Yarraman Estate v Agrivest [2010] NSWSC 406

New South Wales Supreme Court

CITATION : Yarraman Estate v Agrivest [2010] NSWSC 406

HEARING DATE(S) : 05/05/2010

JUDGMENT DATE : 9 June 2010

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : I give leave nunc pro tunc to commence and continue these proceedings. I dismiss the proceedings with costs.

CATCHWORDS : Corporations Law. Application to set aside a statutory demand. Offsetting claim not established. Proceedings dismissed.

PARTIES : Yarraman Estate Pty Ltd v Agrivest Australia Pty Limited

FILE NUMBER(S) : SC 2009/322323

COUNSEL : Mr MJ Heath for defendant

SOLICITORS : Mr M Horton RBHM Commercial Lawyers for plaintiff Herbert Geer Lawyers for defendant

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

Associate Justice Macready

Wednesday 9 June 2010

2009/322323 YARRAMAN ESTATE PTY LTD ACN 101 141 593 v AGRIVEST AUSTRALIA PTY LTD (in liquidation) ACN 124 329 013 JUDGMENT

1 HIS HONOUR: This is an application to set aside a statutory demand served by the defendant on the plaintiff. As the defendant is now in liquidation there is also an application by way of motion filed 5 May 2010 for leave for the plaintiff to proceed against the defendant in these proceedings nunc pro tunc. The demand dated 23 November 2009 in the sum of $34,223.80 is in respect of three invoices for the provision of quantities of apple juice provided by the defendant to the plaintiff. Background 2 The plaintiff entered into discussion with the defendant for the supply of apple juice which the plaintiff would convert to apple cider and then market the produce as alcoholic cider. The discussions commenced in July 2009. 3 The discussions proceeded and eventually the form of the proposed agreement for the defendant to supply apple juice to the plaintiff for a period of 3 years was reduced to writing. However, the agreement was never executed. 4 The agreement also contemplated another agreement to place with the plaintiff a parcel of shares. 5 By 14 July 2009 the negotiations reached a point whereby in an email from the defendant to the plaintiff a redraft of the agreement was enclosed with this comment: "Redraft of the agreement we discussed – it has been around Geoff, George and myself, so probably needs a thorough re-read. Lets have your comments and sign off when you're next in the office." 6 According to the evidence of Mr Gary Blom, a director of Yarraman, there were a number of further meetings and at the last meeting the following conversation occurred: I said: "We are happy with the terms of the agreement." Geoff White and George McDonald both said: "I am happy with the terms of the agreement. We will arrange for the company to sign an agreement.'" 7 No agreement was signed because events overtook the matter. On 19 October 2009 a receiver and manager was appointed to the defendant and on 20 November 2009 a liquidator was appointed pursuant to a creditors voluntary winding up. On 23 November the statutory demand was signed and served on 27 November 2009. The originating process was filed and served within time. Plaintiff's submissions 8 The plaintiff submits that they have a total offsetting claim in the sum of $244,000. The plaintiff sourced an alternative supplier who has agreed to supply the apple juice at a price of $0.51 per litre which is in contrast to the price $0.38 per litre under the proposed contract to which I have referred. The inability of the defendant to deliver the apple juice to the plaintiff over the period of three years (the period of the proposed contract) led to a difference of $234,000 and there was an additional $10,000 expenses incurred in rebranding its product. 9 The affidavit evidence in support of the application, subject to the question of whether there was an agreement, supports the offsetting claim amount in terms of providing appropriate evidence of the quantum. 10 In considering the question of the offsetting claim I bear in mind the comments of Palmer J in Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 as follows: