Plycam P/L v. Soljan, G. [1994] FCA 785

JUDGMENT No. scl. Qel wd Lome

RIBUTION

IN_THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) NG 3442 of 1994 ) VISI )

N_ THE MATTER OF YCAM P

IAN ANY NUMBER 74 BETWEEN: LY! PTY LIMITED Applicant AND: GRAEME SOLJAN Respondent CORAM: Burchett J. PLACE: Sydney DATE : 14 October 1994 R } R E

BURCHETT J.

In this matter my mind has fluctuated somewhat during the course of the hearing, but I have come now to a firm conclusion. The application relates to s. 459G of the Corporations Law, and

the question is whether there is a genuine dispute about the

alleged debt. I have been referred to the case of Mibor Investments Pty Ltd v. Commonwealth Bank of Australia (1993) 11

ACSR 362, and particularly at 365. I have also been referred to

orris i ust ja) Pt td, in the same volume, p. 601, where Thomas J made it clear that my task is to determine whether or not the dispute is genuine, and not to enter upon the

actual resolution of it.

2.

The present is a case where that observation is peculiarly apt, since I have finally come to the view that the resolution of the dispute will depend, in large part, on a precise understanding of the circumstances which surrounded the meeting of the persons involved in the company at which it was decided that the payment would be made, the character of which is now under debate. Those circumstances must, I think, have an

important bearing on the terms upon which the moneys were paid.

The notice was served on the footing that the moneys constituted a loan repayable on demand. The present application put in issue the question of whether there was a loan at all, or whether there may have been a contribution towards capital in some form other than a loan. There never seems to have been any dispute that the moneys were in fact paid; however, it should be noted that the company's response was couched in terms wide enough to embrace even the payment, and some adverse comment was