Yoogalu Pty Ltd v Intentia Australia Pty Ltd [2006] NSWSC 278

New South Wales Supreme Court

CITATION : Yoogalu Pty Ltd v Intentia Australia Pty Ltd [2006] NSWSC 278

HEARING DATE(S) : 21/03/06, 22/03/06

JUDGMENT DATE : 12 April 2006

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : Statutory demands set aside

CATCHWORDS : CORPORATIONS - winding up - application for order setting aside statutory demand - whether grounds for arguing genuine dispute and offsetting claim sufficiently delineated by supporting affidavit - whether genuine dispute shown - whether offsetting claim shown - relevance of context to requirement as to quantification of offsetting claim

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

Anderson Formrite Pty Ltd v Rapid Metal Developments (Aust) Pty Ltd [2002] WASC 232 Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 70 FCR 452 CASES CITED : JJMMR Pty Ltd v LG International Corporation [2003] QCA 519 John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 Tuta Healthcare Pty Ltd v Nipro Asia Pty Ltd [2005] NSWSC 664

PARTIES : Yoogalu Pty Limited - Plaintiff Intentia Australia Pty Limited - Defendant

FILE NUMBER(S) : SC 2286/05; 3090/05

COUNSEL : Mr F.P. Carnovale - Plaintiff Mr J.B. Simpkins SC - Defendant

SOLICITORS : Brown Wright Stein - Plaintiff PricewaterhouseCoopers Legal - Defendant

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

BARRETT J

WEDNESDAY, 12 APRIL 2006

2286/05 YOOGALU PTY LIMITED v INTENTIA AUSTRALIA PTY LIMITED 3090/05 YOOGALU PTY LIMITED v INTENTIA AUSTRALIA PTY LIMITED JUDGMENT 1 The defendant served a statutory demand dated 16 March 2005 on the plaintiff on or soon after that date. The defendant served a second statutory demand on the plaintiff on or soon after 6 May 2005, the date it bears. Each statutory demand related to an alleged debt of $1,952,539.35, being, in each case, the total of invoiced amounts set out in a schedule. Each schedule refers to the same series of 21 invoiced amounts and the same "description" in respect of the respective amounts. The difference between the two schedules is that the schedule in the first demand shows, in respect of fifteen of the invoiced amounts, invoice dates ranging from 31 August 2004 to 30 November 2004, while the schedule in the second demand shows the date 21 April 2005 for each of those invoiced amounts. 2 The plaintiff filed two originating processes, one on 6 April 2005 (2286/05) and the other on 23 May 2005 (3090/05). In the first proceeding, the plaintiff claims an order setting aside the first statutory demand. In the second proceeding, the plaintiff claims an order setting aside the second statutory demand. Each application is made under s.459G of the Corporations Act 2001 (Cth). The two applications were heard together. 3 The invoiced amounts are said by the defendant to have become due by the plaintiff for services rendered by the defendant to the plaintiff which is a wholly owned subsidiary of Harvey Norman Holdings Ltd. It is not in dispute that the defendant rendered services to the plaintiff in connection with the development of computer software for use in the retailing operations of the Harvey Norman Group. The plaintiff was the procurer of such services for the group as a whole. 4 I have referred to the difference between the two statutory demands as relating to the dates of fifteen of the invoices. The relevant fifteen invoices referred to in the first statutory demand and dated between 31 August 2004 and 30 November 2004 were addressed to Harvey Norman Holdings Ltd rather than the plaintiff. Of the total of $1,952,539.35 referred to in the first statutory demand, $1,461,987.70 relates to the fifteen invoices addressed to Harvey Norman Holdings, while the balance relates to invoices addressed to the plaintiff. The fifteen invoices dated 21 April 2005 referred to in the second statutory demand are, in effect, re-issues of the earlier fifteen invoices totalling $1,461,987.70, with the re-issued invoices all bearing the date 21 April 2005 and addressed to the plaintiff instead of Harvey Norman Holdings. 5 Each originating process embodying an application under s.459G was accompanied by an affidavit as required by that section. In accordance with the principle derived from Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 70 FCR 452, the plaintiff is limited to the grounds stated (expressly or by implication) in that affidavit in pursuing its claim for an order setting aside the particular statutory demand. The several cases that support that proposition (including three decisions of the Western Australia Court of Appeal) are referred to in the judgment of Campbell J in Tuta Healthcare Pty Ltd v Nipro Asia Pty Ltd [2005] NSWSC 664. It is therefore necessary to address each statutory demand separately by reference to the content of the affidavit supporting the application for an order setting it aside. In that way, the contentions advanced by the plaintiff to which regard may be had in determining the particular s.459G application will be discovered and isolated. Evidence relevant to those contentions contained in subsequent affidavits may, of course, be received. 6 The supporting affidavit in relation to the s.459G application in respect of the first demand is the affidavit of Mr Byrne sworn on 6 April 2005 in 2286/05. Mr Byrne is the General Manager, IT, at Harvey Norman. In that capacity, he manages part of the operations of the plaintiff. He is the officer in charge of the particular software procurement project. The grounds relevant to the s.459G application concerning the first demand, as summarised in paragraph 38 of that affidavit, are that