Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd

These proceedings

On 14 February 2019, these proceedings were commenced. At the first return of these proceedings on 27 February 2019, there was no appearance for Force Draft. The Registrar adjourned the proceedings to the Corporations List on 11 March 2019 for further directions. On 11 March 2019, Mr Pocock appeared in person. In considering the distance he had come, his Honour Justice Black referred the application to me for final hearing that day. I gave leave for Mr Pocock to represent the company and, after the hearing, made directions for further evidence to be served before reserving judgment. Three further affidavits were served by Force Draft and three affidavits were served by Daikin.
Because of this unusual procedural history, an issue arose as to an affidavit filed by Mr Pocock outside the terms of the leave I granted. Daikin objects to this affidavit being read. I apprehend that the mistake on Mr Pocock's part was innocent: perhaps understandably for a self-represented litigant. I do not propose to take note of the affidavit to the extent that it contains evidence although I do not consider that the findings I have made would have differed materially. To the extent that that affidavit contains submissions, it falls within the leave granted and I have considered the submissions. Mr Pocock took objection to the affidavit of Mr Narasimhachar which was filed and served in time but was then unsigned. I consider that, despite the formal issue, which has since been cured, Mr Pocock has had an opportunity to respond to its contents. I have read this affidavit.

Genuine Dispute

In Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344 at [31], the Court of Appeal approved McLelland CJ in Eq's consideration of a "genuine dispute" in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 787 as involving a plausible contention requiring investigation, raising much the same sort of considerations as the "serious question to be tried" criterion that applies in the case of an interlocutory injunction. As McLelland CJ in Eq stated at 787: This does not mean that the court must accept uncritically as giving rise to a genuine dispute, every statement in an affidavit "however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be" not having "sufficient prima facie plausibility to merit further investigation as to [its] truth", or "a patently feeble legal argument or an assertion of facts unsupported by evidence".
The Court, at [48], also approved the following statement of Thomas J in Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601 at 605: There is little doubt that Div 3 … prescribes a formula that requires the court to assess the position between the parties, and preserve demands where it can be seen that there is no genuine dispute and no sufficient genuine offsetting claim. That is not to say that the court will examine the merits or settle the dispute. The specified limits of the court's examination are the ascertainment of whether there is a 'genuine dispute' and whether there is a 'genuine claim'. It is often possible to discern the spurious, and to identify mere bluster or assertion. But beyond a perception of genuineness (or the lack of it) the court has no function. It is not helpful to perceive that one party is more likely than the other to succeed, or that the eventual state of the account between the parties is more likely to be one result than another. 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).
The characteristics of a "genuine dispute" were described in similar terms by the Victorian Court of Appeal in TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67; [2008] VSCA 70, by Dodds-Streeton JA (with whom Neave and Kellam JJA agreed), at [71]: The dispute … should have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion, and sufficient factual particularity to exclude the merely fanciful or futile. … Something "between mere assertion and the proof that would be necessary in a court of law" may suffice.
Mr Pocock referred me to two other authorities which consider a genuine dispute. In a much-cited passage of Spencer Constructions Pty ltd v G&M Aldridge Pty Ltd (1997) 24 ACSR 353, the Full Court of the Federal Court (Northrop, Merkel & Goldberg JJ) reviewed the many authorities and concluded at 365: In our view a "genuine" dispute requires that: the dispute be bona fide and truly exist in fact; the grounds for alleging the existence of a dispute are real and not spurious, hypothetical, illusory or misconceived. Similarly, in Leisure Kart City Pty Ltd v Professional Auction & Valuation Services Pty Ltd [2013] QCA 298 the test applied at first instance and on appeal was that set out in Spencer Constructions: per Philippides J, with whom McMurdo P and Holmes JA agreed, at [26].

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Cases Cited (7)