AD'TEL v RSL [2001] NSWSC 371

New South Wales Supreme Court

CITATION : AD'TEL v RSL [2001] NSWSC 371 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4863/2000 HEARING DATE(S) : 07/05/2001 JUDGMENT DATE : 7 May 2001

PARTIES : AD'TEL DIGITAL SYSTEMS GROUP PTY LIMITED v RSL COM PARTNERS PTY LIMITED JUDGMENT OF : Master Macready at 1

Mr M.H. Sowthwick for plaintiff COUNSEL : Mr M.A. Ashhurst for defendant

SOLICITORS : Clinch Neville Long Lawyers for plaintiff Lincoln Smith & Company for defendant CATCHWORDS : Corporations Law. - Application to set aside statutory demand. - No matter of principle. - Demand reduced. DECISION : Paragraph 11

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1 MASTER: This is an application to set aside a statutory demand which has been served by the defendant on the plaintiff. The statutory demand seeks payment of the sum of $326,038.18 pursuant to a judgment entered in the District Court in proceedings in that jurisdiction. 2 There was an application to set aside the judgment and that application was unsuccessful. However, it was indicated that the matters which were proposed to be raised on the application to set aside the judgment really are matters that are a cross-claim and not a defence to the claim against the plaintiff. Ultimately, the plaintiff has issued proceedings in the District Court in order to recover a sum of $750,000, which is the amount referrable to the District's Court limited jurisdiction. In essence, the plaintiff has sought to raise an offsetting claim in the present proceedings. 3 There was only one affidavit that was filed within time and the relevant claim which was set out appears at paragraph 16 and following of the affidavit of Mr Thompson. Relevantly paragraph 17 of that affidavit provides:- "I am advised by Mr Lane that information requested from time to time from RSL Com necessary for us to bill our clients, and which they are obliged to provide to us has been inaccurate and has been provided well after the date that it was requested and ought to have been provided in order for us to issue timely accounts to our customers. I have asked him to swear an affidavit for these proceedings dealing with these issues. I am informed and verily believe that an affidavit will be prepared by him either today or tomorrow." 4 There have been tendered a number of affidavits filed in the District Court and ultimately it is apparent that the only one which in any way quantifies any cross-claim or offsetting claim is the affidavit of Mr Scott Lane of 29 January 201. 5 The claim in the District Court and the offsetting claim raised in these proceedings concerns the provision of information pursuant to contractual arrangements between the plaintiff and the defendant which were engaged in the tele-communications industry, providing services for mobile telephone users. 6 The relevant paragraph in Mr Lane's affidavit which summarises the losses is paragraph 38. There are four amounts there. One of them, an amount of $48,000 for incorrectly issued bills, finds no support in the affidavit at all; in other words, there is no substantive matter which deals with any question of liability for this amount. In this circumstance it would seem to be open to be a bare assertion that there would not be an offsetting claim in respect of that amount. 7 The other three amounts are set out in a little detail in paragraph 36. These related to the change of customers to a different network from the defendants. 8 The point that is taken is that this offsetting claim was not foreshadowed in paragraph 17 of Mr Thompson's affidavit. That affidavit, in the first sentence, concludes with the words "in order for us to issue timely accounts to our customers". Because these particular matters are said not to relate to that issue, they are beyond the range of what might be read on the present application. However there is, I think, in paragraph 17 also an indication of the nature of the defaults. 9 It is submitted that the information has been provided inaccurately and it has been provided late. It seems to me that even providing information late would incur some of the problems that are referred to in the actual claims in paragraph 36. 10 I think that a reasonably wide interpretation of paragraph 17 should be adopted and accordingly I am satisfied that there is an offsetting claim in respect of the amounts of $36,397.22, $39,150 and $8,700; being a total sum of $84,247.22. I am informed by the plaintiff that they have, in fact, recently obtained by way of garnishee the sum of $18,748.01 and that accordingly the amount of the demand should also be reduced by that amount since it has been paid. 11 The substantiated amount is $102,995.23 and accordingly the order that I make is that I vary the demand by reducing the amount to $223,042.95 and declare that the demand be varied from the time it was served on the plaintiff company. 12 (Mr Ashhurst applied for costs.) 13 The plaintiff has substantially been unsuccessful in respect of the application, although it has obtained a significant reduction in the amount. I think it is appropriate that the plaintiff pay the defendant's costs but I do not think the full costs. I propose to order that the plaintiff pay two-thirds of the defendant's costs of the application. 14 The exhibits may be returned.