Morrow Marketing Pty Limited v Home Unit Investments Pty Limited [1999] NSWSC 548

New South Wales Supreme Court CITATION : Morrow Marketing Pty Limited v Home Unit Investments Pty Limited [1999] NSWSC 548 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1351/99 HEARING DATE(S) : 7 June 1999 JUDGMENT DATE : 7 June 1999

PARTIES : Morrow Marketing Pty Limited (P) Home Unit Investments Pty Limited (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. P. Durack (P) Mr. I. R. Pike (D) SOLICITORS : Norton Smith & Co (P) Parry Carroll Kanjian (D) CATCHWORDS : ACTS CITED : Corporations Law Thomas v The ANZ Banking Group Limited (1986) 64 ALR 347 CASES CITED : Spencer Constructions Pty Limited v G & M Aldridge Pty Limited (1997) 76 FCR 452 Waltons Stores Interstate Limited v Maher (1988) 164 CLR 387 Portrait Express Sales Pty Limited v Kodak Australia Pty Limited (1996) 20 ACSR 746 DECISION :

- 13 - SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 7 June 1999

1351/99 MORROW MARKETING PTY LIMITED -v- HOME UNIT INVESTMENTS PTY LIMITED JUDGMENT

1 MASTER: By summons filed on 12 February 1999 the plaintiff, Morrow Marketing Pty Limited, seeks an order that the statutory demand dated 8 January 1999 served upon it by the defendant, Home Unit Investments Pty Limited, be set aside. 2 That statutory demand seeks payment by the plaintiff to the defendant of the amount of $300,000 which is described in the schedule to the demand as follows: Amount payable on 31 December 1998 pursuant to cl.1.1(a) of Deed dated 20 August 1996 between Morrow Marketing Pty Limited, Graham Vincent Morrow, Carol Anne Morrow, the creditor, Capers Pty Limited and James Rutherford Palmer - $300,000. 3 The plaintiff brings the present application pursuant to the provisions of Division 3 of Part 5.4 of the Corporations Law. The grounds upon which the plaintiff submits that the statutory demand should be set aside are, firstly, that there is a genuine dispute as to whether the debt is due and payable; and, secondly that the affidavit in support of the demand does not comply with the statutory requirements, because it does not state the source of the deponent's knowledge of the matters set forth in the affidavit. 4 I have had the benefit of receiving from Counsel for each party a written outline of the submissions on behalf of that party. I shall retain those written outlines with the papers. 5 The ground upon which the plaintiff submits that there is a genuine dispute as to whether the debt is due and payable is that the demand grounded upon the provisions of the deed referred to in the schedule to the demand is contrary to what is described on behalf of the plaintiff as an oral assurance given to the plaintiff shortly before the deed was executed. That oral assurance was, so it was asserted, to the effect that if the plaintiff did not have the money to pay on 31 December 1998, the defendant would wait until the plaintiff did have the money to pay. 6 That oral assurance is alleged to have been given in the course of a conversation in either mid-July or late-July 1996 between Mr James Rutherford Palmer (on behalf of the defendant, who is asserted to have given such oral assurance), and Mr Graham Vincent Morrow, on behalf of the plaintiff. It will be appreciated that each of those gentlemen is, in his personal capacity, a party to the deed of 20 August 1996. 7 The express provision of the deed upon which the defendant relies in asserting that there is an amount of $300,000 presently due and payable by the plaintiff is clause 1.1(a) which provides as follows (the abbreviations "GVM", and "MMPL" and "HUI" referring, respectively, to Graham Vincent Morrow and Morrow Marketing Pty Limited and Home Unit Investments Pty Limited): GVM and MMPL jointly and unconditionally undertake to pay to HUI without any deduction or counter-claim -