INFO v MANAGEMENT [2001] NSWSC 387

New South Wales Supreme Court

CITATION : INFO v MANAGEMENT [2001] NSWSC 387 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1774/01 HEARING DATE(S) : 27 April 2001 JUDGMENT DATE : 27 April 2001

PARTIES : INFO TECHNOLOGY (AUSTRALIA) PTY LIMITED v MANAGEMENT DATA PTY LTD JUDGMENT OF : Master Macready at 1

COUNSEL : J. Gruzman for defendant SOLICITORS : Jason Li Lawyers for plaintiff Raj Lawyers for defendant CATCHWORDS : Corporations Law. Application to set aside statutory demand. No matter of principle. DECISION : Para 20

1 MASTER: This is an application to set aside a statutory demand. The application was filed on 14 March 2001 and apparently was within time. The statutory demand is one seeking payment of the sum of $11,715 for services rendered by the defendant to the plaintiff. The services are set out in the invoice which is referred to in the demand. 2 The demand is sought to be set aside on the basis that there was a genuine dispute in respect of the liability in respect of the demand. The genuine dispute has two basic areas. First the agreement according to the plaintiff was for a fixed amount of $8,000 and secondly, it was for the provision of a complete re-design of the web site. 3 The subject matter of the proceedings between the parties concerns production for the defendant of information technology advice concerning a web site of the plaintiff company which the plaintiff company desired to modify. 4 If one looks first at the affidavit of Mr Kang of 13 March 2001 he in par 5 refers to a meeting on 25 July that he had with Mr Montano who was then an employee of his company. Mr Montano said that he had a friend, Alex, who was from the defendant company and he suggested that he be retained to do it. According to Mr Kang he wanted to pay $8,000 for the whole system. He says that he had no further conversations until 11 August when he had a discussion with Mr Montano and Mr Wang and Alex from the respondent. 5 There was also a corroborative affidavit from Mr Wang, his co-director who says that he attended a meeting on 11 August when apparently, according to him, the proposal for charging by a time basis or a rate basis of charge of $100 per hour was raised. 6 When one then looks at the two affidavits that are filed on behalf of the defendant, one has the affidavit of Mr Alex Kovacheski which was sworn on 6 April 2001. In that affidavit in par 6 he refers to a meeting of 21 July. He sets out that Mr Kang was present and he asked how much it would cost. According to Mr Kovacheski he quoted $100 per hour and that he would have to do an initial investigation before he could advise on what was necessary. 7 Similarly, Mr Montano who is a friend of Mr Kovacheski, also gave an affidavit in which he set out the details of that conversation at that meeting in similar terms. That appears in par 6. 8 The matter was part-heard before me as there was no evidence in reply. The matter has been adjourned until today so there could be evidence in reply. That evidence in reply is that of Mr Kang sworn on 17 April and also a further affidavit of Mr Wang. Mr Kang denies that he was present at the meeting of 21 July 2000 and reiterates that the only relevant conversations which were held with him were in August. 9 The two versions almost pass in the night they are so different. There are some documentary matters which would tend to support the defendants such as the dates and time sheets and it may be that the plaintiff's dates are in error. However, they are completely contrary versions of what might be the basis for any agreement for the provision of these services. 10 In this respect it is necessary for the parties to realise that what has to be determined in the present case is whether there is a genuine dispute about the liability and probably the most useful summation which is given as to the meaning of a genuine dispute is that given by McLelland CJ in Equity in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACLC 669. At p 671 his Honour made the following comments in 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) AC331 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).