Copperart Pty Ltd, Re [1995] QSC 44 (1995) 16 ACSR 351

se c,s(on State Reporting Bureau 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.) l REVISED COPIES iSSUED l State Reporting Bureau SUPREME COURT OF QUEENSLAND I Date Cf I )J / q S CIVIL JURISDICTION WHITE J Application No 43 of 1995 IN THE MATTER OF THE CORPORATIONS LAW IN THE MATTER OF COPPERART PTY LTD (Account 005 272 604) IN THE MATTER OF A CREDITORS STATUTORY DEMAND FOR PAYMENT OF DEBT SERVED BY PERPETUAL TRUSTEE COMPANY LIMITED (Account 000 001 007) BRISBANE .. DATE 07/02/95 JUDGMENT 4th Floor, The Law Courts, George Street, Brisbane. Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 20 -- 070295 (White J) HER HONOUR: The applicant, Copperart Proprietary Limited, has brought an application pursuant to Section 459G to set aside a Statutory Demand made upon it by Perpetual Trustee Company Limited in respect of the sum of $7,573.86 being for rent and other outgoings for the month of December and electricity from 26 October, 1994 to 29 November, 1994 in the sum of $261.75 in respect of the lease of shop premises at Capalaba. In the Statutory Demand the respondent states that the debt is due and owing by Copperart under a written lease dated 17 November, 1987 and renewed for the period from 14 June, 1994 to 13 June, 1999. In the Affidavit of Debt Russell David Shaw swears that that is the basis for the money owing to the respondent. The applicant seeks to set aside the Statutory Demand as an abuse of process as well as on the basis of a genuine dispute. The applicant entered into a lease with the predecessor in title of the respondent on 14 July, 1989 with respect to Shop 89 in the shopping complex located in Capalaba. It appears that the respondent became the registered owner of the land upon which the shopping centre stands some time in 1990. Copperart and Capalaba Shopping Centre Proprietary Limited, the predecessor in title of the respondent, executed a written lease bearing date 17 November, 1989. By clause 4.44 the lessee was given an option to renew the lease. It is in the following terms: (3) "The Lessor will on the written request of the lessee made at least three months before the expiration of the term hereby created and provided that the Lessee shall have throughout the term hereby granted have duly and punctually paid the rent hereby reserved and observed and performed the several covenants, stipulations and 2 JUDGMENT .. (. 50 50 -- 2 of 20 -- 070295 (White J) agreements on the part of the Lessee hereinbefore contained at the expense of the Lessee, grant to the Lessee a lease of the demised premises for the further term specified in clause 1 .02 as the Term of Option from the expiration of the term hereof at a rent to be determined in accordance with Clause C of Annexure A hereto as if the first year of such further term had originally been included in the term hereof and containing the like covenants, agreements and provisos as are herein contained (including but without limiting the generality of the foregoing the covenants for payment of rental increases and percentage rental hereinbefore contained) with the exception of the present covenant for renewal." The parties agree that the last day for exercise of the option to renew consistently with the provisions of clause 4.44 was 13 March, 1994. On 31 March, 1994 the applicant wrote to "Mr Russell Shaw, Centre tv1anager, Capalaba Park Shopping Centre" in the following terms: "Re: Lease of Shop 89 - Option to Renew. Copperart would like to take up the option to renew its current lease for a further five (5) years." Mr Shaw, the centre manager, responded to Copperart's letter on 27 April, 1994. That letter was headed, "Re: Shop 89 - Option to Renew ... "and commenced: "Receipt of your letter dated 31st March, 1994 seeking to take up the option to renew your lease for a further five (5) years is acknowledged. Instructions have been issued to Lessor's solicitors to prepare the necessary documentation." The letter writer continued that it was proposed that the rental in the first year of the new term be maintained at the existing rate. On 23 May, 1994 Minter Ellison Morris Fletcher, the respondent's solicitors, wrote to Copperart enclosing a lease, "Pursuant to exercise of option" and Form 12 Declaration. The following appeared: 3 JUDGMENT .. ?) 50 so -- 3 of 20 -- 070295 (White J) "Please note that the lease is forwarded to you subject to our client's formal confirmation regarding its terms as prepared by us although we do not anticipate any · problems in that regard." The writer went on to request Copperart to make an election pursuant to section 6 of the Retail Shop Leases Act explaining what this meant and that the Form be executed where indicated and returned before returning the executed lease or at the same time that the lease was returned. It was carefully explained that the Form must be executed prior to the execution of the lease. Also included was the Memorandum of Estimated Legal Costs and outlays in terms of the lease document. It is not disputed that the original lease term ended on 13 June, 1994. By 20 letter dated 6 July, 1994 Copperart wrote again to the centre ~ manager headed, "Re: Proposed Tenancy": "Further to our telephone conversation yesterday we now look forward to receiving revised terms and conditions as we cannot accept the terms contained in your lease." It is not known what the terms of the telephone conversation JO were. The respondent's solicitors wrote on 9 August, 1994 referring to their letter of 21 July, 1994 stating that due to the new Land Titles Act the form of the lease previously submitted was now no longer acceptable to the Titles Office not having been executed prior to 31 July, 1994. 50 The solicitors enclosed a fresh lease for execution by Copperart by one Aart Van Roest as guarantor. Copperart wrote to the centre manager on 4 October, 1994 indicating that it had not received the proposal for a new lease and concluded: 60 4 JUDGMENT -- 4 of 20 -- 070295 (White J) "Naturally we hope that the terms and conditions offered will be better than the present agreement and look forward to hearing from you at your earliest convenience." Copperart wrote to the centre manager on 13 October, 1994 referring to correspondence and telephone calls and stating: " ... it has become quite clear that you are completely unwilling to negotiate terms which are acceptable to Copperart on our shop. I therefore regretfully have to advise you that effective 1 January, 1995 we will vacate the premises." Mr Shaw, the centre manager, responded to this letter on 14 October asserting that Copperart had exercised an option to renew its lease on 5 April, 1994 which was the date when the letter dated 31 March, 1994 was received; that an acknowledgment of the receipt of the exercise of the option was forwarded to Copperart on 27 April, 1994; and that lease documents pursuant to the exercise of the option were forwarded on 25 May, 1994 and re-engrossed documents on 9 August, 1994. By its letter of 2 November, 1994 Copperart replied that it did not exercise the option but rather that, "it would like to take up the option". Copperart referred to clause 4.44 of the original lease and that the date for being able to exercise the option had passed by the time the letter of 31 March, 1994 had been sent. The letter then concluded that since the respondent had ignored numerous requests to negotiate Copperart was now forced to vacate the shopping centre and informed the respondent that it proposed to do so on 1 December, 1994. The respondent's solicitors replied on 4 November asserting that the option had been validly exercised. The writer 5 JUDGMENT 50 60 -- 5 of 20 -- 070295 (White J) maintained that although the period set out in the lease for the exercise of the option had expired on 31 March, 1994 nonetheless the landlord was entitled to waive the late exercise of the option and did so by its letter of 27 April, 1994 acknowledging receipt of the exercise of the option. The writer concluded by putting Copperart on notice that the respondent required it to continue to comply with the provisions of the lease said to have been renewed for a period of five years commencing on 14 June, 1994 and threatening should there be default in payment of rent or other monies payable under the lease that p~oceedings would be instituted to recover. In response Copperart indicated that it would, "vigorously defend any proceedings that might be instituted." Copperart paid rent and other outgoings except, it would appear, for the electricity up until 1 December, 1994 upon which date it vacated the premises. On 28 December, the respondent served its Statutory Demand upon the applicant for rent and outgoings for the month of December and for electricity for the previous month. On 12 January, 1994 Copperart's solicitors wrote to the respondent's solicitors disputing the. demand based on a renewal of the lease. The solicitors indicated that the statutory demand was considered to be an abuse and gave the respondent an opportunity to withdraw the demand. By its facsimile transmission of 13 January 1995 the respondent's solicitors asserted that the dispute as to the exercise of the option was 6 JUDGMENT 50 60 -- 6 of 20 -- 070295 (White J) not a genuine one and declined to withdraw the statutory demand. Pursuant to section 459G of the Law a company may seek to set aside the statutory demand and a Court may do so pursuant to section 459H, if it is satisfied that there is a genuine dispute about the existence of the debt to which the demand relates and/or the company has an offsetting claim. The approach which a Court should take to an application to set aside can be seen in a number of authorities. In Re Louisbridae Ptv Ltd [1994] 2 QdR 144 Ryan J at p 146 quoted with approval, two observations of other Judges namely: "In Mibor Investments Ptv Ltd v. Commonwealth Bank of Australia [1993] 11 ACSR 362, 366-367, Hayne J. stated, after examining the provisions in Division 3 of Part 5.4 of the Coroorate Law Reform Act 1992 that 'at least in most cases, it is not expected that the court will embark upon any extended inquiry in order to determine whether there is a genuine dispute between the parties and certainly will not attempt to weight the merits of that dispute. All that the legislation requires is that the court conclude that there is a dispute and that it is a genuine dispute'. I agree with this statement. I agree also with the remarks by Thomas J. in Fe Morris Caterina (Australia) Pty Limited (Appn 718/1993; 28 September 1993, unreported) that: 'beyond a perception of genuineness (or the lack of it) the Court has no function ... The essential task is relatively simple - to identify the genuine level of a claim (not the likely result of it) and to identify the genuine level of an offsetting claim (not the likely result of it)'. To similar effects are the observations of Lockhart J in Chadwick v. Condensing Vaporisers [1994] 13 ACSR 37 where His Honour considered the judgments referred to by Ryan J and a decision of Beazley J in Scanhill Pty Ltd v. Centurv 21 7 JUDGMENT ··.1 so 60 -- 7 of 20 -- 070295 (White J) Australasia Ptv Ltd [1993] 12 ACSR 341 (who preferred the test that there be a serious question to be tried) held at page 39: " ... what appears clearly enough from all the judgments is that a standard of satisfaction which a court requires is not a particularly high one. I am for present purposes content to adopt any of the standards that are referred to in the cases: Haynes J's judgment, Thomas J's judgment or Beazley J's judgment. The highest of the threshold is probably the test enunciated by Beazley J, though for myself I discern no inconsistency between that test and the statements in the other cases to which I have referred. However, the application of Beazley J's test will vary according to the circumstances of the case. Certainly the court will not examine the merits of the dispute other than to see if there is in fact a genuine dispute. The notion of a 'genuine dispute' in this context suggests to me that the court must be satisfied that there is a dispute that is not plainly vexatious or frivolous. It must be satisfied that there is a claim that may have some substance. On the other hand the court must be careful, because if all an applicant has to do is to assert both a claim and some basis for it, without more, it would mean in almost every case that the court would set aside statutory demands where application is made to that effect. Plainly that is not what the legislature intended by introducing this new regime." Here there are no disputed issues of fact although a number of disputes as to the law or how the facts might have the law applied and consistently with the approach of Lockhart J. it is here appropriate to consider rather than merely identify the disputes. In brief, Copperart's arguments as to the existence of a dispute are these: (i) that the option had lapsed completely by 31 March 1994 and could not be revived by waiver; (ii) that the letter of 31 March 1994 was only an invitation to treat and not an offer; 8 JUDGMENT 10 50 60 -- 8 of 20 -- 070295 (White J) (iii) that it was not directed to the respondent but to the predecessor in title; (iv) that if the letter consisted of an offer, it was not accepted prior to being withdrawn by Copperart's letter of 6 July 1994; and (v) that if there were a concluded agreement, it was unenforceable or determinable at the option of Copperart, as being a subdivision of land within the meaning of section 3 of the Local Government Act which subdivision had not been approved by the requisite local authority and which requirement could not be waived, and accordingly, the applicant was entitled to terminate at any time without notice. The respondent's submissions against the genuineness of the dispute are these: (i) that it waived non-compliance by Copperart with the time period in clause 4.44 as to the giving of notice to exercise the option or there was an agreement to extend time; (ii) if the option were not validly exercised, the letter of 31 March 1994 from Copperart constituted an offer to lease, which was accepted by the respondent; 9 JUDGMENT 20 30 50 60 -- 9 of 20 -- 070295 (White J) (iii) if that agreement to lease for a further five years were not effective, Copperart held over pursuant to clause 4.06 of the original lease; and (iv) Copperart was estopped from asserting the exercise of the option was out of time or denying the existence of a new lease for five years. I propose to consider all of those matters except the matter of estoppel, which I do not regard as necessary to dispose of the application. 1 . Option Dealing with the issue of the option, the question is whether when the time period in which an option may be exercised has lapsed, there can be an effective waiver of this requirement. The answer to this depends on the characterisation of an option to renew. Mr McQuade for the respondent relied upon statements in the judgement of Kelly SPJ in Traywinds Pty Ltd v. Cooper [1989] 1QdR 222, which he submitted supported the view that the stipulation as to time in an option to renew could be waived. It seems clear on a reading of his Honour's reasons, that he was expressing no concluded view on the subject and was content to find that either waiver or by the coming into existence of a fresh agreement by the acceptance of a counter offer (being the offer to exercise the option out of time) sufficiently characterised what had occurred. Macrossan J as his Honour then was, agreed with the SPJ and likewise 1 0 JUDGMENT 30 50 60 -- 10 of 20 -- 070295 (White J) considered that if the option agreement under consideration could properly be regarded as a conditional contract for the grant of a further term, then the doctrine of waiver may operate, but he too considered that it was not necessary to seek to provide a definitive answer on that question. However, his Honour did comment that the fact that a different higher rent was paid and accepted bespoke the existence of a fresh agreement. That is not the case here, although new terms were included in the proposed new lease which was subsequently provided to Copperart. De Jersey J having been referred to Traywinds, preferred the characterisation in that case of the facts as a counter offer, in Duncan Prooerties Pty Ltd v. Hunter [1991] 1QdR 101 at page 106. He was of the view that the option to renew a written lease depended on exact compliance with its notice requirement, and when notice was not given by the due date, the option lapsed completely. See page 103. With respect to his Honour, that seems to be the generally accepted approach, dependent always upon the terms of the option. See Gilbert J McCaul (Australia) Pty Ltd v. Pitt Club Ltd [1959] SR NSW 122; United Scientific Holdings Ltd v. Burnley Borough Council [1978] AC 904; The Commonwealth v. Antonio Georgia Pty Ltd [1986] 12 FCR 51 and B S Stillwell and Co Pty Ltd v. Budget Rent-A-Car System Pty Ltd [1990] VR 589. In McCaul's case at p 123 to 4 the Court stated: "In the present case the lessor irrevocably offered to grant a lease. Its offer prescribed the time and manner for acceptance. Only by performing the conditions prescribed could it be accepted and result in an agreement for a lease. A purported acceptance without performance of the prescribed conditions would not and could not be an acceptance of the offer. It would in iC 50 reality be a counter-offer by the original offeree 60 1 1 JUDGMENT -- 11 of 20 -- 070295 (White J) requiring acceptance by the original offeror if an agreement were to result. If a conditional offer is made and the offeree without performing the condition purports to accept it, that is to say makes a counter-offer and that counter-offer is accepted, it is a losse although not uncommon use of language to say that the original offeror has waived performance of the condition which was prescribed by his offer as being the manner of accepting it. In contemplation of law the original offeror has done no such thing. What he has done is to accept a counter-offer and in the result an agreement is made but it is not an agreement consisting of the original offer and an acceptance of that offer." Having concluded that the option requirement as to time could not be waived it follows that without a further agreement there could not be an implied extension of time in which to exercise it. It is unnecessary to conclude if the form of words in the letter of 31 March 1994 was sufficient to exercise it, in view of the conclusion to which I have come, that the option was incapable of being revived by any purported waiver. 2. Counter-offer The cases to which I have referred express the view that in circumstances where the option has not been exercised in accordance with the terms of the agreement, it is open to the grantor of the option to accept a counter-offer by the grantee. It is a question of construction. Mr McKenna for the applicant has submitted that it ought to be characterised simply as an invitation to treat, principally because of the use of the expression "would like to take up the option to renew", the emphasis being on the word "like". Further, he added, that by addressing its letter to the centre manager rather than to the landlord or to the managing agent, <J•i t.• ..· Copperart confirmed the preliminary nature of its inquiry. On w 1 2 JUDGMENT -- 12 of 20 -- 070295 (1-"Jhi te J) a fair reading of Copperart's letter of 3l March l994 it can be characterised as a counter-offer. There was nothing qualified about what Copperart wanted. It might be thought that there was something equivocal about the expression "like", but it can readily be '...mderstood against the knowledge that the time for exercising the option under the lease had passed. The intention of Copperart was plain and it was up to the respondent, see Traywinds Pty Ltd v. Cooper, supra, Duncan Properties Pty Ltd v. Hunter, supra and B Stillwell and Company Ptv Ltd v. Budget Rent-A-Car, supra. Mr McKenna did not seek to deny that the letters, if apt to conclude an agreement to renew the lease for five years, constituted sufficient memorandum in writing for the purposes of section 59 of the Property Law Act. Mr McKenna submitted that it was not until the letter of 23 May l994 from the respondent's solicitor that it was aware that the respondent was the landlord. There is no evidence that it did not know and it was aware after that date and at no time was it the subject of complaint or even comment by Copperart. It could reasonably be inferred that the centre manager was regarded by Copperart as the agent of the landlord and indeed it seems to have held itself out with the approval of the respondent as the respondent's agent. There is in my view nothing in that submission. 3. Acceptance The third matter then to consider is whether there was an acceptance before withdrawal of the offer. Mr McKenna submitted that even if, as I have found, the letter from l 3 JUDGMENT 10 :.'0 JC 40 50 60 -- 13 of 20 -- 070295 (White J) Copperart of 31 March 1994 is characterised as an offer or counter-offer it was not accepted prior to being withdrawn by the letter of 6 July 1994. There were, it seems, only two communications between the parties in this period, the letters of 27 April 1994 and that of 23 May 1994. 10 The letter of 27 April is an acceptance of Copperart's proposal, namely that the existing lease be renewed in accordance with the terms of that lease and the rental was confirmed consistently with the lease. As I have said above there is nothing in the agency point. The further matters raised in the respondent's solicitor's letter of 23 May refer to formal requirements of execution including the Form 12 election requirement. The new lease submitted to Copperart contained, it would appear, at least three new matters. Clause 6 sets up a promotion fund and requires a contribution from the lessee and it is not in the original lease. Clause 2.48 of the original lease requiring the lessee to belong to a merchant's association is deleted. It seems likely that clause 2.48 was replaced by new clause 6, they substantially covering similar ground. 50 There is a requirement for a guarantee to be executed by a director which had not formerly been required. It is said that these changes indicate that the letter of 27 April was never intended to be an acceptance but merely an indication of entry into negotiations. The better approach is that there 60 1 4 JUDGMENT -- 14 of 20 -- 070295 (White J) was a concluded agreement with the letter of 27 April and that the respondent was seeking to introduce new terms thereafter. The terms were clear and any attempt to introduce the guarantee after that letter, if objected to, would have been unsuccessful in my view. It does not seem to be a situation that was implicit between the parties that there would be no bargain unless a formal contract were executed. In its letter of 6 July 1994 Copperart makes reference to a conversation of 5 July 1994 and as a consequence, looked "forward to receiving revised terms and conditions". That conversation is not deposed to and with nothing more it cannot be concluded that there was an agreement in that conversation to set aside the earlier agreement or indeed to accept Copperart's contention that there was no agreement. At some unspecified time it should be noted Copperart, by a director, Mr Roest, who was required to provide the guarantee, and its secretary, executed a form of the new lease and affixed the seal of Copperart. 5. "Subdivision" pursuant to the Local Government Act There is the final point which was advanced by Mr McKenna, namely, that the lease was a "subdivision" of land pursuant to 50 the Local Government Act. The original lease was in respect of a Real Property Act 1861 Lot for five years with a five year option. Mr McKenna submitted that it was accordingly a subdivision within the meaning of section 3 of the Local Government Act. That provides relevantly as follows: 60 1 5 JUDGMENT -- 15 of 20 -- 070295 (White J) "Dividing land into parts whether the dividing is (b) by any agreement dealing or instrument inter vivos (other than a lease for any term not exceeding five years without right of renewal) rendering different parts that are immediately available for separate disposition or separate occupation." Mr McKenna submitted that section 34(1) prohibited subdivision except in accordance with the Act which required local authority subdivisional approval and there was no evidence to suggest that there had been that approval. According to section 34(1) (iv) agreements entered into without such approval are not void but "shall be deemed to be made subject to such approval being obtained." Mr McKenna submitted that such a provision serving a public purpose could not be waived by the parties and accordingly if there were renewal of the lease upon the like terms as the original lease, which seems to have been contemplation by either the option clause or the counter-offer, the new agreement was subject to this condition. He therefore concluded that as no approval had been obtained or sought the applicant was entitled to invoke the condition and to terminate the agreement without notice. The question is is this a dividing of land into parts? There is no definition of land in the Local Government Act. Land is defined both in the Real Property Act of 1861 and in the Acts Interoretation Act. In the latter Act "land includes messuages, tenements, hereditaments, corporeal or incorporeal 1 6 JUDGMENT 50 60 -- 16 of 20 -- 070295 (White J) of any tenure or description and whatever may be the interest in the land." Of those definitions, Lucas J in The Centre Pty Ltd v Thomas R Magnus [1969] Qd Rat 452 said at page 465: "When these requirements are examined, it becomes quite apparent that what they are really intended to govern is the subdivision of what an ordinary person would describe as vacant land, although I would not wish to exclude the possibility that a building could be subdivided "horizontally" under these provisions; as I shall point out, in general they do not apply to the process of "vertical" subdivision under The Building Units Titles Act of 1965. One cannot subdivide an incorporeal hereditament, nor can one obtain a certificate of title in respect of it. I appreciate that this reasoning also leads to the conclusion that the definition of "land" in The Acts Interpretation Acts does not apply to the word "land" in s.34 of The Local Government Acts, which itself contains no definition of the word; this was the conclusion reached by Jacobs J. in re Lehrer and the Real Property Act [1960] NSWR 570; [1961] SR (NSW) 365. That learned judge held that in the case before him, the full definition of land in the Interpretation Act of 1897 (NSW) could not be applied. I respectfully agree, and for these reasons I am of opinion that the definition of "land" in s.36 of The Acts Interpretation Acts does not apply in the construction of s.24AB of The Auctioneers etc. Acts. One must examine the terms of that section itself in order to decide what "land" means in it." In my view "land" in the Local Government Act in respect of the dividing of land into parts means as his Honour observed what the ordinary person would understand by that expression. It also seems to me to be clear that that is what is meant from a plain reading of the section itself. The requirements of the Act call for orderly town planning for the provision of appropriate services and does not apply to shops in the shopping centre, the subject of leases for terms of years as in the present case. 1 7 JUDGMENT 50 -- 17 of 20 -- 070295 (White J) 6. Holdina Over It remains then for me to deal with the question of holding over. The final matter asserted by Mr McQuade on behalf of the respondent was that the lessee was a tenant holding over pursuant to clause 4.06 of the original lease if there were no new agreement to lease. Clause 4.06 provides: "If the lessee shall with the consent of the lessor remain in occupation of the demised premises after the expiration of the term hereof then and in such case the lessee shall be tenant from monto to month from the lessor of the demised premises on the terms of this agreement so far as the same are applicable to a monthly tenancy PROVIDED THAT such monthly tenancy may be determined by either party in the manner prescribed by Division 4 of Part 8 of the Property Law Act 1974-1986 AND PROVIDED FURTHER that the rental payable in respect of such monthly tenancy shall be the amount of rental payable monthly pursuant to this lease immediately prior to such expiration and shall be payable in advance". The amounts set out in the statutory demand are not in dispute. As mentioned, Copperart by letter dated 2 November 1994, gave notice vacating premises on 1 December 1994. The rent was to be paid on the first day of each month. Pursuant to section 134 of the Property Law Act a notice of termination of lease shall be given on or before the last day of the month to be effective on the last day of the following month. I accept the submission that the notice did not 10 become effective until 31 December 1994 and the amount was so therefore due and owing. Accordingly, even if there were no agreement to lease, Copperart was required to pay the rent and outgoings for 60 1 8 JUDGMENT -- 18 of 20 -- 070295 (White J) December pursuant to the holding over provisions of the old lease. Finally, Mr McKenna submitted that if the demand was maintainable on the holding over provision the statutory demand was fundamentally flawed being based on the renewal of the lease and not on the holding over provisions in the old lease. There is no injustice to Copperart in the circumstances of this demand in wrongly characterising the basis of the claim, see section 459J(i). I have found that in fact the lease was renewed but if I am incorrect in that then it seems to me that the applicant is bound by the holding over provisions. Accordingly, I conclude that there is no genuine dispute identifiable on the material filed. I should add that the use of the statutory demand procedure to force a solvent company to pay a small rental debt seems entirely inappropriate, however, having found that there was no genuine dispute, I am not prepared to hold that it was an abuse of process. Although no evidence was adduced by the applicant as to its solvency, I am prepared to make that assumption. It seems to me a wrong use of the procedure to use the fear or the apprehension of winding-up proceedings as a debt collecting procedure. For the reasons that I have set out above I conclude that there was no genuine dispute between the applicant and the respondent with respect to the amount 1 9 JUDGMENT rO 2C 50 60 -- 19 of 20 -- 070295 (White J) said to be due and owing in the demand. I dismiss the application. HER HONOUR: It seems to me that the appropriate course is that the costs order should follow the event and formal orders are the application be dismissed and that the applicant pay the respondent's costs of and incidental to the application to be taxed. 20 JUDGMENT 50 60 -- 20 of 20 --