Quitstar v Cooline [2002] NSWSC 342

New South Wales Supreme Court

CITATION : Quitstar v Cooline [2002] NSWSC 342 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1886 of 2002 HEARING DATE(S) : 22/04/2002 JUDGMENT DATE : 23 April 2002

PARTIES : Quitstar Pty Limited v Cooline Pacific Pty Limited JUDGMENT OF : Master Macready at 1

COUNSEL : Mr B.J. Burke for defendant SOLICITORS : Mr D. Knaggs for plaintiff Macpherson & Kelly for defendant CATCHWORDS : Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Act. Summons dismissed. No matter of principle. DECISION : Paragraph 28

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

MASTER MACREADY

TUESDAY 23 APRIL 2002

001886/02 - QUITSTAR PTY LIMITED v COOLINE PACIFIC PTY LIMITED

JUDGMENT

1 MASTER: This is an application under section 459G of the Corporations Act to set aside a statutory demand claiming $17,140 dated 19 February 2002. 2 The plaintiff was an installer of airconditioning equipment and the defendant was the supplier of such equipment to the plaintiff. 3 The plaintiff submits that there are two reasons why the statutory demand should be set aside and in the alternative that it has an offsetting claim in respect of two airconditioners supplied to it by the defendant. These airconditioners were supplied at a cost of $4,840 and $2,000 has been paid on account. The balance of the demand is $14,300 and the offsetting claim is relied upon to meet this part of the demand. 4 The first point taken is that the demand is not a demand under the Act as although it follows the prescribed form which was in force under the Corporations Law. Thus where in the demand there should appear the words "Corporations Act 2001" there is, in fact, the words "Corporations Law". 5 In order to allow the plaintiff to seek appropriate relief, I allowed an amendment of the originating process to seek a declaration that the demand served was not a demand under the Corporations Act. 6 Under section 9, a statutory demand is defined as follows: "Statutory demand means: (a) a document that is, or purports to be, a demand served under section 459E; or (b) such a document as varied by an order under subsection 459H(4)." 7 The question is whether the demand purports to be a demand under the Corporations Act 2001. 8 In Kalamunda v Russell (1994) 12 ACLC 391. Hill J had this to say at page 3 line 6: "The word "purport" is defined relevantly in the Macquarie Dictionary, (2nd Rev ed) as: 1. to profess or claim: `a document purporting to be official'. 2. to convey to the mind as the meaning or thing intended; express; imply. In some contexts the word may merely mean "has the effect of": cf Joseph v Joseph [1967] Ch 78. However, in the present context, in my view, it has its more usual meaning of "profess" or "claim". On its face, the document professes to be a statutory demand made under the Corporations Law. It does not seem to me that the fact that it omits the notes in question alters that. It continues to profess to be a statutory demand, albeit not in precisely the prescribed form. Accordingly I would answer the first question in the affirmative. I would not accept an argument that there is a distinction to be drawn between the notes to the form and the balance of it. I see no reason why the omission of the notes is not able to be classified as a "defect". If that which professed to be a statutory demand omitted one word, no question would have arisen. The mere fact that a number of words are omitted does not, in my view, make any difference. The omission of those words is a defect in the ordinary sense of the word and thus a defect for the purposes of s 9. To adapt the words used by Lockhart J, the omission of the notes is "a lack or absence of something necessary or essential for completeness". I accept that a question of degree is involved. There might come a time when there is an omission of so many words that, rather than seeing the matter as one involving a defect, the correct answer would be that the notice was not one which purported to be a statutory demand at all. That, however, is not the present case. I should say that, had I been of the view that the demand was not one which purported to be a statutory demand, I would have been unable to give the applicant the relief it sought. The Court's power to set aside demands is a power which relates only to statutory demands, that is to say, demands which purport to be statutory demands. The Court has no power to set aside a demand which does not purport to be a statutory demand. Such a document would have no legal force or effect under the Corporations Law."