Whether there is a genuine dispute as to existence or amount of debt
Whether there is an offsetting claim
Quick Take
1The issuance and payment of invoices does not, of itself, evidence the existence of a contractual agreement between the parties or the terms of any such agreement, and is insufficient to establish a debt as due and payable for the purposes of a statutory demand.
2Where amounts have been withheld as retention in payment schedules under the Building and Construction Industry (Security of Payment) Act 2021 (WA) and the claimant has not previously challenged those retentions by adjudication or otherwise established a basis for the amounts being due and payable, a genuine dispute as to the existence of the claimed debt may arise.
3An offsetting claim based on costs of rectifying defective work and completing abandoned subcontract works need not be precisely quantified; it suffices that the applicant provides evidence of a plausible and coherent basis for quantifying the claim showing it exceeds the demanded amount.
