Creswick Nominees Pty Ltd v Westpac Banking Corporation [2000] QSC 200

1111'.\1,L\IFNT<ll bo 0,4- Ol 00 / JOO t:? State Reporting Bi11 1 eai1 TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ATKINSON J No S2408 of 2000 CRESWICK NOMINEES PTY LTD (ACN 071 183 733) and WESTPAC BANKING CORPORATION (ACN 000 417 890) BRISBANE .. DATE 17/04/2000 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date .)...2 IS I ct, Applicant Respondent -lift f-']11111·, Till: L:1w Courts, Crnrge Street, Brish:111e, (). -tllflf) Tdeplrone: (07) .En -t.lr,n r:,x: (07) .12.t7 ~::32 -- 1 of 5 -- 17042000 T2/RB28 M/T 7461/2000 (Atkinson J} HER HONOUR: This is an application by Creswick Nominees Pty Ltd (ACN 071 183 733) to set aside a statutory demand in the amount of $16,882.02 delivered by Westpac Properties Ltd (ACN 999 417 890). The applicant seeks to set aside the statutory demand on the basis that there is a genuine dispute between the applicant and the respondent with respect to the debt to which the demand relates and that it has a cross or counterclaim which exceeds the amount of the demand. Affidavit material filed on behalf of the applicant sets out the history of the matter in great detail. I might summarise by saying that a firm of solicitors had its offices in a building owned by the respondent. The lessee of the premises was Creswick Nominees Pty Ltd and the term of the lease was to commence 1 March 1993 and to expire on 28 February 1997. There was provision for a one option term only of three years. The option was exercised and subsequent to that Mr Creswick of the firm of solicitors entered into a partnership with Mr Middleton. The partnership was called Creswick Middleton Solicitors and occupied the premises formerly occupied by Mr Creswick. A new service company was created in the name of CMS Secretariat Pty Ltd. Long negotiations took place between Creswick Nominees and the bank with the view to changing the documentation to reflect the change in the partnership, the service company 2 JUDGMENT 10 ~ 20 30 40 50 60 -- 2 of 5 -- 17042000 T2/RB28 M/T 7461/2000 (Atkinson J) and the new leasing arrangements on the third floor of the bank's premises where the solicitors' firm was situated. That correspondence became increasingly acrimonious and failed in the end to produce any agreement. The bank, unsurprisingly, required that the exercise of the option previously made should be put in writing and on 18 August 1998 Creswick Nominees Pty Ltd signed a formal document giving effect to that. That option would have 10 ~ expired on 29 February 2000. 20 After more disputation between the parties the firm of solicitors left the Westpac premises and moved to new premises in February 2000. In order to satisfy the Court that there is a genuine dispute, the dispute has to be more than merely asserted. It must appear from the documents without going into the merits that there is a genuine dispute between the parties, see Re Morris Catering (Aust) Pty Ltd 1993 11 ASCR 601 per Thomas J. In this case the applicant has said that the bank has behaved unconscionably, that it is not the applicant who owes the unpaid rent of some $16,000 and that it has cross- claims or counterclaims for $20,000 relocation costs and $5,000 to $8,000 for the applicant's expenses when the bank's solicitors failed to effect documentation in accordance with the negotiations and discussions in respect of the occupation of the premises. 3 JUDGMENT 30 40 50 60 -- 3 of 5 -- 17042000 T2/RB28 M/T 7461/2000 (Atkinson J) They assert that the bank has behaved unconscionably in failing to agree to assignment of the lease and that they may, therefore, seek rectification of the document so that the lessee is shown as CMS. But when all matters are considered I can see no genuine basis for that claim. The lessee is the applicant. There is no doubt in my mind that it owes the money to the respondent creditor. There was no settled agreement between the bank and Creswick Nominees for the assignment of the lease and therefore no basis for rectification. The failure to reach agreement after negotiations, while no doubt distressing to the applicant, does not show unconscientious behaviour on the part of the bank. Therefore I do not believe there is any genuine dispute as to the claim. As to the counterclaim, the relocation expenses would have been incurred in any event after 29 February 2000 which was the ordinary expiry date of the lease even after the exercise of the option. The bank was certainly not under any obligation to enter into any new lease. As to the costs involved in dealing with the bank's solicitors, it is certainly true, as the bank's counsel has pointed out, that a lot of the changes to the documentation were caused by the requests of the applicant and I see no basis for holding that that counterclaim has any genuine basis. 4 JUDGMENT 10 ~ 20 30 40 50 60 -- 4 of 5 -- 17042000 T2/RB28 M/T 7461/2000 (Atkinson J) In all the circumstances I am not prepared to set aside the statutory demand. I refuse the application. I order that the applicant pay the respondent's costs of and incidental to the application to be assessed. 5 JUDGMENT 10 ~ 20 30 40 50 60 -- 5 of 5 --