Quill v Custom [1999] NSWSC 1067

New South Wales Supreme Court CITATION : Quill v Custom [1999] NSWSC 1067 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2719/99 HEARING DATE(S) : 13/09/99; 21/10/99, 22/10/99 JUDGMENT DATE : 22 October 1999

PARTIES : Quill Graphic Pty Ltd v Custom Press Pty Ltd JUDGMENT OF : Master Macready at 1

COUNSEL : Mr S. Lloyd for the plaintiff Mr J. Johnston for the defendant SOLICITORS : Evangelos Patakas & Associates for the plaintiff Colin Biggers & Paisley for the defendant CATCHWORDS : Corporations Law. Application to set aside statutory demand. No matter of principle. CASES CITED : Eyota P/L v Havave P/L (1994) 12 ACLC 669; DECISION : Para

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

FRIDAY 22 OCTOBER 1999

2719/99 - QUILL GRAPHICS PTY LTD v CUSTOM PRESS PTY LTD

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JUDGMENT

1 MASTER: This is an application to set aside a statutory demand served by the defendant on the plaintiff dated 12 May 1999. Demand is for $343.607.01. The demand makes claims in respect of three separate areas. There are firstly trading debts of $298,607.01; there is a loan in the sum of $20,000; and there is said to be an advance as a rebate on sales of $25,000.

2 Both the companies who are parties to these proceedings are in the printing industry, and the disputes concern matters arising in that context. 3 The plaintiff raises what are said to be genuine disputes in respect of three areas and offsetting claims in respect of four areas. This requires a consideration of what is meant by a genuine dispute and what is necessary in respect of an offsetting claim. 4 I have had the benefit of having a number of submissions in respect of the principles to be applied and I think probably the most useful summation is that given by McLelland CJ in Equity in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACLC 669. At page 671 his Honour made the following comments respect of the expression "Genuine dispute": "It is, however, necessary to consider the meaning of the expression 'genuine dispute' where it occurs in s 459H. In my opinion that expression connotes a plausible contention requiring investigation, and raises much the same sort of considerations as the 'serious question to be tried' criterion which arises on an application for an interlocutory injunction or for the extension or removal of a caveat. This does not mean that the Court must accept uncritically as giving rise to a genuine dispute, every statement in an affidavit 'however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be 'not having' sufficient prima facie plausibility to merit further investigation as to (its) truth' (cf Eng Mee Yong v Letchumanan (1980) AC 331 at 341), or a 'patently feeble legal argument, or an assertion of facts unsupported by evidence' (cf South Australia v Wall (1980) 24 SASR 189 at 194).