Queensland Judgments


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  • Unreported Judgment

Palm Plantations of Australia Pty Ltd v Photosynthetix Pty Ltd


[2004] QSC 414




No 409 of 2004








DATE 01/11/2004


HIS HONOUR: This is an application to set aside a statutory demand issued under the provisions of the Corporations Act 2001.

The demand relates to the cost of a supply of plants by the respondent to the applicant, on or about 4 June 2004. The respondent received two invoices, numbers 1134 and 1135 bearing that date and detailing the plants supplied and the cost therefor. The invoices demanded respectively, the amounts of $16,632 and $16,654, totalling $33,286. The terms for payment were “Net 30th after EOM”. I interpret those terms to mean 30 days after the end of the month (June) and so one would expect the invoice to be paid on or about 30 July, 2004.

The account was not paid and on the 13th of August 2004 the respondent made a statutory demand, claiming an amount of $41,607.50, particularising the debt in the following terms as appears from the affidavit accompanying the statutory demands:

“A co-director of the company, Daniel McCarthy, has had ongoing dealings with the debtor company and the accounts as directed to the debtor company and dated the 4th of June 2004, being invoices 1134 and 1135, were so issued at the direction of Mr McCarthy. I have inspected the accounts and invoices of the creditor in relation to the debtor's company account with the creditor.”

That affidavit accompanying statutory demand was sworn by one Michael Vincent Baker who on the day previously, had been appointed a director of the company.

The supply of the items was followed by a facsimile letter enclosing invoices for the sums mentioned above and copies of these invoices were exhibited to the affidavit of Mr McCarthy showing payment terms to be “COD”. Mr Burman, the sole director of the applicant company claims never to have seen invoices in those terms.

The letter refers to a conversation which suggested that the original invoice price was a discounted price because the applicant's payment “was usually COD”. A demand for payment was made on 8 July 2004, expressing the view that the price of $33,286 was based on the terms “COD”. The demand was expressed in these terms:

“As you aware we sold these plants at AUD $200 per lineal metre on the understanding the payment was to be COD.

Due to reductions in quote our selling price is AUD $250 per lineal metre, Macrozamia Moorei.

Unless we receive payment of AUD $33,286 by close of business tomorrow (9 July 2004) we have no option but to issue new invoices at the normal selling price of AUD $250 per lineal metre.”

At the same time the respondent raised new invoices, but bearing the original numbers and dates, showing the respective amounts of $20,790 and $20,817.50, totalling $41,607.50. These invoices provided payment terms as “COD”.

The applicant claims never to have received invoices in these terms. By facsimile letter dated 6 August 2004 the applicant acknowledged a debt to the respondent and offered to make part payment by Monday 9 August 2004. That offer was said by McCarthy to be in response to numerous telephone calls and related to the payment of half the account by that date. In fact, no payment was made and the statutory demand for the amount of $41,607.50 resulted.

The applicant asserts that the demand for that amount is inflated and cannot be sustained. There is a genuine dispute as to the amount of the claim above $33,206. The fact of such a dispute is conceded by the respondent which seeks to amend its claim to that amount. It does not necessarily forego the making of the claim in the higher amount, but relies on the fact that there is no dispute as to the amount of $33,206. The respondent argues that after the variation is made, the application should be dismissed.

The applicant argues that the conduct of the respondent, by inflating its claim and seeking payment of amount to which it was not entitled, has placed the applicant in a position where it was forced to make this application. As a consequence, injustice has been caused warranting the demand be set aside. Mr Jonsson relies upon statements from the judgment and Bryson J in Portrait Express (Sales) Pty Ltd-v-Kodak (Australasia) Pty Ltd and Ors., reported in 20 ACSR 746 and he cites particularly from a passage at page 751.

Further to this the applicant relies upon a number of defects in the affidavit verifying the claim made by Mr Baker. The alleged defects relate to the address for Service in Victoria where the claim was made that it disclosed an incorrect registered office address and contrary to rule 430 of the Uniform Civil Procedure Rules, Mr Baker did not have personal knowledge of the facts.

These defects, in my view, are not such as to cause any injustice. Mr Baker was the solicitor for the respondent before becoming its director one day before the statutory demand and may well therefore have had some direct knowledge of the documents upon which the claim was based.

Of more significance is the fact that the applicant had had a long business association with the respondent. The applicant had acknowledged its debt to a substantial extent, and it was not disadvantaged if it were intending to respond to the demand to the extent of its acknowledged liability. I would not, on the ground of the existence of such defects, find any injustice.

The applicant urges me to allow the application and set aside the demand on the basis of the injustice and the applicant having been placed in the need of resisting an inflated claim. The respondent urges that I allow it to vary the statutory demand to a level of $33,286.

In the circumstances where I am satisfied that the applicant has acknowledged its indebtedness for a substantial part of the claim and has failed to make payments as it had previously agreed, I am not satisfied that improper pressure has been applied to the applicant to pay its debts by the making of the statutory demand.

The respondent should be allowed to amend its demand and proceed with that demand if the debt is not discharged within 21 days from this day. I would therefore give leave to the respondent to amend its demand to claim $33,286.

I will adjourn the further consideration of this matter to the 9th of December 2004 and I will reserve the question of costs.

That date, gentlemen, allows, of course, the 21 days to elapse for the applicant to discharge the debt.





Application No 409 of 2004








DATE 09/12/2004


HIS HONOUR: In this matter the application is dismissed and there will be no order as to costs.


Editorial Notes

  • Published Case Name:

    Palm Plantations of Australia Pty Ltd v Photosynthetix Pty Ltd

  • Shortened Case Name:

    Palm Plantations of Australia Pty Ltd v Photosynthetix Pty Ltd

  • MNC:

    [2004] QSC 414

  • Court:


  • Judge(s):

    Jones J

  • Date:

    01 Nov 2004

Litigation History

No Litigation History

Appeal Status

No Status