Verden Investments Pty Ltd v Michael Lurie and Associates Pty Ltd

[2014] WASC 288

VERDEN INVESTMENTS PTY LTD -v- MICHAEL LURIE & ASSOCIATES PTY LTD [2014] WASC 288

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 288
Case No:	COR:62/2014	Heard:	3 JULY 2014
Coram:	MASTER SANDERSON	Delivered:	14/08/14
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	VERDEN INVESTMENTS PTY LTD (ACN 150 002 985) MICHAEL LURIE & ASSOCIATES PTY LTD (ACN 104 614 664)
Catchwords:	Corporations Act 2001 (Cth) Application to set aside statutory demand Defendant named not party issuing statutory demand Turns on own facts
Legislation:	Nil
Case References:	David Grant & Co Pty Ltd v Westpac Pty Ltd (1995) 184 CLR 265

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : VERDEN INVESTMENTS PTY LTD -v- MICHAEL LURIE & ASSOCIATES PTY LTD [2014] WASC 288 CORAM : MASTER SANDERSON HEARD : 3 JULY 2014 DELIVERED : 14 AUGUST 2014 FILE NO/S : COR 62 of 2014 BETWEEN : VERDEN INVESTMENTS PTY LTD (ACN 150 002 985)

Plaintiff

AND

MICHAEL LURIE & ASSOCIATES PTY LTD (ACN 104 614 664)
Defendant

Catchwords:

Corporations Act 2001 (Cth) - Application to set aside statutory demand - Defendant named not party issuing statutory demand - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr K J Everett
Defendant : Mr D Singh

Solicitors:

Plaintiff : W L & K J Everett
Defendant : Friedman Lurie Singh & D'Angelo

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

David Grant & Co Pty Ltd v Westpac Pty Ltd (1995) 184 CLR 265



1 MASTER SANDERSON: This is the plaintiff's application to set aside a statutory demand. The application is supported by an affidavit of Francis John Carmichael sworn 27 March 2014. Appearing as attachment FJC 1 to that affidavit is a copy of the statutory demand. In par 1 of the demand, there appears the following:

The company owes Michael Lurie & Associates of Level 2, 41 Colin Street, West Perth, Western Australia ('the Creditor) the amount of $37,891.73 being the debt described in the Schedule.

2 The schedule sets out a series of invoices rendered by Michael Lurie & Associates which does indeed total an amount of $37,891.73. The schedule is dated and under the entry 'signed' there is a signature which is indecipherable. Under the entry 'print name' there appears 'Michael Ian Lurie'. There is then an entry 'capacity' and the word 'partner'. Below those entries there is a further entry 'corporation or partnership name (if applicable)'. There appears next to that entry 'Michael Lurie & Associates'.

3 The plaintiff has issued proceedings against Michael Lurie & Associates Pty Ltd. As a preliminary point, the defendant says the application has been issued against the wrong entity. The demand was issued by a partnership - Michael Lurie & Associates. The plaintiff has applied to set aside a demand issued by a corporation - Michael Lurie & Associates Pty Ltd. As no demand was issued by that corporation, the application is incompetent and doomed to failure. There is no prospect of amending the name of the defendant because the 21 day time period for making an application has expired. So that is the end of the matter.

4 In opposition to the application, the defendant relies on an affidavit of Michael Ian Lurie sworn 16 April 2014. Appearing as attachment MIL 1 is a copy of an Australian Securities and Investment Commission search of the defendant. It shows the named defendant corporation has two issued shares, one owned by Mr Lurie and one owned by Shelley Ann Lurie, presumably Mr Lurie's wife. Mr Lurie is the secretary. The principal place of business is given as Level 2, 41 - 47 Colin Street, West Perth. That is the same address as given for Michael Lurie & Associates in par 1 of the statutory demand.

5 Appearing as attachment MIL 3 to Mr Lurie's affidavit is a search on the ABN Lookup Search Service. That discloses two trading names. One is Michael Lurie & Associates, the other is Michael Lurie Practice Trust. Mr Lurie in his affidavit explains the position as follows (par 6):

The equity partners of Michael Lurie & Associates are the Trustee for the Michael Trust (which is Michael Lurie & Associates Pty Ltd) and me. Ms Regina Bradford has been a salaried partner of the firm since 1 October 2013.

6 The defendant says then it is clear the legal services the subject of the demand were provided by the partnership of Michael Lurie & Associates. In support of that proposition, Mr Lurie attaches to his affidavit the invoices which formed the basis of the demand. Each one is in the name of Michael Lurie & Associates. Appearing as attachment MIL 5 is a copy of a letter from Michael Lurie & Associates to the plaintiff enclosing a copy of a retainer agreement and making certain disclosures as required by the Legal Profession Act 2008 (WA). The schedule to the retainer agreement has as the contracting party Michael Lurie & Associates. There is no mention of the defendant in these proceedings.

7 The issue was addressed in the plaintiff's outline of submissions dated 3 July 2014. It was submitted on the face of the statutory demand 'there is no identification as to who the creditor actually is, that is, who is the entity (or who are the entities) which actually trade as Michael Lurie & Associates?'. With respect, it seems obvious the entity concerned is the partnership of Michael Lurie & Associates. There can be no suggestion the present named defendant is the creditor. To further advance her proposition, counsel for the plaintiff made the following submission (par 4):

There is no registered business name for 'Michael Lurie & Associates' which is not denied by the defendant, and this is contrary to s 18(1) of the Business Names Registration Act 2011.

8 Section 18 of the Business Names Registration Act 2011 (Cth) (the Act) is in the following terms:

18 Offence—carrying on a business under an unregistered business name

(1) An entity commits an offence if:


(a) the entity carries on a business under a name; and

(b) the name is not registered to the entity as a business name on the Business Names Register.

Penalty: 30 penalty units.


(2) Subsection (1) does not apply if:

(a) the entity is an individual and the name is the individual’s name; or

(b) the entity is a corporation and the name is the corporation’s name; or

(c) the entity is a partnership and the name consists of all of the partners’ names; or

(d) the name is registered to the entity on a notified State/Territory register; or

(e) an Act of the Commonwealth, a referring/adopting State or an affected Territory, or an instrument made under such an Act, specifies the name as the name of the entity; or

(f) the entity is a government body; or

(g) the entity is a notified successor in relation to the name; or

(h) other circumstances prescribed by the regulations for the purposes of this paragraph apply.

9 It was not argued by the defendant that the business name 'Michael Lurie & Associates' is registered under the Act. It may be it does not need to be registered under the provisions of s 18(2)(c). Be that as it may, s 18 is to be found in pt 2 of the Act dealing with 'Offences relating to business names'. Whether or not the partnership has committed an offence by not being registered is not to the point. There is nothing in the Act which prevents an entity which exists in reality but is not registered from enforcing its legal entitlements. In other words, transactions conducted by an entity which is not registered but should be registered, are not in some way tainted by illegality or liable to have transactions into which they entered set aside as void.

10 But even if that were the case, it would not mean the plaintiff did not have to sue the correct entity - that is, the partnership. If that had been done, then perhaps an argument could have been mounted to the effect the defendant was not entitled to recover because it was not registered under the Act. But where, as here, the company has been sued and there is no connection between the company and the debt, the plaintiff cannot run that argument. In fact, in my view, it cannot run any argument. The application must be dismissed.

11 As a postscript I should add this. There was no application made during the course of the hearing by counsel for the plaintiff to amend the name of the defendant. Whether such an application could succeed is probably dependent upon an application of the principles set out by the High Court in David Grant & Co Pty Ltd v Westpac Pty Ltd (1995) 184 CLR 265. Consideration of that question must await another day.

12 The plaintiff should pay the defendants costs of this application, including the reserved costs.