to be comprised of the quotations issued by the defendant and the plaintiff's purchase orders for job sites other than those mentioned at [42] above.
As earlier noted, a genuine offsetting claim in essence means a claim on a cause of action advanced in good faith, for an amount claimed in good faith. Further, an amount will be claimed in good faith where it is arguable on the basis of facts asserted with sufficient particularity such that the Court is able to determine that the claim is not fanciful.

In Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd,[73] Pullin JA accepted that the recipient of a statutory demand may successfully apply to set aside a demand based on an adjudicator's determination or a consequent judgment if it has offsetting claims arising from transactions separate from those that give rise to a judgment debt based upon an adjudication under the CCA. His Honour referred to Demir Pty Ltd v Graf Plumbing Pty Ltd[74] in support of that proposition. The plaintiff places reliance on both authorities in the current context, although this is not a case in which there has been any adjudication or judgment.
[73] Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [68] (Pullin JA, Newnes and Murphy JJA agreeing).
[74] Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553 [17] (Campbell J).
The plaintiff maintains the price for the work to be performed under the above mentioned contracts was fixed, and the defendant's refusal to perform the work under the contracts at the fixed price was a repudiation.[75] The defendant posits a different legal view in this regard.[76]
[75] PS [22].
[76] PS [23].
In the First Savietto Affidavit, Mr Savietto has explained the basis of the offsetting claims.[77] Mr Savietto refers to the work at five other sites in Maylands, North Coogee, Clarkson, Waterford and Sorrento. The affidavit attaches the quotations which were received from the defendant in respect of those sites, which he says were accepted by the plaintiff and led to the defendant commencing work on the sites. It appears the defendant refused to perform the agreed works without a price increase, which Mr Savietto says is contrary to the quotations which make no provisions for increases in price.
[77] First Savietto Affidavit [20] - [29].
The plaintiff terminated the services of the defendant on these sites as a result, according to Mr Savietto, and intends to pursue claims against the defendant based on the alleged repudiation by the defendant. The plaintiff proposes to claim the difference between the amount the plaintiff will now need to pay Automated Living to undertake the work and the amount it agreed to pay the defendant to do the work.
The overall aggregate amount of the offsetting claims is at least $59,179.44 according to Mr Savietto, and maybe more with the inclusion of the difference in quotations for the four sites.
The defendant submits that the alleged offsetting claims are 'fictitious or merely colourable' and as such no offsetting claim should be accepted.[78] I do not accept that characterisation is accurate, on the material available.
[78] DS [31].
As I have already observed in these reasons, the plaintiff's contention as to the effect of the price fixing clause in the contracts which were formed is at least arguable, and that clause is not vague or meaningless or invalid by operation of legal principle or statutory provision. Any final assessment of such attacks on the clause cannot be undertaken in these proceedings.
As the plaintiff submits,[79] having established there is a plausible contention that the defendant has breached the contracts, it is necessary for the plaintiff to establish the quantum of the offsetting claims and whether it exceeds the amount claimed in the Statutory Demand. The plaintiff correctly notes that the evidence in support in this regard need not be set out in meticulous detail, relaying upon the observations of the Court of Appeal in H'var Steel Services at [37].
[79] PS [25].
In developing its position, the plaintiff submits it is uncontroversial that the contractual measure of damages is such as to put the plaintiff in the same position as if the defendant had performed those contracts and that it is open for the plaintiff to engage a third party and to claim costs for certain work.[80] I accept that proposition. The plaintiff outlines the types of costs it may be entitled to recover from the defendant, including the full cost to rectify defective work for which the defendant has been paid, the difference between the contract price and the third-party contractor's price for the contracted work the defendant has allegedly not performed or has refused to perform, and full reimbursement from the defendant for invoiced work not performed at all. Presently, the offsetting claim is not put on all of these bases.
[80] PS [26].
The plaintiff submits that it has an offsetting claim in the amount of $59,179.44 in relation to the five job sites detailed in Attachment B to these reasons. This amount is calculated by comparing the accepted quotations provided by the defendant for these sites against the quotations provided by Automated Living.[81] Having regard to the submissions of both parties, I have set out the difference in column F of Attachment B. The difference is $71,061.46, at least on the Court's calculations.
[81] I refer in this regard to Attachment DJS-18 to the First Savietto Affidavit which provides a comparison and analysis of the defendant's quotes and the quotes supplied by Automated Living.
On either amount, the offsetting claim exceeds the amount claimed in the Statutory Demand, which is $40,549.30 (if the genuine disputes are put to one side for now).
By way of further explanation, the plaintiff submits (and I accept) that this comparison affords the Court the ability to make a reasonable assessment or estimate of the plaintiff's claim in that:[82]
(a)the analysis compares the amount the defendant agreed to charge compared to the current value chargeable by an independent third-party electrician and therefore is consistent with the defendant's contention the cost of such work has increased;
(b)the defendant did not include any amounts in the Statutory Demand for the five job sites (being the reason for segregating jobs in this way) and, as such, it is submitted those jobs had not reached a sufficient level of progress; and
(c)by comparing the invoices issued by the new electrician in respect of the four job sites which are the subject of the Statutory Demand it appears that where the defendant had invoiced a job there was significant work needing to be performed by an electrician to bring a job to completion.
[82] PS [28].
Additionally, the plaintiff submits that the sum of $59,720.42 which is said by the plaintiff to be the subject of the genuine dispute for the four job sites in Attachment A (see column G), can be aggregated as part of the total offsetting claim. The aggregate of these claims is $130,781.88, if the above figure of $71,061.46 is employed (and somewhat less - $118,899.86 - if the initial figure used by the plaintiff is relied upon).[83]
[83] PS [29].
I do not need to go that far for the purposes of the Application, however.
It is sufficient that I say I am satisfied on the evidence, to the standard required, that the plaintiff has demonstrated it has an offsetting claim (or offsetting claims) to the amount of $71,061.46 in relation to the five job sites detailed in Attachment B, which exceeds the amount of the Statutory Demand even if I were to accept the amount claim in that demand as admitted or substantiated, which I do not. Alternatively, on the plaintiff's calculation, the offsetting claim (or offsetting claims) amounts to $59,179.44, which also exceeds the amount claimed in the Statutory Demand.
Having regard to s 459H(2) of the Corporations Act, I can say that I am satisfied the substantiated amount of the Statutory Demand is less than zero, assuming the plaintiff has not made good the genuine dispute contentions. In these circumstances, the Application to set aside the Statutory Demand pursuant to s 459H(1)(b) of the Corporations Act should be granted, as required by s 459H(3).

J. Conclusion and orders

For the foregoing reasons, I am satisfied (to the standard required) as to the validity of the plaintiff's contentions that it has genuine disputes with the full amounts claimed in the Statutory Demand, and I am similarly satisfied as to the offsetting claim (or offsetting claims) asserted by the plaintiff. When taken together for the purposes of s 459H(2) of the Corporations Act, it follows that the substantiated amount of the Statutory Demand is less than zero (and thus less than the statutory minimum).
Accordingly, I must order pursuant to s 459H(3) of the Corporations Act that the Statutory Demand be set aside.
I will hear from the parties on the question of costs.

ATTACHMENT A
Summary of the claims the subject of the Statutory Demand

A	B	C	D	E	F	G
NO	SITE	ORDER NUMBERS	PAYMENT CLAIM AMOUNT	INDIVIDUAL TAX INVOICES	AUTOMATED LIVING QUOTES	AMOUNT PAID BY PLAINTIFF TO AUTOMATED LIVING
1	Lot 1, #197A Ravenswood Drive, Westminster	A2203/600 A2203/600.4	$4,832.30	$4,686 $146.30	$1,094.50	$1,094.50
2	Lot 1, Caledonian Avenue, Maylands	A2103/600	$15,400	$15,400	$29,398.60	$23,410.19
3	2 Thomas Street, Nedlands	A2102/600.11 A2102/600.3 A2012B/600.11 A2102B/600.3 A2102C/600.3 A2102D/600.3 A2102/600.11 A2102A A2102B A2102	$18,282	$266.40 $2,076.80 $224.40 $646.80 $646.80 $646.80 $310.20 $4,515.50 $3,608 $5,338.30	$24,057	$24,827
4	Lot 2, #60 Pinetree Gully Road (Burrendah Boulevarde), Willetton	A2115/600	$2,035	$2,035	$13,084.50	$10,388.73
TOTAL	$40,549.30	$67,634.60	$59,720.42

NOTE:

The details in Columns A to E are drawn from the payment claims which are attached to the Statutory Demand, and the individual invoices which are then attached to each of the four payment claims.
The details in Columns F and G are drawn from Attachment DJS-17 to the First Savietto Affidavit and Attachment DJS-19 to the Second Savietto Affidavit.

ATTACHMENT B
Summary of the Offsetting Claims

A	B	C	D	E	F
NO	SITE	ORDER NUMBERS	DEFENDANT'S QUOTES	AUTOMATED LIVING QUOTES	DIFFERENCE (Column E minus D)
1	Units 1, 2 and 3 /7 Margaret St, Maylands	A2007	$26,730.00[84]	$42,044.80[85]	$15,314.80
2	34 to 42 Surada Street, North Coogee	A2112	$78,598.34[86]	$112,662.00[87]	$34,063.66
3	6 to 18 The Straits, Clarkson	A2037	$87,929.10[88]	$105,833.60[89]	$17,904.50
4	67 Cygnus Parade, Waterford	A2291	$24,035.00[90]	$25,168.00[91]	$1,133.00
5	79a Marine Terrace, Sorrento	A2206	$15,317.50[92]	$17,963.00[93]	$2,645.50
TOTAL	$232,609.94	$303,671.40	$71,061.46

[84] First Savietto Affidavit, Attachment DJS-16, pages 202, 203 and 204, but not page 205 (which appears to be referred to by the plaintiff in error).

[85] First Savietto Affidavit, Attachment DJS-17, pages 240 - 248.

[86] First Savietto Affidavit, Attachment DJS-16, page 206 - 207 and 208 (email quotation only).

[87] First Savietto Affidavit, Attachment DJS-17, pages 249 - 254, 258 - 266.

[88] First Savietto Affidavit, Attachment DJS-16, page 193 - 199 and Attachment DJS-18.

[89] First Savietto Affidavit, Attachment DJS-17, pages 272 - 295.

[90] First Savietto Affidavit, Attachment DJS-16, page 200 - 201.

[91] First Savietto Affidavit, Attachment DJS-17, pages 231 -233.

[92] First Savietto Affidavit, Attachment DJS-16, page 191 - 192.

[93] First Savietto Affidavit, Attachment DJS-17, pages 255 - 256.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IR
Associate to the Hon Justice Lundberg
23 JANUARY 2025