Electic v Todaytech [2003] NSWSC 211

New South Wales Supreme Court

CITATION : Electic v Todaytech [2003] NSWSC 211 HEARING DATE(S) : 14/03/03 JUDGMENT DATE : 14 March 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 13

CATCHWORDS : Corporations Law. Application to set aside statutory demand. Summons dismissed. No matter of principle. PARTIES : Electic Australia Pty Limited v Todaytech Distribution Pty Limited FILE NUMBER(S) : SC 1035/03 COUNSEL : Mr T. Hancock for plaintiff Mr K. Smark for defendant SOLICITORS : Conway MacCallum for plaintiff Chris Lai Solicitors for defendant

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

MASTER MACREADY

FRIDAY 14 MARCH 2003

1035/03 - ELECTIC AUSTRALIA PTY LIMITED v TODAYTECH DISTRIBUTION PTY LIMITED

JUDGMENT 1 MASTER: This is an application to set aside a statutory demand which is dated 16 December 2002 and claims a sum of $753,472.17. There had earlier been another statutory demand, which was issued and withdrawn at a time after the relevant events which occurred, which I have to consider in this case. 2 The plaintiff and the defendant had traded together for some time in the buying and selling of electronic equipment and the action arises from the trade between them for the sale and purchase of goods. There is no dispute between the parties as to the amount and the real question is whether the amount referred to in the demand is presently due and owing. 3 The plaintiff raises two matters. First, it says that there is a genuine dispute because of a contractual term which was supported the consideration allowed it a further period of a year from 8 October 2002 to repay the debt. 4 The other matter which it raises is an offsetting claim for which there is some evidence to support some damages which it has sustained arising from events which occurred after the discussions in October. The problem with this claim is it is not quantified and accordingly could only be valued, if at all, at $1 and in the context of this case that is almost irrelevant. This is not to say that there might not be some appropriate claim but that is a matter which will have to be dealt with at another time and another place in some other proceedings. 5 The real question concerns the discussions of 8 October. Different versions were given in evidence but it is plain that I cannot resolve any differences in the relevant conversations and accordingly I will assume for the purposes of the discussions, to which I will now refer, that the conversations were as set out at paragraphs 11 through to 13 of the affidavit of Mr Yang of 13 March 2003. Those paragraphs are in the following form:- "11. At the meeting on 8 October 2002, I met with Michael Chong of the defendant who I had met previously. I observed that there was another gentleman present at the meeting who I had not met before. He was introduced to me as Mark Knox. I do not recall Mark Knox saying anything at the meeting. At the meeting Michael Chong and I had a conversation to the following effect: Chong: 'What is going on with these debts? We need them paid now.' Yang: 'There is some happenings in Korea. The Korean banks have started to pull credit line from my customers. Based on the last history, it has happened in Korea before. Eventually line of credit was given again to customers. Based on this history, we expect the Korean banks to open line of credit again in 2 months. I can't be sure. I can only pay you when my customers pay. Since the amount of our receivables and payables of CPU business is too big, I can't raise funds from other small businesses, I can pay you only when I receive payment from Korea.'