Two Box Pty Ltd v Jadd Projects Pty Ltd - [2010] WASC 258

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TWO BOX PTY LTD -v- JADD PROJECTS PTY LTD [2010] WASC 258

CORAM: ACTING MASTER CHAPMAN

HEARD: 5 AUGUST 2010

DELIVERED : 24 SEPTEMBER 2010

FILE NO/S: COR 66 of 2010

BETWEEN: TWO BOX PTY LTD
Plaintiff
AND
JADD PROJECTS PTY LTD
Defendant

Catchwords:

Corporations - Application to set aside statutory demand - Genuine dispute

Legislation:

Nil

Result:

Statutory demand set aside

Category: B

Representation:

Counsel:

Plaintiff: Mr P G McGowan
Defendant: Mr M D Howard SC

Solicitors:

Plaintiff: Metaxas & Hager
Defendant: Hotchkin Hanly Lawyers

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

Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85

ACTING MASTER CHAPMAN:

Application

The plaintiff, by way of originating process filed on 7 May 2010, seeks that the statutory demand issued by the defendant dated 22 April 2010 be set aside as there is a genuine dispute about the debt.

Affidavits

At the outset counsel for the defendant took objection to parts of two affidavits of Mr Jean‑Mic Du Buisson Perrine (Mr Perrine) sworn on 7 May 2010 and 6 July 2010, respectively.

Mr Perrine's affidavit of 7 May 2010

Paragraph 29

When read in context I consider this is adequate.

Paragraph 31

In my view, when taken in context, the evidence there is an expectation additional work will be required which will add to the cost can be given. The figure of $76,700 is only an estimate and accordingly will be given the weight appropriate to an estimate.

Paragraphs 34 and 35

I think the paragraphs make it clear the final payment certificate has not been issued and consider if the words 'due under' were deleted from the last line it would be in an acceptable form.

Paragraph 42

I accept that it is not claimed a final assessment has been made but the deponent is the superintendent and had advised of his assessment based on the information to hand. I consider this is acceptable.

Mr Perrine's affidavit of 6 July 2010

Paragraph 5.4

The objection to this paragraph is that the draft final certificate is not annexed. Counsel for the plaintiff submits the document is actually annexure JMP18 of Mr Perrine's affidavit sworn on 7 May 2010. I must say that is not apparent and I would uphold the objection.

Paragraphs 10.2 and 10.3

I agree the Contract speaks for itself but do not see the need to strike out these paragraphs.

Paragraphs 12.7, 12.9 and 12.10

Given the context in which these paragraphs occur I would not strike them out.

Paragraph 23

I would strike out pars 23.2 and 23.3.

Background

The statutory demand is annexure JMP19 to the affidavit of Mr Perrine sworn on 14 July 2010. It is for a debt of $2 million and is said to be monies owing for unpaid building works pursuant to:
1.1an AS4000 building contract between the creditor and the debtor company dated 18 September 2006 ('the Contract');
1.2a deed of agreement between the creditor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] WASC 258
Decision Date: 24 SEPTEMBER 2010

CaseChat Overview and Summary

Two Box Pty Ltd sought to have a statutory demand set aside, which had been issued by Jadd Projects Pty Ltd. The dispute between the parties arose from a contractual relationship concerning the supply of building materials. The matter was heard in the Federal Circuit and Family Court of Australia. The primary issue before the Court was whether Two Box Pty Ltd had a genuine dispute with Jadd Projects Pty Ltd regarding the debt claimed in the statutory demand. The Court was required to determine whether the statutory demand was issued for a debt that was not owed, or if there was a genuine dispute that warranted setting aside the demand.

The Court found that Two Box Pty Ltd had provided evidence of a genuine dispute regarding the amount of the debt claimed by Jadd Projects Pty Ltd. Two Box Pty Ltd submitted that there were credit notes issued and payments made that reduced the amount of the debt. The Court accepted that Two Box Pty Ltd had demonstrated a genuine dispute over the amount of the debt. The Court noted that the burden of proof was on the party seeking to set aside the statutory demand, and Two Box Pty Ltd had discharged this burden by providing evidence of the credit notes and payments. The Court concluded that, as there was a genuine dispute over the amount of the debt claimed, the statutory demand should be set aside.

The Court ordered that the statutory demand issued by Jadd Projects Pty Ltd be set aside. Additionally, the Court noted that, in light of the genuine dispute, it was appropriate to direct that the parties engage in mediation to attempt to resolve their dispute. The Court ordered that the parties were to attend a mediation conference within 28 days of the date of the judgment.

Orders