Three Dimension Investments Pty Limited v Lieu Investments Pty Limited [1999] NSWSC 389 (28 April 1999)

Last Updated: 11 August 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Three Dimension Investments Pty Limited v Lieu Investments Pty Limited [1999] NSWSC 389

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 4568/98

HEARING DATE{S): 28 April 1999

JUDGMENT DATE: 28/04/1999

PARTIES:

Three Dimension Investments Pty Limited (P)

Lieu Investments Pty Limited (In Liquidation) (D)

JUDGMENT OF: Master McLaughlin

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr. K. Morrissey (P)

Mr. D. Pritchard (D)

SOLICITORS:

Liepins & Manass (P)

Nash O'Neill Tomko Lawyers (D)

CATCHWORDS:

ACTS CITED:

DECISION:

JUDGMENT:

SUPREME COURT OF

NEW SOUTH WALES

EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 28 April 1999

4568/98 THREE DIMENSION INVESTMENTS PTY LIMITED -v- LIEU INVESTMENTS PTY LIMITED (IN LIQUIDATION)

JUDGMENT

1 MASTER: By summons filed on 9 November 1998 the plaintiff, Three Dimension Investments Pty Ltd., seeks an order setting aside a statutory demand served upon it by the defendant, Lieu Investments Pty Ltd (In Liquidation).

2 That demand is dated 9 October 1998. It seeks payment by the plaintiff to the defendant of an amount of $103,855, which amount is described in the schedule to the demand as "inter company loans due and payable 27 October 1997". The summons was returnable before the Registrar on 8 December 1998. It was adjourned on a number of occasions before the Registrar and various orders and directions were made for the filing of affidavits.

3 It came before me for hearing on 19 March 1999. On that occasion the plaintiff sought an adjournment; the basis for the adjournment application was to enable the plaintiff to file further affidavit evidence.

4 In the face of opposition by the defendant I acceded to the application for adjournment and vacated the hearing date of 19 March 1999. I specially fixed the hearing before myself for this day, 28 April 1999. I made consequential costs orders in favour of the defendant. I also ordered that any further affidavits upon which the plaintiff might wish to rely be served on or before 7 April 1999.

5 When the matter came on for hearing before me this day the plaintiff relied upon an affidavit of Anthony Alfred Chung sworn 9 November 1998. The defendant objected to paragraphs 2 and 3 of that affidavit. I rejected each of those paragraphs.

6 The plaintiff filed in Court, without objection, an affidavit of Anthony Alfred Chung sworn 20 April 1999. The plaintiff sought then to read that affidavit. The defendant objected to the reading of the affidavit. The ground of that objection was that the affidavit had been served only on 22 April 1999, that being more than two weeks after the time limited for the service of such affidavit by the order of 19 March 1999. Further, that when the affidavit was served upon the defendant there were no exhibits to that affidavit made available to the defendant and that to the present time no such exhibits have been made available to the defendant.

7 No adequate explanation was offered for the contravention by the plaintiff of the order made on 19 March concerning the service of any further affidavits. The only suggested explanation was that there had been some settlement negotiations being conducted between the plaintiff and the liquidator of the defendant.

8 I did not regard the conduct of any such settlement negotiations as being an adequate explanation for the failure of the plaintiff to serve further affidavit evidence within the time limited, especially since the basis for the matter being adjourned on 19 March was to enable the plaintiff to provide such further affidavit evidence.

9 The plaintiff then sought to adduce oral evidence from Mr Chung. That course was opposed by the defendant, and I refused to allow such oral evidence to be given at the hearing where the plaintiff had not provided, in accordance with the order of 19 March, affidavit evidence.

10 The plaintiff then sought an adjournment of today's hearing. The ground upon which the adjournment was sought was to enable the plaintiff to provide further affidavit evidence. Since that was the very ground upon which the adjournment of 19 March was granted six weeks ago; and since, for practical purposes, the plaintiff had done nothing in the intervening period, apart from, more than two weeks after the time so limited, had served an affidavit without making available annexures; and since the defendant opposed any such adjournment, I refused the application for adjournment.

11 It has been submitted on behalf of the plaintiff that there is a genuine dispute as to the amount claimed. However, at the outset of the hearing Counsel for the plaintiff stated that the amounts which make up the debt claimed by the defendant were not in fact in dispute, but that the plaintiff asserted a set-off exceeding the amount of the claim in the statutory demand. There is no evidence before the Court supporting the existence of such a set-off.

12 It was also stated by Counsel for the plaintiff that the plaintiff was solvent. There is no evidence before the Court asserting or supporting such solvency.

13 There is a public interest in matters relating to companies and the service of statutory demands upon them. Further, the conduct of the plaintiff in these proceedings and the various applications by the plaintiff for adjournments and the total disregard by the plaintiff of the very basis upon which the contested adjournment was granted on 19 March 1999 would make a mockery of the proceedings in the Court if I were to allow the matter further to be adjourned.

14 There is no evidence before the Court to support the assertion that there is a dispute, let alone a genuine dispute, as to the amount claimed in the statutory demand. There is no evidence before the Court as to the existence of any set-off in favour of the plaintiff equal to or exceeding the amount of the demand.

15 Accordingly, I propose to dismiss the summons. I make the following orders:

1. I order that the summons be dismissed.

2. I order that the plaintiff pay the costs of the defendant.

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LAST UPDATED: 09/08/1999