Antill International Marine Pty Limited v Australasian Pacific Foods Pty Ltd [2010] NSWSC 90

New South Wales Supreme Court

CITATION : Antill International Marine Pty Limited v Australasian Pacific Foods Pty Ltd [2010] NSWSC 90

HEARING DATE(S) : 9 February 2010

JUDGMENT DATE : 9 February 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 9 February 2010

DECISION : 1. Make order 1 in the originating process; 2. order the defendant to pay the plaintiff's costs.

CATCHWORDS : CORPORATIONS – application to set aside statutory demand under Corporations Act 2001, s 459G – genuine dispute in relation to part of debt claimed – substantiated amount of demand less than statutory minimum – statutory demand set aside under s 459H(3)

LEGISLATION CITED : Corporations Act 2001 (Cth)

CATEGORY : Principal judgment

CASES CITED : Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 Re Morris Catering (Australia) Pty Limited (1993) 11 ACSR 601

PARTIES : Plaintiff: Antill International Marine Pty Limited Defendant: Australasian Pacific Foods Pty Ltd

FILE NUMBER(S) : SC 2009/290132

COUNSEL : Plaintiff: M Lawson Defendant: M Davidson (sol'r)

SOLICITORS : Plaintiff: Lane O'Rourke & West Defendant: Paladin Law

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

WHITE J

Tuesday, 9 February 2010

2009/290132 Antill International Marine Pty Limited v Australasian Pacific Foods Pty Ltd JUDGMENT 1 HIS HONOUR: This is an application to set aside a statutory demand. The statutory demand is dated 13 July 2009 and claims that the plaintiff is indebted to the defendant in the sum of $17,689.61. This debt is said to be the amount owed for "work done & services rendered at the request of the Company and accounts stated to the Company dated 10 August 2008, 20 September 2008, 11 November 2008 and unpaid." 2 In his affidavit sworn in support of the application to set aside the statutory demand the director of the plaintiff, Mr Antill, identified the following relevant grounds for disputing the indebtedness. Relevantly, they were, first, that the defendant had sent to the plaintiff company from time to time "reconciliations" claiming various amounts ranging from $29,264.63 to $9,437.01. 3 Secondly, that in relation to the accounts for periods after 31 July 2008 the plaintiff had informed the defendant that: " the consultancy arrangement was terminated and in its place a sales only commission arrangement was available and the defendant was permitted to occupy office premises of the company at no charge and to use the telephone and services of the company at no charge. " 4 The relevance of the second ground is to be understood by reference to the invoices which the defendants says are outstanding and which give rise to the claimed debt. The defendant rendered monthly invoices. Its invoices rendered up to 10 August 2008 stated that a nil balance was then due. Its invoices rendered on 20 September 2008 and 11 January 2008 asserted that amounts of $6,970.87, $5,178 and $5,549 were due. These included the three amounts described as a consulting fee for the months of August, September and October. Each of these amounts was claimed in the sum of $5,000 plus GST of $500. The plaintiff disputes that it is liable to pay these amounts. 5 If there is a genuine dispute in relation to those amounts, then the balance of the debt claimed by the defendant would fall below the statutory minimum. 6 The plaintiff is in the business of selling new Dufour yachts. In about December 2006 it took a lease of premises at Cabarita Point for the purpose of selling new and used boats and running a boat chandlery. In about August, September or October 2007 the plaintiff and the defendant reached an agreement whereby the defendant agreed to provide services to the plaintiff including the promotion and marketing of brands and the sale of yachts, the management of the chandlery, the staffing of the office at Cabarita, and dealing with telephone enquiries. 7 It was agreed that the defendant would be paid a consultancy fee of $60,000 per annum payable in equal monthly instalments, plus commission on the sale of new and second-hand boats. A written agreement was prepared but not signed. Prima facie the agreement could be terminated by either party on reasonable notice. 8 Mr Antill deposes that by mid-2008 he had decided to close the Cabarita business, but he came to an agreement with the marina for the plaintiff to take a lease of smaller premises for six months from October 2008. He deposes that during June and July 2008 he told Mr Rogers, a director of the defendant, that the consultancy arrangement must come to an end and the payment of consultancy fees of $5,000 per month should come to an end after July. He deposes that he offered to allow the defendant the right to use the smaller premises of the Cabarita marina and earn a commission only on boat sales. 9 There is corroboration that discussions to that effect occurred. Mr Rogers accepted that he had numerous discussions at the time with Mr Antill about changing the agreement, but said that nothing was decided or agreed upon as a result of those discussions. 10 On 17 June 2008 Mr Rogers sent a long email to the plaintiff dealing with a variety of subject matters but focusing in particular on the commission sales structure of the plaintiff and the plaintiff's appointment of sales agents. In the email Mr Rogers said that the plaintiff should be easily able to maintain a profit margin of 20 percent by taking certain action which he proposed. He also said: " I am very disappointed that the company views my efforts as non-contributing and sees Cabarita as supporting itself, Cabarita without staff is nothing, it is because of the work there that it ALMOST could be considered supportive, at present, it provides a cost centre without justification [sic] . This is a real slap in the face given the effort and work that has been committed, not only in brokerage but also updating websites, writing newsletters, ensuring AMIF was satisfied, managing tender documentation, promoting chandlery ... AND other responsibilities that are 'unpaid'. "