14 For the reasons which follow, I find it unnecessary to decide that particular issue.
15 There is no direct evidence that Mr Huang was authorised by the director of the plaintiff to institute the proceedings. No adverse inference arises against the plaintiff in this respect, as this point was not raised until today when the matter came on for hearing. That was so, notwithstanding that when the matter was fixed for hearing, Barrett J made the usual order for hearing in practice note SC Eq 1. That order required each barrister or solicitor to cause to be filed and served not later than five working days before the hearing date a short outline of submissions and a statement of the real issues for determination.
16 Quite apart from the terms of that order the parties and their legal representatives are expected to conduct litigation so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings. That means that a point such this point ought to have been flagged, whether there is any order requiring the service of a statement of issues or not. The days of trial by ambush ought to be long gone. Were it necessary to do so I would adjourn these proceedings to allow the plaintiff the opportunity to put on evidence from the director of the plaintiff on the question whether Mr Huang was authorised by him to act as he did.
17 However, I do not consider that step is necessary for this reason. The director, Mr Kin Lam, has himself sworn an affidavit in the proceeding in support of the relief claimed in the originating process. It can be inferred from that fact that he knew of and approved of the institution of the proceeding. Indeed, Mr Huang himself deposed, albeit in a form which would be inadmissible if objection could be properly be taken, that he was authorised to make the supporting affidavit under s 459G. That authority must have come from the director. I infer that the institution of the proceedings, albeit in a defective form, was authorised by the plaintiff through its director and accordingly the non-compliance with the rules should be treated as a defect or irregularity which can be disregarded.
18 I turn then to the second issue, namely, whether there is a genuine dispute. As indicated earlier, the defendant claims that a debt is owed for goods sold and delivered. It is the defendant's evidence on this application that its director, Mr Dai, reached an agreement with Mr Lam in early September 2009 for the sale by the defendant to the plaintiff, a large quantity of glassware at a discounted price of 40 per cent off the wholesale price.
19 It is the defendant's case that it delivered 200 pallets of the goods to the plaintiff on 22 October 2009 by eight trailer trips of two semi-trailers to the Liverpool markets. It is the defendant's case that some days later approximately 80 pallets were returned to the defendant.
20 Mr Dai deposes that he issued an invoice on 23 September 2009 to the plaintiff for the 200 pallets. That invoice is in the sum of $224,139.63. Mr Dai annexed to his affidavit an invoice which bears a signature which has the appearance of Mr Lam's signature. After the goods were returned the defendant issued a further invoice which is annexed to the statutory demand for $169,618.02. The defendant says that the plaintiff simply has not paid for the remaining goods.
21 The evidence of the plaintiff is that the agreement was not an agreement for the sale of goods but an agreement whereby the plaintiff would take and sell goods on consignment and the parties would share the expenses of sale and profits equally. Mr Lam admitted parts of a conversation to which Mr Dai deposed, but denied relevant parts. According to Mr Lam he stated words to the effect of "it will be on consignment and we can share the profits 50/50. We'll also share the costs as well".
22 He deposed that he had not seen any invoices and he did not sign any invoices. He disputed that there were eight deliveries by two semi-trailers of the goods to the Liverpool markets. He said that there were three deliveries by two trucks, one being a smaller truck. He deposed that all of the unsold goods were returned to the defendant's premises.
23 Mr Huang for the plaintiff deposed that the plaintiff was only able to sell glassware to the value of about $300. The plaintiff read an affidavit of a forensic document examiner which puts in issue the authenticity of the signature on the invoice of 23 September 2009.
24 On an application under s 459G for an order under s 459H on the ground that there is a genuine dispute as to the debt, it is not the Court's function to try the merits of the dispute. The only question is whether there is a genuine dispute. As McLelland CJ in Eq said in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACLC 669 at 671; (1994) 12 ACSR 785 at 787 "genuine dispute connotes a plausible contention requiring investigation".
25 It is not appropriate on the present application to seek to embark upon an enquiry as to the credit of witnesses. There is a clear dispute as to the terms of the agreement between the plaintiff and the defendant, and as to the quantity of goods delivered by the defendant to the plaintiff. There is a clear dispute as to whether the invoices were in fact provided, as well as to the authenticity of the signature on one of those invoices.
26 On the plaintiff's evidence it would not owe any amount to the defendant. Accordingly, the "admitted amount" in relation to the debt, the subject of the statutory demand, would be nil. The statutory demand should be set aside.
27 I make an order in accordance with paragraph 1 of the originating process.