Marvel v Fisher [1999] NSWSC 502

New South Wales Supreme Court CITATION : Marvel v Fisher [1999] NSWSC 502 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 1494/99 HEARING DATE(S) : 16 April 1999 JUDGMENT DATE : 16 April 1999

PARTIES : Marvel Corporation Pty Ltd v Michael Andrew Fisher JUDGMENT OF : Master Macready at 1

COUNSEL : Mr P. Furty for the plaintiff Mr. G. Thiele for the defendant SOLICITORS : Keith Hurst & Associates for the plaintiff Chegwidden Solicitors for the defendant CATCHWORDS : Corporations Law. Application to set aside statutory demand. No matter of principle. DECISION : para 12

4 THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

FRIDAY 16 APRIL 1999

1494/99 - MARVEL CORPORATION PTY LTD v. MICHAEL ANDREW FISHER

JUDGMENT

1 MASTER: This is an application to set aside a statutory demand dated 3 February 1999. The application has been brought in time and the demand claims two sums payable by the plaintiff to the defendant. The first sum is $5,634.88 in respect of loans said to be made by the defendant to the plaintiff and the second is $75,303.83 which is said to be payable consequent upon the termination of the employment of the defendant with the plaintiff. 2 The defendant commenced employment with the plaintiff as finance administration manager with the company on 8 August 1997. There is a letter setting out the terms of that employment. The defendant's employment was terminated on 19 January 1999, according to the defendant, on the grounds that the plaintiff took the view that he had made unauthorised transfers of funds to himself personally. 3 The application to set aside is made on two grounds: firstly, that there is a defect in the affidavit accompanying the demand and secondly that there is a genuine dispute in any event. The affidavit accompanying the demand is that of the plaintiff sworn 3 February 1999. That affidavit deals with the loans and also the payments by the defendant from the company itself in his position as finance manager, the termination of the contract, the grounds for termination and the amount claimed. 4 Under Part 88 rule 15 of the Supreme Court Rules there are requirements for the contents of the affidavit accompanying a demand. In particular, rule 15(1)(d) and (e) requires a statement by the demand that the amount is due and owing and secondly a statement by the deponent that there is no genuine dispute. 5 There is one other defect in the demand and that is that it does not have the 'important note' which must be attached to the affidavit. In the circumstances of this case that is not a sufficient defect under section 459J(1)(b) to set aside the demand. This is well established that a defect in an affidavit accompanying may lead to the demand being set aside and it is not necessary in such a case to prove substantial injustice, which is required under section 459J(1)(a). See Spencer Constructions v. Aldridge (1997) 76 FCR 452 and Kezarne Pty Ltd v. Sydney Asbestos Removal Services Ltd 29 ACSR 11. 6 The matter which is of importance is the absence of a statement that there is a belief of no genuine dispute. In B&M Quality Constructions Pty Ltd v Buyrite Steel Supplies Pty Ltd (1995) 13 ACLC 88 his Honour McLelland J referred to the importance of this statement as a significant mechanism in the hearing of statutory demands for filtering out cases where there is a genuine dispute. 7 In the present case it is perfectly obvious on the plaintiff's own affidavit that he was likely to have been aware that there was a dispute. He was called in and his employment terminated for making unauthorised payments which he said he was authorised to make. This is clearly the type of case where it would be inappropriate for such a matter to be omitted. Whether it is omitted by the solicitor or by the deponent, I find that in the circumstances there must have been a dispute. Accordingly it seems to me that this is an appropriate ground for setting aside the demand. 8 There was also a ground raised that the affidavit supporting the demand did not specify in detail the way in which the amounts claimed to be due on termination of the employment were calculated. The specification of such matters were given in later affidavits. 9 By itself I would not necessary set aside the demand on this ground given the absence of any other evidence in the matter. However even in this case it seems to me that there is a genuine dispute. There are in fact two amounts, one concerning a loan and it seems clear that there is at least an arguable case on the affidavit evidence that the repayment of that loan is not due until the granting of an export grant. The balance of the amount is to do with the employment and amounts payable upon termination. 10 There seem to be a number of different amounts claimed. The first amount is the sum claimed to be due under clause 2 of the contract of employment, being a statutory superannuation payment. Probably there is no dispute that that amount is $6,650. The other amount under clause 5 I would have thought was payable and particularly the next amount is payable under clause 6. 11 However, in view of my conclusion in relation to defects in the affidavit, I do propose to set aside the demand. 12 Accordingly, I make order 1 in the summons and order 2 in the summons.