Daleville Pty Ltd v Progressive Realty Property Marketing & Management Pty Ltd [2006] NSWSC 637

New South Wales Supreme Court

CITATION : Daleville Pty Ltd v Progressive Realty Property Marketing & Management Pty Ltd [2006] NSWSC 637 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 23/06/06

JUDGMENT DATE : 23 June 2006

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

EX TEMPORE JUDGMENT DATE : 06/23/2006

DECISION : Statutory demand set aside

CATCHWORDS : CORPORATIONS - winding up - creditors statutory demand - whether genuine dispute as to existence or amount of alleged debt - no question of principle

LEGISLATION CITED : Corporations Act 2001 (Cth), ss. 459E(3), 459G, 459H(1)(a), 459H(3)

CASES CITED : Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411

PARTIES : Daleville Pty Limited - Plaintiff Progressive Realty Property Marketing & Management Pty Ltd - Defendant

FILE NUMBER(S) : SC 1358/06

COUNSEL : Mr B. Neild - Plaintiff Mr S.A. Wells - Defendant

SOLICITORS : David Begg & Associates - Plaintiff McMahons National Lawyers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

FRIDAY 23 JUNE 2006

1358/06 DALEVILLE PTY LTD v PROGRESSIVE REALTY PROPERTY MARKETING & MANAGEMENT PTY LTD

JUDGMENT

1 By an originating process filed on 8 February 2006, the plaintiff makes application under s.459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on it by the defendant. That is Order 1 in the originating process. The plaintiff also seeks, as Order 2, an order that the defendant pay the plaintiff's costs. 2 The plaintiff maintains that there is a genuine dispute as to the existence or amount of the alleged debt, that being, under s.459H(1)(a), a ground which, if established as to whole of the demanded sum, must lead to an order under s.459H(3) that the statutory demand be set aside. 3 The statutory demand is dated 20 January 2006. It claims a sum of $92,000 described as follows: "Amount owed by the company to the creditor for sales commission pursuant to the terms of sales inspection report and selling agency agreement granting selling rights from 2 April 2003." 4 There is thus a claim for a simple contract debt said, in the s.459E(3) affidavit accompanying the statutory demand, to be due and payable. That affidavit refers to four sales and an amount of $23,000 commission for each sale, thus making up the demanded total of $92,000. The defendant's position, reflected in the statutory demand, is thus obviously that commission became payable in respect of each sale separately. 5 The plaintiff accepts that, in April 2003, it became party to a written contract under which the defendant was to provide real estate agency services in connection with the sale of units in the plaintiff's residential development at 33 - 47 Goold Street, Chippendale. Annexed to the affidavit of Mr Roberts (a director of the plaintiff) sworn 8 February 2006, which is the affidavit in support of the originating process, is a copy of what he says is the relevant written agreement made in April 2003. It is said to consist of two pages. 6 The defendant's position, however, is that only one of the apparent pages of the document referred to by Mr Roberts in his affidavit is relevant to the state of account between the plaintiff and the defendant. 7 I should explain the way in which the document propounded by the plaintiff is constructed. There is one page consisting of a printed form headed "Sales Inspection Report and Selling Agency Agreement" in which blanks have been completed in handwriting. This clearly is, or forms part of, an agreement between the plaintiff and the defendant. Their names appear in unmistakeable terms in the blanks reserved for "Principal" and "Agent" respectively. The printed form thus completed carries the signature of Mr Roberts on behalf of the plaintiff and the signature of one Doja (plus an impression of the common seal) in relation to the defendant. 8 There is then, on the plaintiff's case, a second page bearing the same signatures as the first page, but with the signature of Doja above the words "Progressive Investments" and no reference anywhere to the name of the defendant. The so called second page is typewritten and refers to "Total commission payable to Progressive Investments for sale of all 27 apartments". 9 The printed form contains under the heading "Agent Remuneration" the following: "The agent shall be entitled to a fee of $624,000 for all 27 units (GST inclusive) if, during the agency period they effectively introduce a purchaser to the property who subsequently enters into a binding contract."