A party disputing a statutory demand must provide credible evidence to challenge the creditor status; failure to present adequate defenses results in liability for outstanding debts.

Enc. 6 is an ex-parte application for an injunction to restrain the Defendant from filing a Winding-Up petition on the basis of the statutory notice of demand dated 6th October 2009 served on the Plaintiff on 7th October 2009 by the Defendant. Enc. 6 was filed pursuant to the originating summons issued by this Court (Enc. 4). The primary relief in the originating summons is for a declaration that the Defendant's statutory demand is disputed and consequently the Plaintiff not a creditor for the purposes of sections 217 and 218 of the Companies Act . An ex-parte order valid for 21 days was granted in terms of Enc. 6 by this Court on 27th October 2009. Enc. 12 is a summons filed by the Defendant to set aside the ex-parte order made by this Court.

The Defendant upon being served with the ex-parte order and Enc. Iprompty applied to set aside the ex-parte order (see Enc. 12). Additionally, the Defendant on 12th November 2009, served on the Plaintiff notice of a Counter-claim pursuant to O. 28 r. 7 of the RHC 1980. An oral application for judgment for the Counter-claim in the sum of Euro 334, 840.49 based on the contents of the affidavit filed on behalf of the Defendant (Enc. 11) was made by Counsel for the Defendant. Both Counsel orally applied to the Court to make a decision on Encs. 4 and 11. Counsel for the Plaintiff indicated to the Court that he had no objection to the Court awarding judgment on the Counter-claim if the Court upon setting aside the ex-parte order, was satisfied that the Defendant had proved its Counter-claim.

The thrust of the Defendant's application to set aside the ex-parte order and seek judgment is that the sum of Euro 334, 840.49 has been due and owing to the Plaintiff for some period of time; that the debt is undisputed and consequently the Defendant, a creditor for the purposes of Secs. 217 & 218 of the Companies Act . As an additional measure, the Defendant also relies on non disclosure of a material fact to set aside the ex-parte order. The non disclosure consisting of the failure of the Plaintiff to disclose to the Court in the affidavit filed in support for the ex-parte relief that, at the time of the hearing of Enc. 6, the Plaintiff was facing another Winding-Up petition filed by a creditor known as Time Automation & Management Services Sdn. Bhd. The Defendant had filed a notice of intention to appear in this Winding-Up petition.

The first issue for determination by this Court is whether there exists sufficient credible contemporaneous documentary evidence that the Defendant is owed the sum of Euro 334, 840.49 by way of professional fees. If this Court determined this issue in favour of the Defendant, then, it follows that judgment should be entered in favour of the Defendant for the sum of Euro 334, 840.49 and the injunction restraining the filing of the Winding-Up petition refused since, in that event the Defendant is a creditor of the Plaintiff.

The brief facts relevant to the issue are that the Defendants are a firm of solicitors. It is not in dispute that they had provided professional legal services to the Plaintiff in connection with an arbitration between the Government of the Republic of Madagascar and the Plaintiff. The arbitration proceedings were held in an international arbitration, in Paris. The Defendant alleged that the Plaintiff had executed a power of attorney in the French language dated 3rd December 2007 authorising the Defendant to represent them in the arbitration (see Exh. AV 1 to Enc. 13). As the arbitration was protracted, the Defendant periodically rendered the Plaintiff invoices for its services. The Defendant's Counter-claim for Euro 334, 840.49 forms the subject matter of four invoices bearing the dates of 1st April, 14th May, 24th July and 15th September 2008. The first invoice dated 1st April 2008 was settled by the Plaintiff but the other invoices remained outstanding. Each invoice contained a brief summary of the work undertaken during the relevant per