FOX SYMES v LIPMAN [2002] NSWSC 67

New South Wales Supreme Court

CITATION : FOX SYMES v LIPMAN [2002] NSWSC 67 revised - 20/02/2002 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5829 of 2001 HEARING DATE(S) : 14/02/02 JUDGMENT DATE : 14 February 2002

PARTIES : FOX SYMES & ASSOCIATES PTY LIMITED v ALAN LIPMAN (HOLDINGS) PTY LIMITED TRADING AS WALKER PACIFIC ADVERTISING JUDGMENT OF : Master Macready at 1

COUNSEL : M. Pesman for plaintiff D.G. Charles for defendant SOLICITORS : Jones King Lawyers for plaintiff Lazarus Smith for defendant CATCHWORDS : Corporations Law. Application to set aside statutory demand. Need to quantify offsetting claim. Sufficient quantification and demand set aside. DECISION : Paragraph 16

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

MASTER MACREADY

THURSDAY 14 FEBRUARY 2002

5829/01 FOX SYMES & ASSOCIATES PTY LIMITED v ALAN LIPMAN (HOLDINGS) PTY LIMITED TRADING AS WALKER PACIFIC ADVERTISING

JUDGMENT 1 MASTER: This is the hearing of an application to set aside a statutory demand served by the defendant upon the plaintiff. The statutory demand is dated 14 November 2001 and claims the sum of $68,942.00 in respect of media placement services provided by the defendant for the plaintiff. 2 There is agreement between the parties that because of some wrong inclusions in the invoices referred to the amount of the demand was $3,785.00 greater than the amount due and that, accordingly, it should in any event be reduced to $65,157. 3 The plaintiff is a company which advertises in numerous magazines, and the defendant is an advertising agency. The arrangement seems to be that the plaintiff has provided all its work up until the relationship finished at the beginning of November last year with the advertising agency. The advertising agency receives the accounts from the various newspapers and pays them and passes the cost on to the plaintiff. 4 There is said to be a genuine dispute in respect of the amount of the debt. That expression is one which is frequently dealt with in the cases. The most probable useful summation of it is given by McClelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACLC 669 at 671 where his Honour made the following comments: "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).