Meraklis Pty Ltd v Bank of Western Australia Ltd [2010] NSWSC 53

New South Wales Supreme Court

CITATION : Meraklis Pty Ltd v Bank of Western Australia Ltd [2010] NSWSC 53

HEARING DATE(S) : 4 February 2010

JUDGMENT DATE : 4 February 2010

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 4 February 2010

DECISION : Application dismissed.

CATCHWORDS : CORPORATIONS – STATUTORY DEMAND – Application to set aside a statutory demand – whether evidence that does not provide sufficient particularity of economic loss can qualify as a genuine offsetting claim – no genuine dispute as to existence of or amount of the debt.

LEGISLATION CITED : Corporations Act 2001 (Cth) - s.459G, s.459H, s.459J Trade Practices Act 1974 (Cth)

CATEGORY : Principal judgment

- Builder and Construction Group International Pty Ltd v Datalec Services Pty Ltd [2009] NSWSC 1136 CASES CITED : - Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund (1996) 21 ACSR 581 - Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743

PARTIES : Meraklis Pty Ltd (Plaintiff) Bank of Western Australia Ltd (Defendant)

FILE NUMBER(S) : SC 4508/09

COUNSEL : C. Carter (Plaintiff) P. Dowdy (Defendant)

SOLICITORS : McKells Solicitors (Plaintiff) Henry Davis York (Defendant)

4508/09 Meraklis Pty Ltd v Bank of Western Australia Ltd

JUDGMENT – Ex tempore

4 February, 2010

1 This is an application under s.459G, s.459H and s.459J of the Corporations Act 2001 (Cth) to set aside a statutory demand served on the Plaintiff. The demand claims payment of a sum in excess of $2.3M owing pursuant to a finance facility provided by the Defendant to the Plaintiff. There is no dispute that the Plaintiff executed such a facility and received the principal of the loan. There is no dispute either that there has been a default in the repayment terms of the facility. 2 The Originating Process was filed within the time required. The affidavit in support is that of Con Chartofillis of 10 September 2009. 3 Very briefly, the circumstances alleged in that affidavit are as follows. Mr Chartofillis is the sole director of the Plaintiff company. He says that he was minded to refinance an existing facility and had discussions with an officer of the Defendant in that regard in 2007. He says that in the course of those discussions, he made it plain to the officer of the Defendant, a Mr Moll, that he wished to proceed with a facility with the Defendant only if the Defendant would guarantee that it would give the Plaintiff a loan to discharge the existing debt to another lender and would also provide additional funds for the construction of a development which the Plaintiff owned. He says that Mr Moll, on behalf of the Defendant, gave assurances that the construction loan, as well as the refinancing loan, would proceed and Mr Chartofillis says that on the basis of those assurances, he entered into the new loan with the Defendant. 4 The construction loan was not made available and the Plaintiff subsequently defaulted in the repayment obligations under the refinancing loan. 5 Mr Chartofillis says that, had it not been for the assurances of Mr Moll that the construction loan would proceed, he would not have entered into the refinancing loan with the Defendant. So far, the affidavit of Mr Chartofillis sets out facts which could found various self evident causes of action, such as for misrepresentation or misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) and other causes of action founded upon misleading and deceptive conduct or false statements or statements made without reasonable belief. That is not the difficulty in this case. 6 The loss which would be claimed by reason of those causes of action is economic loss and that loss, if established, would offset either wholly or partially the admitted debt owing by the Plaintiff to the Defendant. The difficulty is that the affidavit of Mr Chartofillis gives no details whatsoever which would enable those losses to be quantified in any way. All that Mr Chartofillis says about loss is contained in paragraphs 31 to 33 which are as follows: "31. I would not have suffered losses or damages as a result. In the current economic climate property prices have dropped markedly; as has the level or frequency of sales. In the current climate it is very difficult to obtain approval for construction loans.