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METRO GLASS PTY LTD -v- DCONSTRUCT PTY LTD [2024] WASC 42 (27 February 2024)

Last Updated: 27 February 2024


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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : METRO GLASS PTY LTD -v- DCONSTRUCT PTY LTD [2024] WASC 42

CORAM : ACTING MASTER MCDONALD

HEARD : 8 SEPTEMBER 2023

DELIVERED : 27 FEBRUARY 2024

FILE NO/S : COR 74 of 2023

BETWEEN : METRO GLASS PTY LTD

Plaintiff

AND

DCONSTRUCT PTY LTD

Defendant


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Corporations - Statutory Demand - Application to set aside statutory demand - Offsetting claim - Whether defendant agreed to supply goods to plaintiff - Effect of quotations - Defendant claimed no contracts entered into with plaintiff for supply of goods - Whether sufficient evidence to establish offsetting claim - Corporations Act 2001 (Cth), s 459H


Legislation:

Corporations Act 2001 (Cth), s 459H


Result:

Application dismissed


Category: B

Representation:

Counsel:

Plaintiff
:
IR Gillon
Defendant
:
M Vallve


Solicitors:

Plaintiff
:
Lawton Gillon
Defendant
:
Vallve Legal


Cases referred to in decision:


ACTING MASTER MCDONALD:

  1. This is an application to set aside a statutory demand. For the following reasons the application is dismissed. However, I will extend the time in which to comply with the statutory demand and I will hear the parties as to the date for compliance.
Application
  1. The defendant in this proceeding issued a statutory demand to the plaintiff dated 28 April 2023 (Statutory Demand) in relation to money owed to the defendant for the supply of glass to the plaintiff in its regular course of business. The Statutory Demand is for the sum of $187,016.36 for goods supplied to the plaintiff from 3 May 2022 to 15 June 2022.
  2. The plaintiff has applied by way of originating process dated 17 May 2023 (Application) to set aside the Statutory Demand pursuant to s 459G, s 459H and s 459J of the Corporations Act 2001 (Cth) (the Act) and, in the alternative, to extend time for compliance with the Statutory Demand pursuant to s 459F(2) of the Act.
  3. The following affidavits were filed by the parties:
(a) the affidavit of Mr Mark Vincent Cirillo, a director of the plaintiff, sworn on 16 May 2023 (First Cirillo Affidavit);
(b) the affidavit of Mr Mark Vincent Cirillo sworn on 17 May 2023 (Second Cirillo Affidavit);
(c) the affidavit of Mr Mark Vincent Cirillo sworn on 3 August 2023 (Third Cirillo Affidavit); and
(d) the affidavit of Mr Douglas Charles Hudson Stewart, who is the sole director of the defendant, sworn on 29 June 2023.
  1. I have also read the plaintiff's written submissions filed on 23 August 2023 in support of the Application (Plaintiff's Submissions) and the defendant's written submissions filed on 4 September 2023 in opposition to the Application (Defendant's Submissions).
  2. I heard from counsel for each party at a special appointment hearing that commenced on 7 September 2023 and was subsequently adjourned and heard on 8 September 2023 to afford the opportunity to the plaintiff to provide an ASIC Current Company Extract pursuant to r 2.4 of the Supreme Court (Corporations) (WA) Rules 2004.
Background
  1. The plaintiff in this proceeding operates a business where it supplies and installs glass to contractors on large commercial projects.[1] From about 11 August 2021 to 15 June 2022, the defendant company carried on the business of the wholesale supply of processed flat glass under the trading name 'Modern Glass'. One of the customers to whom the defendant supplied glass was the plaintiff.[2]
  2. Mr Stewart deposes on behalf of the defendant that in or about early 2022 it became apparent to him that the defendant could not continue to operate its business and remain solvent and so he made the decision to cease trading and start winding down.[3] Mr Stewart sent a letter to the plaintiff dated 11 May 2022 advising that the defendant would officially cease normal operations on 15 June 2022 (Closure Notice).[4]
  3. Mr Cirillo deposes that this decision was made without any notice to the plaintiff and after the plaintiff had received quotes from the defendant for various jobs that the plaintiff relied upon when quoting for jobs for third parties.[5] Mr Cirillo says the defendant was the plaintiff's primary supplier of glass.[6]
  4. Mr Stewart deposes that in the weeks after sending the Closure Notice to the plaintiff, he had a number of telephone conversations with Mr Cirillo in order to ensure that all extant orders at that date were fulfilled. Mr Stewart further deposes that during these conversations he agreed to consider any further requests for the supply of glass during the winding down period on an ad hoc basis and subject to stock availability.[7]
  5. Mr Stewart deposes that the defendant filled all the orders placed by the plaintiff during the winding down period and issued its final invoice to the plaintiff on or about 15 June 2022.[8] Mr Stewart deposes that the plaintiff has not paid any of those invoices.[9] Those unpaid invoices gave rise to the Statutory Demand.
  6. Following the defendant ceasing to carry on its business, the plaintiff was required to source glass to complete its jobs for third parties from suppliers other than the defendant.[10]
  7. Mr Cirillo deposes that additional costs were incurred by the plaintiff as a result of the defendant ceasing to trade and not supplying the glass it had quoted upon and agreed to supply to the plaintiff and that these costs exceeded the amount claimed to be owing by the plaintiff to the defendant.[11]
  8. On 11 August 2022 Mr Cirillo sent an email to Mr Stewart setting out the loss and damage that he alleged the plaintiff had suffered as a result of the defendant not supplying the glass it had quoted to supply. In the email Mr Cirillo alleged that the total cost to the plaintiff was $122,322.53 plus GST and that the plaintiff was facing claims for unliquidated damages on multiple sites due to delays.[12] Mr Stewart deposes that even if that was the case, the defendant never received payment of $62,677.47, being the amount owed to the defendant minus the plaintiff's calculation of its losses.[13]
  9. The defendant caused its lawyers to send to the plaintiff a notice of demand dated 19 December 2022.[14] On 28 April 2023 the defendant issued to the plaintiff the Statutory Demand for the amount of $187,016.36, supported by an affidavit of Mr Douglas Charles Hudson Stewart sworn 28 April 2023.[15]
  10. At the hearing on 8 September 2023 counsel for the plaintiff conceded there is no dispute that the defendant's invoices for glass supplied during the period between 3 May 2022 and 15 June 2022, as annexed to the Stewart Affidavit,[16] have not been paid.[17]
  11. Mr Cirillo deposes that since his email of 11 August 2022 he has ascertained that the plaintiff suffered additional losses.[18] The plaintiff has estimated the alleged total value of its offsetting claim is $200,220.62.[19]
  12. Mr Cirillo deposes that to the extent the plaintiff is indebted to the defendant, the plaintiff has an offsetting claim against the defendant in an amount exceeding that claimed in the Statutory Demand.[20]
  13. In the Third Cirillo Affidavit it is alleged that the plaintiff continues to incur expenses through warranty claims made against the supply of glass sourced from the defendant.[21] The plaintiff abandoned this claim at the hearing on 8 September 2023 and it does not form part of the Application.[22]
Issues
  1. Prior to the plaintiff quoting on jobs for third parties, the plaintiff would obtain quotes from the defendant for the supply of glass required to complete the jobs.[23] At the heart of the dispute in this proceeding is whether the defendant had a contractual obligation to supply glass it quoted upon to the plaintiff, or at a later time when the plaintiff advised the defendant that the plaintiff had been successful in tendering for the job (for which the quotes were obtained) or upon the defendant receiving a purchase order.
  2. If the defendant was under a contractual obligation to supply glass, the issue is whether there were outstanding orders that had not been fulfilled to give rise to an offsetting claim.
Statutory provisions
  1. Section 459E of the Act provides a statutory regime under which a creditor may serve a statutory demand on a company in respect of a debt or debts which are due and payable, provided the debts meet at least the statutory minimum amount. The statutory minimum is exceeded in this case.
  2. Section 459F concerns where a company is taken to have failed to comply with a statutory demand.
  3. Under s 459G of the Act a company may apply to set aside a statutory demand:
459G Company may apply
(1) A company may apply to the Court for an order setting aside a statutory demand served on the company.
(2) An application may only be made within 21 days after the demand is so served.
(3) An application is made in accordance with this section only if, within those 21 days:
(a) an affidavit supporting the application is filed with the Court; and
(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
  1. The plaintiff also raised s 459J of the Act in their written submissions,[24] which provides:
459J Setting aside demand on other grounds
(1) On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:
(a) because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or

(b) there is some other reason why the demand should be set aside.
(2) Except as provided in subsection (1), the Court must not set aside a statutory demand merely because of a defect.
  1. The plaintiff has not made any submission directing me to why I should set aside the Statutory Demand under s 459J of the Act. Nor has the plaintiff identified any defect in the Statutory Demand in its submissions and, relevantly, counsel for the plaintiff has conceded that the substance of the Statutory Demand is in order (being that the goods had been supplied, invoices had been rendered and subsequently those invoices have not been paid).[25]
  2. Section 459H of the Act provides:
459H Determination of application where there is a dispute or offsetting claim

(1) This section applies where, on an application under section 459G, the Court is satisfied of either or both of the following:
(a) that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates;

(b) that the company has an offsetting claim.
  1. An offsetting claim is defined as meaning a genuine claim that the company has against the respondent by way of counterclaim, set‑off or cross‑demand (even if it does not arise out of the same transaction or circumstances as a debt to which the demand relates).[26]
  2. Subsection 459H(2) sets out how an offsetting claim is calculated.
  3. Subsection 459H provides that where the substantiated amount is at least as great as the statutory minimum the court may make an order:

(a) varying the demand as specified in the order; and

(b) declaring the demand to have had effect, as so varied, as from when the demand was served on the company.

Legal principles
  1. The plaintiff's case is that the Statutory Demand should be set aside pursuant to s 459H, on the ground that the plaintiff has an offsetting claim against the defendant that exceeds the amount of the debt the subject of the Statutory Demand.
  2. The relevant legal principles are not in dispute. Those principles were set out by the Court of Appeal in Kiewit Australia Pty Ltd v New Energy Corporation Pty Ltd [2018] WASCA 180 at [50]:
(1) The onus is on the recipient of the statutory demand to establish the offsetting claim.
(2) The expression 'genuine claim' connotes a plausible contention requiring investigation and raises similar considerations as 'the serious question to be tried' criterion on an interlocutory injunction.
(3) Rather than deciding the merits of the alleged claim, the court examines whether there is a genuine claim sufficiently quantified to give rise to an offsetting amount. The court must identify the alleged claim which must 'be bona fide and truly exist in fact' and assess whether it is a genuine claim. If such a claim is raised, the court does not attempt to resolve the claim or predict its outcome.
(4) The demand must be set aside or varied if there is a genuine claim which is not based on spurious, hypothetical, illusory or misconceived grounds.
(5) This does not mean that the court must accept uncritically as giving rise to a genuine dispute, or a genuine claim, 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. Nor does it require the acceptance of a 'patently feeble legal argument' or 'matters of fact unsupported by evidence'.
(6) A company seeking to set aside or reduce a statutory demand on the basis of an offsetting claim does not need to set out evidence supporting the amount of the claim in meticulous detail. It is enough that the company provides evidence of a plausible and coherent basis for quantifying the claim which it genuinely asserts or showing that the claim exceeds the amount of the debt demanded. Precise quantification is unnecessary. (Footnotes omitted).
  1. It is neither necessary nor appropriate for the court to consider the merits of the offsetting claim or its likely prospects of success.[27] Although particularly detailed evidence is not required, a company alleging that it has an offsetting claim must adduce at least some evidence sufficient to show the basis upon which its loss is said to arise and how that loss is calculated to enable the court to determine whether the offsetting claim is made in good faith and estimate the amount of the claim.[28]
Evidence
  1. There were objections to the evidence in the affidavits made in the course of the hearing which were necessary to be determined once all the evidence was considered by the court. The defendant objected to paragraph [23] of the First Cirillo Affidavit and the second sentence of paragraph [11] of the Third Cirillo Affidavit. Counsel for the plaintiff objected to paragraphs [47] and [48] of the Stewart Affidavit, in that they relied on facts in an annexure that was not attached. That objection was conceded and no reliance was placed on paragraphs [47] or [48] of the Stewart Affidavit.
  2. I uphold the objection to paragraph [23] of the First Cirillo Affidavit in which Mr Cirillo deposes that '[t]he defendant was well aware that the Plaintiff was incurring additional costs as a result of the Defendant ceasing to trade and not supplying to the plaintiff the glass it had quoted and agreed to supply'.
  3. First, while there is evidence by way of an email from Mr Cirillo to Mr Stewart dated 11 August 2022 in which Mr Cirillo tells Mr Stewart he has suffered losses as a result of the defendant closing, that does not necessarily mean that it was accepted by the defendant that any losses incurred by the plaintiff were due to its closing. It may mean the defendant was aware that this was the plaintiff's view but there is no evidence of the defendant's state of mind. Secondly, the issue of whether the defendant had agreed to supply the glass quoted is the very dispute between the parties.
  4. I uphold the objection to the second sentence of paragraph [11] of the Third Cirillo Affidavit in which Mr Cirillo deposes '[t]he Defendant was well aware from our previous dealings that the majority of the glass the Plaintiff was supplying was for use on large commercial projects and the time between quoting and supply was inevitably in excess of 60 days and that the 60 day limitation on quotations did not apply to the Plaintiff.'
  5. There is uncontested evidence of the custom that had developed between the plaintiff and the defendant that quotes beyond the 60-day time limit were honoured. However, there is also evidence that on occasion the quote had to be revisited. The parts of paragraph [11] objected to are stated too broadly in light of the underlying facts.
Plaintiff's case
  1. The plaintiff says that a practice had developed between the plaintiff and the defendant by which the plaintiff would first obtain a quote from the defendant before quoting on a job for a third party. Once the plaintiff was notified by the third party that it had secured the job, the plaintiff would advise the defendant and discuss when the glass would be required and whether the defendant would need to order some or all of the glass as a special order. The plaintiff would provide estimates of when the glass would be required depending on the rate of progress made on the project by the plaintiff's customer.[29] The plaintiff claims that at no time in the plaintiff's dealings with the defendant did the defendant rely on the 60-day limit for its quotations and increase the quoted price for the glass.[30]
  2. The plaintiff states that as a result of the defendant ceasing to trade it did not supply the glass it had quoted upon and agreed to supply to the plaintiff.[31] The plaintiff states it had committed to supply the glass to the third parties at that price.[32] As a result of the defendant ceasing to trade, the plaintiff had to source glass from a new supplier at a greater cost than that quoted by the defendant.[33]
  3. Mr Cirillo prepared a table described as 'copy of statement of loss' (Loss Table)[34] which he submits reflects those 'orders' for glass the defendant had quoted on and agreed to supply to the plaintiff.[35]
  4. The plaintiff submits that the Loss Table sets out what glass the plaintiff had agreed to supply third parties; what the original quote from the defendant was for that glass; who the plaintiff ultimately acquired the glass from; and, the difference between the cost of the glass quoted by the defendant and that charged by alternate suppliers which is described in the Loss Table as a 'Projected Loss'.[36] That 'Projected Loss' amounts to $200,220.62, which comprises the plaintiff's offsetting claim.
  5. The essence of the plaintiff's submission is that pursuant to a practice that had developed between the plaintiff and the defendant, the defendant had agreed to hold the glass in relation to which it had provided quotes and agreed to supply once the plaintiff advised the defendant that the third party had confirmed it had awarded the job to the plaintiff. In support of this practice the plaintiff deposes that the defendant would sometimes place special orders where the glass sought was not of a standard size and needed to be sourced by the defendant from overseas manufacturers.[37] By not providing the glass as was quoted by the defendant, the plaintiff suffered damage and loss by having to find alternative suppliers who charged more for the same product.[38]
Defendant's case
  1. In relation to the defendant's practice as to the provision of quotes, Mr Stewart deposes that: [39]
My practice in preparing a quote was to state when the prices quoted therein were valid until.

...

Throughout the operation of the Defendant's business, it was my practice to keep a quote open for acceptance at the price stated therein for as long as I felt comfortable being able to fulfill any order placed thereafter and still be able to purchase glass products to meet the order (at a price that would result in a profit for the Defendant).

Generally, however, I would state that a quote was open for 60 days.

If a client of the Defendant tried to place an order for glass products after the date of expiry of the quote I would have to re-quote the order to reflect the availability and current price of the product requested.
  1. The defendant deposes that if an order was placed by the customer and accepted by the defendant, the order would be fulfilled on the basis of the pricing provided for in the quote.[40] An order would be placed by the customer filling out a purchase order and emailing it to Mr Stewart.[41] An example of a purchase order placed by the plaintiff is attached to the Stewart Affidavit.[42]
  2. The defendant submits that the 60-day time limit on quotations is also reflected in the defendant's terms and conditions available on its website and referred to in the footer of the defendant's staff emails.[43]
  3. A copy of the defendant's terms and conditions relevantly include:[44]
Modern Glass Terms and Conditions (Agreement)

(1) Acceptance of Terms and Conditions
(a) This Agreement containing terms and conditions is deemed incorporated into and applies to all quotes, price lists, orders and purchases, accounts and invoices from Modern Glass (being Dconstruct Pty Ltd ACN 603 103 439 trading as Modern Glass (Modern Glass).
(b) Modern Glass offers to supply goods and products to you (You) as our customer on the terms and conditions of this Agreement, and You by placing an order with Modern Glass are bound by this Agreement whether in your capacity as individual, trust, partnership or body corporate.
(c) Modern Glass' confirmation of an order establishes this Agreement. When Modern Glass first accepts an order by you for goods and/or services or otherwise agrees to supply goods and/or services to You, You and Modern Glass enter into this Agreement which is comprised of the following:
(i) this document;
(ii) terms and conditions of any credit agreement You have with Modern Glass;
(iii) any expressly referenced written quote or price list provided; and
(iv) Modern Glass's warranties and product acceptance standards.

(2) Quotes and Price Lists
(a) All quotes provided to You are valid for 60 days from the date of issue, unless otherwise specified or notified.[45]
  1. Upon receipt of a purchase order Mr Stewart would determine whether the order could be filled and provide confirmation of acceptance of the order if that was the case.[46]
  2. The defendant submits that, aside from Mr Cirillo's assertions, there is no evidence before the court of the plaintiff's alleged 'custom' between the parties to disregard the 60-day limit on each quotation or that the quote from the defendant was an agreement to supply that glass.[47]
  3. The defendant further submits that this proposition is clearly contradicted by the defendant's evidence.[48] In support of this submission the defendant referred to an email exchange between the parties annexed to the Stewart Affidavit and marked 'DS5'. The chronology of this email exchange is as follows: [49]
(1) On 22 June 2021 the plaintiff requested a quotation for the supply of glass from the defendant.
(2) On 26 June 2021 the defendant sent a quotation to the plaintiff that explicitly stated 'Quote valid 60 days' (being until 25 August 2021).
(3) On 15 September 2021 the plaintiff asked the defendant whether they were still able to honour the quotation provided in June 2021.
(4) On 16 September 2021 the defendant advised the plaintiff that they could maintain the pricing quoted in June 2021 provided that the plaintiff provided a letter of intent before the end of October.
(5) On 10 February 2022 the plaintiff asked the defendant whether they could still hold the prices explaining the shop drawings had not been approved 'hence why we haven't placed any orders'. The defendant replied and asked if the plaintiff was in a position to pass on an increase.
(6) On 11 February 2022 the plaintiff stated they were not in a position to pass on an increase because they 'signed up a while back now'.
(7) On 13 April 2022 the plaintiff advised the defendant there were further delays in the project and requested the defendant re-quote the supply of glass for the project.
(8) On 21 April 2022 the plaintiff sent a follow up email to the defendant in relation to the re-quote.
(9) On 26 April 2022 the defendant wrote to the plaintiff that they 'would like to propose the builder make a payment to secure the stock on hand to service this order and [the defendant] hold the stock required until commencement', or in the alternative, provide a new quotation reflecting 'the considerable price increase from the supplier';
(10) The plaintiff agreed but wrote if the builder refused to accept the increase the plaintiff indicated he would drop the job and the defendant would have to sell the glass to someone else.
  1. Following the defendant issuing a Closure Notice, Mr Cirillo sent an excel spreadsheet to Mr Stewart with his glass requirements asking Mr Stewart to advise what glass he had so that he could check whether he would need to source glass from an alternative supplier. Mr Cirillo, in the course of these emails, suggested that the defendant sell its glass to an alternative supplier. Mr Stewart also deposed to various conversations with Mr Cirillo during the winding up of the business in which Mr Stewart agreed the defendant could consider any further request to supply glass during this period subject to stock availability. Mr Stewart deposes the defendant fulfilled all the orders placed by the plaintiff during the winding down period ending on 15 June 2022.[50]
  2. The defendant submits that Mr Cirillo's numerous references to 'orders' and 'special orders' throughout his affidavits are actually references to invitations from the plaintiff to the defendant to provide a quotation. The defendant submits that seeking a quote is not an 'order' and that the quote constitutes an invitation to treat subject to certain terms, primarily that the quote remains open for a certain fixed time.[51]
  3. The defendant submits that they are under no obligation to carry stock based on unordered quotes nor to hold a quote open for acceptance in perpetuity whilst a customer awaits the outcome of a tender, nor does any loss arise for the plaintiff by virtue of the defendant's failure to do so.[52]
  4. The defendant submits that any legal or factual basis to support the existence of a genuine offsetting claim is neither plausible nor coherent.[53]
Plaintiff's evidence in response
  1. Counsel for the plaintiff submitted that the custom that had been built up between the plaintiff and the defendant meant the defendant did not always require a purchase order.[54] The effect of the Plaintiff's Submissions is that, under the custom between the parties, the amount quoted to the plaintiff by the defendant would seemingly be held for the plaintiff indefinitely,[55] and the plaintiff, once it told the defendant it had been successful with the job, could rely on the quote for the supply of glass by the defendant at that price.
Disposition
  1. The plaintiff's claim to have the Statutory Demand set aside is that it has a 'counter claim, set off or cross demand' and not on the basis that there is any genuine dispute about the debt the subject of the Statutory Demand or that there is any defect in the Statutory Demand.[56]
  2. It is on this basis that I consider the Application before me.
  3. A quotation for the supply of goods or services is generally regarded as an invitation to treat rather than an offer.[57] Where an order for the goods at the quoted price is subsequently made, that itself is an offer which would be accepted by delivery of the ordered goods.[58]
  4. In Byrne Lewis v Colt Tollfab [2009] NSWSC 706, where the plaintiff was seeking to set aside a statutory demand, a question arose as to whether a quotation for the supply of glass louvres amounted to an offer capable of being accepted. Tamberlin AJ characterised such a quotation as an offer to treat,[59] observing that even if the quotation was construed as being an offer capable of acceptance, rather than an offer to treat, then the so-called acceptance in that case was in fact a counter-offer, in circumstances where it contained additional conditions to the conditions set out in the quote.
  5. Whether the quote from the defendant constitutes an invitation to treat or an offer capable of acceptance, there is insufficient evidence to find that the offers were accepted by the plaintiff. The plaintiff has not produced any purchase orders, emails, any documentation or deposed to any telephone conversation that confirmed the plaintiff would take the glass as quoted in relation to any of the jobs referred to in the Loss Table.
  6. While the plaintiff is correct that it does not need to provide all the evidence necessary to establish its claim, the authorities provide a standard to which I must be satisfied that a genuine offsetting claim exists. A 'genuine claim' connotes a plausible contention requiring investigation. While the court does not need to resolve the merits of the claim, the court does not have to accept 'matters of fact unsupported by evidence'.[60]
  7. The plaintiff's case relies on a series of assertions with no evidentiary foundation and has failed to discharge its onus to establish an offsetting claim.
  8. First, the plaintiff asserts that there was a 'custom' between the parties that the 60-day validity, or other period of validity expressly stated in the quotes provided by the defendant, was 'never enforced by the defendant'.[61]
  9. I do not accept the plaintiff's assertion that at no time in the plaintiff's dealings did the defendant rely on the 60-day provision in its quotations and increase the quoted price. The plaintiff has produced examples of quotes provided by the defendant that explicitly refer to specified periods of validity. In addition, all but one of the quotes produced, additionally state they are 'subject to Modern Glass' Terms and Conditions' in the email signature.[62] The defendant produced an email chain demonstrating an occasion in which the specified period of validity expired on a quote provided by the defendant and the defendant subsequently provided a new quote at a higher rate.[63] To this end, the Loss Table contains no dates of when the quotes listed were given.
  10. Secondly, the plaintiff asserts that the defendant did not insist on formal purchase orders.[64] The plaintiff has not provided any evidence to support this claim other than the facts deposed to by Mr Cirillo. On the other hand, the defendant has produced an example of a purchase order sent from the plaintiff to the defendant as an email attachment on 16 March 2022.[65] Separately, in an email from the plaintiff dated 10 February 2022, the plaintiff provides an explanation as to why it had not placed any orders pursuant to a quote given by the defendant.[66] Both are inconsistent with the assertion that orders were not required by the defendant.
  11. Even if the quotes had no limitation on the period for which they were valid and the defendant agreed to supply the glass once the plaintiff informed the defendant it had the job for which the glass was required, in relation to those jobs listed in the Loss Table there is no evidence that the plaintiff did inform the defendant it would purchase the glass the subject of those quotes. The only evidence the plaintiff has produced is the Loss Table, which Mr Cirillo compiled, and Mr Cirillo's evidence that the defendant had agreed to supply the glass.[67]
  12. Although it is not necessary to produce external corroboration of estimates, Austin J in Crontec Automotive Tooling v Allsteel [2006] NSWSC 555 observed that the court is unlikely to be satisfied that the standard has been reached if the plaintiff does no more than make an assertion of the amount of the offsetting claim, without providing any specific or particularised calculations to show how the final figure is reached.[68] No primary evidence has been produced of any of the quotes provided by the defendant or orders made by the plaintiff (in writing or otherwise) or invoices from the alternate supplier. There is no or insufficient evidence to be satisfied that there is a genuine claim that a binding contract was in existence to supply the glass referred to in the Loss Table.
  13. Thirdly, the plaintiff asserts that at the time that the defendant closed its business the plaintiff had many outstanding orders that the defendant did not fulfill.[69] If all the jobs in the Loss Table had been quoted for and orders placed at the time the defendant ceased to trade, they do not appear to be part of the list of the plaintiff's current glass requirements it submitted to the defendant by email dated 12 May 2022.[70] These current glass requirements were sent by the plaintiff in response to the Closure Notice and if there is any connection between those requirements and those jobs set out in the Loss Table, the connection is not evident on the face of the documents. The email of 12 May 2022 does not provide corroboration that the jobs in the Loss Table were the subject of contracts between the defendant and plaintiff. Finally, in the correspondence between the plaintiff and the defendant following the Closure Notice, the plaintiff appears to be negotiating with the defendant to sell its remaining glass to another supplier for the plaintiff to purchase. There is no reference in that correspondence to the outstanding orders in the Loss Table.
Conclusion
  1. There is insufficient evidence to support an offsetting claim other than the undated jobs the plaintiff has listed in the Loss Table. At its highest the Loss Table describes the difference in price between glass that could be provided by the defendant and alternate suppliers with an unsubstantiated assertion the defendant agreed to supply this glass pursuant to the practice that had developed.
  2. Meticulously detailed evidence in support of a claim to set aside a statutory demand on the basis of an offsetting claim is not required. I am not satisfied that the plaintiff has adduced sufficient evidence to establish a plausible and coherent basis for its claim.
  3. The plaintiff's application to set aside the defendant's statutory demand dated 28 April 2023 is dismissed.
  4. I will allow an extension of time to comply with the statutory demand. I will hear the parties as to the form of orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

BR
Associate to Acting Master McDonald

27 FEBRUARY 2024

[1] First Cirillo Affidavit [8].
[2] Stewart Affidavit [5]; First Cirillo Affidavit [9].
[3] Stewart Affidavit [25].
[4] First Cirillo Affidavit [15], 'MVC 5'.
[5] First Cirillo Affidavit [14].
[6] First Cirillo Affidavit [11].
[7] Stewart Affidavit [33].
[8] Stewart Affidavit [35].
[9] Stewart Affidavit [37].
[10] First Cirillo Affidavit [20].
[11] First Cirillo Affidavit [22].
[12] First Cirillo Affidavit [24], 'MVC 7'; Stewart Affidavit [42] - [44].
[13] First Cirillo Affidavit 'MVC 7'; Stewart Affidavit [45].
[14] First Cirillo Affidavit [26], 'MVC 8'.
[15] First Cirillo Affidavit [4] - [5], 'MVC 2', 'MVC 3'.
[16] Stewart Affidavit 'DS9'.
[17] ts 23 (8 September 2023).
[18] First Cirillo Affidavit [25].
[19] Third Cirillo Affidavit [9] - [10], 'MVC 10'.
[20] First Cirillo Affidavit [31] - [32].
[21] Third Cirillo Affidavit [16].
[22] ts 22 (8 September 2023).
[23] First Cirillo Affidavit [12].
[24] Plaintiff's Submissions [10] the second time [10] appears.
[25] ts 23 (8 September 2023).
[26] The Act, s 459H(f).

[27] Edge Technology Pty Ltd v Lite-On Technology Corp [2000] NSWSC 471; (2000) 34 ACSR 301 [27] - [28].
[28] Hvar Steel Services [2017] WASCA 63 [37] Dream Money  [2016] WASCA 193  [60] Royal Premier Pty Ltd v Taleski [2001] WASCA 48 [57].
[29] Third Cirillo Affidavit [13].
[30] Third Cirillo Affidavit [14].
[31] First Cirillo Affidavit [16].
[32] First Cirillo Affidavit [18].
[33] First Cirillo Affidavit [20] - [21].
[34] Third Cirillo Affidavit 'MVC 10'; ts 16 (8 September 2023).
[35] ts 16 (8 September 2023).
[36] Stewart Affidavit 'MVC 10'; ts 16 (8 September 2023).
[37] Third Cirillo Affidavit [2] - [4].
[38] Plaintiff's Submissions [20] - [21].
[39] Stewart Affidavit [8], [12] - [14].
[40] Stewart Affidavit [15].
[41] Stewart Affidavit [16].
[42] Stewart Affidavit 'DS2'.
[43] Stewart Affidavit [17] - [18].
[44] Stewart Affidavit [18], 'DS3'.

[45] Stewart Affidavit [18], 'DS3' (22).
[46] Stewart Affidavit [19].
[47] Defendant's Submissions [19].
[48] Defendant's Submissions [19].
[49] Stewart Affidavit [21] - [23], 'DS5'.
[50] Stewart Affidavit [35].
[51] Defendant's Submissions [12] - [13].
[52] Defendant's Submissions [14] - [15].
[53] Defendant's Submissions [20].
[54] ts 17 (8 September 2023).
[55] Plaintiff's Submissions [18]; ts 17 (8 September 2023).
[56] Defendant's Submissions [2].
[57] Re Senator Webster [1975] HCA 22; (1975) 132 CLR 270; (1975) 6 ALR 65, 74; Harvey v Facey [1893] AC 552.
[58] Re Senator Webster (74).
[59] Byrne Lewis v Colt Tollfab [18] - [20], [24] - [25].
[60] Kiewit Australia Pty Ltd v New Energy Corporation Pty Ltd [2018] WASCA 180, [50].
[61] Plaintiff's Submissions [18]; Third Cirillo Affidavit [14].
[62] First Cirillo Affidavit [13], 'MVC 4'.
[63] Stewart Affidavit 'DS5'.
[64] ts 19 (8 September 2023).
[65] Stewart Affidavit [16], 'DS2'.
[66] Stewart Affidavit, 'DS5' (31).
[67] First Cirillo Affidavit [22]; ts 21.
[68] Crontec Automotive Tooling v Allsteel [34].
[69] Plaintiff's Submissions [20] - [21].
[70] Stewart Affidavit 'DS7'.

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