Alda Constructions Pty Ltd v Car Parking Solutions Pty Ltd
[2012] VSC 145
•20 April 2012
p
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
CORPORATIONS LIST
S CI 2012 00163
| ALDA CONSTRUCTIONS PTY LTD (ACN 103 148 572) | Plaintiff |
| v | |
| CAR PARKING SOLUTIONS PTY LTD (ACN 122 992 474) | Defendant |
---
JUDGE: | GARDINER AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 April 2012 | |
DATE OF JUDGMENT: | 20 April 2012 | |
CASE MAY BE CITED AS: | Alda Constructions Pty Ltd v Car Parking Solutions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 145 | |
---
CORPORATIONS – External administration – Application to set aside statutory demand pursuant to Section 459G of the Corporations Act2001 (Cth) – Plaintiff’s material consisting of unsupported assertion – Defendant’s position supported by contemporaneous documents – Plaintiff fails to discharge onus of establishing that there is genuine dispute – Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G S Lucas | Belleli King & Associates |
| For the Defendant | Mr S Minahan | Hicks Oakley Chessell Williams |
HIS HONOUR:
The plaintiff, Alda Constructions Pty Ltd (“Alda”) makes application by an originating process filed 16 January 2012 to set aside a statutory demand dated 21 December 2011, served on it by the defendant, Car Parking Solutions Pty Ltd (“Car Parking Solutions”) on 9 January 2012.
The statutory demand claims that Alda is indebted to Car Parking Solutions for $49,720 pursuant to a contract between them dated 27 October 2012 for the supply and installation of a car stacker system.
The originating process states that the application is made pursuant to s 459G and s 459J of the Corporations Act2001 (Cth). The application under s 459G involves a contention that there is a genuine dispute between Alda and Car Parking Solutions in respect of the debt the subject of the demand. There is no material put forward in Alda’s evidence or submissions which would support a contention that the demand should be set aside for “some other reason” under s 459J.
Alda relies on two affidavits of Paul Webberley sworn 16 January and 27 January 2012. Car Parking Solutions relies on an affidavit of Leon Roy Weston sworn 3 February 2012.
On 8 February 2012, orders were made which required Alda to file and serve any affidavits in reply to Car Parking Solutions’ evidence by 21 March 2012. At the hearing of the application on 17 April 2012, Alda sought to file an affidavit sworn by Adrian Sabastian Corsello sworn 16 April 2012 but for the reasons given below, I will not permit Alda to rely upon that affidavit.
Legal Principles
The approach to be taken in the consideration of applications under s 459G of the Act is well settled. It is comprehensively surveyed in the decision of the Court of Appeal in TR Administration v Frank Marchetti & Sons Pty Ltd.[1] Dodds-Streeton AJ made reference to the statement by McLelland CJ in Eyota v Hanave Pty Ltd,[2] one of the earliest authorities considering the issue, where His Honour stated:
It is however, necessary to consider the meaning of the expression ‘genuine dispute’ where it occurs in s 450H (sic). In my opinion that expression connotes a plausible contention requiring investigation, and raises much the same sorts of considerations as the ‘serious question to be tried’ criterion which arise on an application for an interlocutory injunction or for the extension or removal of a caveat. 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 …’.
[1](2008) 66 ACSR 67 (“Marchetti”).
[2](1994) 12 ACSR 785.
Her Honour made similar observations as a member of the Trial Division of this Court in Powerhouse Australasia Pty Ltd v Viarc Pty Ltd,[3] where she observed at [49]:
The dispute or offsetting claim should, as has been recognised, have some objective existence, and the [plaintiff] bears the onus of establishing the genuineness of the dispute or offsetting claim.
[3][2006] VSC 508.
In the decision of the Full Court of the Federal Court of Australia in Spencer Constructions Pty Ltd v G&M Aldridge,[4] it was observed that:
For a genuine dispute to exist, it must be ‘a bona fide and truly existing fact’, and the grounds for alleging its existence must be ‘real and not spurious, hypothetical or misconceived.’ The dispute should have 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.
[4](1997) 76 FCR 452 at 454.
In JJMMR Pty Ltd v LG International Corporation,[5] the Court of Appeal of the Supreme Court of Queensland described the task of the Court as being to decide was whether there is a dispute or offsetting claim “such as would warrant subsequent adjudication.”
[5][2003] QCA 519.
My task in this application is to ascertain whether there are genuine disputes in respect of the debt the subject of demand, not to express any opinion which may embarrass any other Court subsequently considering the matter.[6] As Robson J stated in Rhagodia Pty Ltd v National Australia Bank Ltd[7]:
It is often possible to discern the spurious, and to identify mere bluster or assertion. But beyond the perception of genuineness (or 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 (and not the likely result of it).”
[6] Spacorp Australia Pty Ltd v. Myer Stores Ltd (2001) 19 ACLC 1270 at [3]-[4]
[7][2008] VSC 195
Factual Background
Alda is a builder and was involved in the construction of a development by Bay Road Pty Ltd (“the Developer”), of four new apartments and the refurbishment of 26 apartments at 62-72 Bay Road, Sandringham, Victoria.
The Developer has since gone into administration under Part 5.3A of the Corporations Act.
Mr Webberley, in his affidavit of 16 January 2012, deposes that the Developer dealt with Car Parking Solutions in negotiating and entering into the contractual arrangements for the supply of the equipment. Mr Webberley asserts that Car Parking Solutions was aware that Alda was not involved in ordering the equipment, nor for the payment of any of the instalments in payment of the purchase price.
The purchase price for the system was $248,600, payable by three instalments. The first instalment, of $124,300, was effected by a finance arrangement which was put in place between the Developer and Car Parking Solutions. The second instalment, of $74,580, was also the subject of similar arrangements. The third instalment, which has not been paid and which is the subject of the statutory demand, was for $49,720. Mr Webberley states that the third instalment was only sought to be recovered from Alda when it became apparent that the Developer was experiencing financial difficulties.
Mr Webberley, in his affidavit of 27 January 2012, states that the developer, by its director, Mr Corsello, requested Alda to sign a document to effect the order of the system. That document is on Car Parking Solutions letterhead and is headed “Letter of Offer to Supply and Install Combilift Car Stacker System” (“the Letter of Offer”). In the segment of that document headed Project Details, in the place allowed for identification of the “company”, i.e. the offeree the subject of the letter of offer, Alda is nominated. The relevant contact at Alda is identified as “Paul” (presumably Mr Webberley). The document then stipulates the three instalments by which the price for the supply and installation of the unit is to be paid for under the heading Price and Payment Terms. At the foot of the document, under bold capitalised words stating “please sign and return if the above details are acceptable”, Mr Webberley has signed as a director and dated the document 27 October 2010.
Mr Webberley also exhibits a document entitled “Deposit Funding Deed” which is undated but which is executed by Mr Webberley on behalf of Alda. The parties to that deed are the lender to the project, Australian Scholarships Group Friendly Society Limited, the Developer, Alda (which is identified as “the Builder”) and Car Parking Solutions (which is identified as “the Sub-Contractor”). In the recitals to that deed it states, among other things:
….
C.The Developer has engaged the Builder to carry out the Works.
D.The Builder has subcontracted the Sub-Contract works to the Sub-Contractor pursuant to the Sub-Contract Agreement.
E.Pursuant to the Sub-Contract Agreement, the Sub-Contractor requires the Builder to pay the deposit to the Sub-Contractor prior to the commencement of the Sub-contract works by the Sub-Contractor.
F.The Lender has at the request of the Developer and the Builder agreed to pay the net deposit to the Sub-Contractor as part of the facility on the terms and conditions set out in this document.
Clause 1.1 of the Deposit Funding Deed defines “Sub-Contract Agreement” as meaning:
… the agreement to perform the Sub-Contract Works at the Site a copy of which agreement is annexed to the Schedule.
and “Sub-Contract Works” as meaning:
… the supply and installation of a Combilift Car Stacker System at the Site.
Clause 2 is concerned with payment of the deposit. Clause 2.2 states:
ASG to pay net deposit
Subject to the terms and conditions set out in this document, the lender agrees to pay the net deposit directly to the subcontractor. (emphasis added)
Clause 2.3 provides:
Developer to Pay GST
The Developer undertakes to the lender and to the subcontractor that it will pay the GST component of the deposit to the subcontractor.
The schedule to the Deposit Funding Deed attaches a copy of the Letter of Offer signed by Mr Webberley as director of Alda, together with a copy of the standard terms and conditions for the supply, delivery and installation of the equipment under the heading “Car Parking Solutions”.
In his second affidavit, as in the first, Mr Webberley asserts that (i) Car Parking Solutions was “fully aware that the Developer was and would be responsible for costs associated with the order and not the plaintiff” and that (ii) Alda’s defence is that it is not liable for or responsible for the alleged debt and that there was never any agreement between Alda and Car Parking Solutions in respect of the supply or delivery of any goods or services. He states that it is his understanding that the second instalment was paid directly to Car Parking without any involvement of Alda and that Car Parking Solutions has undertaken all negotiations with the Developer in an endeavour to recover the third instalment but because of the insolvency of the Developer, has now chosen to pursue Alda for payment.
As I have said, Alda also sought to rely on an affidavit of the director of the Developer, Mr Corsello. The reception of Mr Corsello’s affidavit was opposed by Mr Minahan. No reason was proffered as to why that affidavit was not sworn and filed in compliance with the orders made on 8 February 2012. In the absence of such an explanation, I refuse the application to rely on that affidavit but even if it were received into evidence, I do not consider that it would assist Alda’s position. It merely states that Mr Corsello agrees with Mr Webberley’s evidence and that “…. I…accept liability of the debt owing to the defendant in the proceeding”. There is no elaboration in Mr Corsello’s affidavit as to what the financial records of the Developer reveal about the subject transaction. The Report as to Affairs in the insolvency administration of the Developer is not exhibited. That document would have revealed if the Developer considered itself indebted to Car Parking Solutions. Alternatively, there is a possibility that it may have revealed a liability by the Developer to Alda for the liability that Alda has contracted with Car Parking Solutions. There is no evidence as to who, if anyone, has proved in the insolvency administration of the Developer for the subject debt. It is to be remembered that Alda bears the onus of establishing the existence of a genuine dispute in the application and it had ample opportunities to put on such evidence.
In his affidavit, Mr Weston, who is a director of Car Parking Solutions, states that he was approached by the Developer to supply and install the system at the development. After the price of the works and Car Parking Solutions’ terms and conditions were determined, the Developer advised that the nominated builder for the development was Alda. Mr Weston contacted Mr Webberley of Alda who informed him that the party to be nominated on Car Parking Solutions’ letter of offer should be Alda.
Mr Weston states that Car Parking Solutions rendered three invoices for the instalments due under the contract which were all directed to Alda. At no time did any person on behalf of Alda object to it named on such invoices.
In his submissions, Mr Lucas of Counsel contended that Mr Webberley’s signature on the document does not identify whom the purchaser is intended to be and that can only be determined by evidence at a conventional inter partes trial. I do not agree. The document itself identifies Alda as the contracting party and Mr Webberley signs it in his capacity as a director. In my view, the recitals and terms of the Deposit Funding Deed support the position in this regard.
Mr Lucas also submitted there is no evidence that the 20 per cent final balance is due at all because it is said to be only due upon commissioning. This matter is not “raised” in the affidavits filed by Mr Webberley and as such, it cannot now be contended by Alda.[8]
[8]Graywinter Properties Pty Ltd v Gas and Fuel Corp Superannuation Fund (1996) 21 ACSR 581.
In his submissions, Mr Minahan of Counsel states that there is uncontested evidence that Alda entered into the contract with Car Parking Solutions by its director, Mr Webberley signing the Letter of Offer as director of Alda, which nominated Alda as the contracting party and which on its face accepted liability to make three payments, including the payment claimed in the statutory demand. Mr Minahan also made reference to the Deposit Funding Deed and drew attention to recitals D, E and F which are recited above.
Mr Minahan submits that it is incumbent on Alda to provide a sufficiently particularised and substantiated basis to allow the Court to consider it plausible that these clear contractual obligations and acknowledgments might be gone behind. Mr Minahan says that there are two relevant legal scenarios which might affect the documented liability in the contract. The first is that Alda contracted as an agent for a disclosed principal and secondly, that an estoppel arises by reason of representations by Car Parking Solutions upon which Alda relied to its detriment to the effect that despite the express terms of the contract, Car Parking Solutions would look to the Developer and not Alda for payment.
I agree with Mr Minahan’s submissions that Alda, which bears the onus of establishing a genuine dispute, does not support its assertion by any evidence that Car Parking Solutions was aware that the principal contracting party was the Developer and not Alda, that is that Alda was contracting on behalf of a disclosed principal. I also agree that there is no evidence to support a possible estoppel and the point was not pressed by Alda. Mr Webberley’s evidence is, for the large part, mere assertion.
Mr Webberley does not explain why it is that he has signed the letter of offer as a director of Alda, other than state that he was requested to. His signing of the documents as a director of Alda is consistent with the position that Alda has subcontracted with Car Parking Solutions for the provision of the equipment as part of its arrangements for the construction and refurbishment of the development and that it would have financial recourse to the Developer for payment in due course under the terms of its contract with the Developer.
Mr Minahan also points out that the position only deteriorates for Alda when the affidavit of Mr Weston is considered. That affidavit, which exhibits the invoices, has not been satisfactorily responded to, there is an absence of any material directed to why the invoices were directed to Alda without complaint.
In my opinion, the appearance of the word “directly” in clause 2.2 if the Deposit Funding Deed supports the scenario contended for by Car Parking Solutions, that is that the contract for the supply of the equipment is between Alda and Car Parking Solutions. Clause 2.2 must be assumed to have “work to do”. If such a provision had not been agreed to in the Deposit Funding Deed, Alda would have, by reason of the terms of the Letter of Offer, have been obliged to pay the deposit to Car Parking Solutions. Under the Deposit Funding Deed, the parties have contracted to do otherwise, and for the Developer to pay the sub‑contractor “directly”. There would otherwise have been no liability for the Developer to pay the net deposit as such liability rested with Alda under the Letter of Offer signed by Mr Webberley on 27 October 2010.
Similarly, clause 2.3 varies the position which would otherwise prevail in respect of the GST liability arising from the Letter of Offer. If clause 2.3 did not make provision for GST to be paid to Car Parking Solutions by the Developer, Alda would have been obliged to fund it, because the transaction gives rise to a taxable supply by Car Parking Solutions to Alda. For commercial considerations, the parties contracted to vary the conventional position by the Deposit Funding Deed. Liability would still reside with Alda under the relevant taxation legislation for payment of the GST but the Deposit Funding Deed provided that the developer fund the payment and this is confirmed by the tax invoices generated by Car Parking Solutions directed to Alda and without complaint.
The fact that the first two payments to be made under the Letter of Offer were funded by the Developer is not relevant to the identity of the contracting parties and who was ultimately liable to make the payment.
In my view, Alda, which bears the onus of establishing the existence of a genuine dispute, has not, on the evidence, established that there is a plausible contention requiring further investigation such as to warrant the demand being set aside. My view in that regard is influenced by the contemporaneous documentation, in particular the Letter of Offer signed by Mr Webberley and the tax invoices generated pursuant to it without complaint. It is also supported by the recitals and the terms of the deed which are referred to above.
The application is dismissed with costs.
---
0
2
0