National v Parsa [2003] NSWSC 282

New South Wales Supreme Court

CITATION : National v Parsa [2003] NSWSC 282 HEARING DATE(S) : 03/04/2003 JUDGMENT DATE : 4 April 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 15

CATCHWORDS : Corporations Law. Application to set aside statutory demand. Demand set aside. No matter of princiiple. PARTIES : National Building Maintenance Pty Ltd v Ahmad Parsa & Anor FILE NUMBER(S) : SC 1469/2003 COUNSEL : Mr M. Rogers for plaintiff Miss T. Middleton for defendant SOLICITORS : Michael Rogers & Co for plaintiff Macquarie Legal Practice for defendant

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

MASTER MACREADY

THURSDAY 3 APRIL 2003

1469/03 - NATIONAL BUILDING MAINTENANCE PTY LIMITED v AHMED PARSA & ORS

JUDGMENT

1 MASTER: This is the hearing of an application to set aside a statutory demand under s 459(2) of the Corporations Law. The statutory demand was dated 21 January 2003 and was in the sum of $50,000. 2 The demand seeks the recovery of what was described as a loan advanced to the plaintiff company, which was made on 28 November 2001, for the term of twelve months. It refers to the payment of the sum of $50,000. 3 There is no doubt that the defendants paid the plaintiff $50,000, but the circumstances in which it came to be made are the circumstances which the plaintiff suggests, gives rise to a genuine dispute as to whether or not the money was paid to it by way of loan, or whether it in fact was a payment made by Mr Minotti, then a solicitor of this Court, for his own outstanding building work. 4 I have had submissions in respect of the principles as to what is a genuine dispute, and I think the most useful summation of that is that given by McLelland CJ in EQ in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACLC 669. At page 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 ass to (its) truth' (cf Eng Mee Yong v Letchumanan (1980) APPLICANT 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).