BRC Group Pty Ltd v Watagan Park Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0136

BRC GROUP PTY LTD (ACN 620 080 659) AS TRUSTEE FOR THE BRC GROUP UNIT TRUST	Applicant
v
WATAGAN PARK PTY LTD (ACN 128 663 749) AS TRUSTEE FOR THE CLANCY FAMILY TRUST MKT2	Respondent

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JUDGES:	KENNEDY, ORR and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2025
DATE OF JUDGMENT:	14 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 36
JUDGMENT APPEALED FROM:	[2024] VSC 563 (Barrett AsJ)

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CORPORATIONS – Statutory demand based on loan agreement – Application to set aside demand pursuant to s 459G of the Corporations Act 2001 (Cth) – Applicant’s affidavit filed with application alleged that loan agreement was not finalised – Applicant seeks to raise additional ground of dispute that there was a loan on different terms with a different repayment date which had not arisen (‘additional dispute’) – Whether the initial affidavit was an affidavit ‘supporting the application’ with respect to the additional dispute – Leave to appeal refused.

Corporations Act 2001 (Cth) ss 9, 459G, 459H.

Sceam Construction Pty Ltd v Clyne (2021) 64 VR 404; Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 330; GoConnect Ltd v Sino Strategic International Ltd (in liq) [2016] VSCA 315; NA Investments Holdings Pty Ltd v Perpetual Nominees Ltd [2010] NSWCA 210, considered.

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Counsel
Applicant:		Dr O Bigos KC with Mr PR Miller
Respondent:		Mr SL Freire
Solicitors
Applicant:	Colin Biggers & Paisley
Respondent:	Kalus Kenny Intelex

KENNEDY JA
ORR JA
KENNY JA:

On 12 March 2024 the respondent served a statutory demand on the applicant which alleged that the applicant owed it a debt pursuant to a loan agreement. The applicant applied to set that statutory demand aside. That application was supported by an affidavit filed within the relevant statutory period of 21 days after the demand was served (the ‘21 day affidavit’). On 11 September 2024, an associate judge dismissed the applicant’s application to set aside the demand.
The judge found that the 21 day affidavit raised a ground of dispute that there was no concluded loan agreement that would give rise to the alleged debt. He rejected the submission that it raised an additional ground of dispute that the terms of the loan agreement differed from that contended by the respondent. More particularly that, under those different terms, the repayment date had not arisen because the loan was not to be repaid until the respondent was able to elect to exercise its equity option under an equity right agreement (the ‘additional dispute’).
The applicant now seeks leave to appeal on the following proposed grounds:
(a)the judge erred in holding that there was no serious question or plausible contention on a ground raised in the 21 day affidavit;
(b)the judge erred in holding that, if there were a serious question or plausible contention on a ground raised in the 21 day affidavit, the dispute was not genuine; and
(c)further or alternatively, the judge erred in failing to hold that there was a genuine dispute as to whether the debt on which the statutory demand was based was due and payable.
The applicant accepted that it could it not succeed absent success on proposed ground one.
In relation to proposed ground one, the applicant did not seek to challenge the judge’s finding that there was no serious question raised on the basis that there was no concluded agreement. Rather, it submitted that the judge erred in finding that the 21 day affidavit was confined to that dispute and did not raise the additional dispute. Its submission was that the 21 day affidavit was an affidavit ‘supporting the application’ in relation to the additional dispute for the purposes of s 459G(3)(a) of the Corporations Act 2001 (Cth) (the ‘Act’).
For the following reasons, we reject the applicant’s submission that the 21 day affidavit should be properly characterised as an affidavit ‘supporting the application’ in relation to the additional dispute. We have accordingly refused leave to appeal.

Background

The applicant is the trustee of the BRC Group Unit Trust. Paul Docherty and Mark Dinnison are its directors and together own all its shares. Sean Clancy is the sole director of, and shareholder in, the respondent, Watagan Park Pty Ltd.
On 12 March 2024, the respondent served a creditor’s statutory demand for payment of a debt on the applicant under s 459E(2)(e) of the Act. The statutory demand stated that the applicant owed the respondent the sum of $1,044,372.43, being the total of the amounts described in the Schedule to the statutory demand, and that the amount was due and payable. The Schedule described the debt as being constituted by a principal sum of $900,000 together with interest as at 31 January 2024 of $144,372.43. Details of the calculation of the interest were included.
Mr Clancy swore an affidavit of 12 March 2024 accompanying the demand. He stated that the debt of $1,044,372.43 was owing to the respondent pursuant to a loan agreement dated 1 January 2021, as described in the Schedule to the statutory demand. He swore that this debt was due and payable and that he believed that there was no genuine dispute about the existence or amount of any part of the debt.
By way of originating motion filed on 2 April 2024, the applicant applied to set the statutory demand aside within the requisite statutory time period of 21 days after service of the demand.[1] The application was supported by the 21 day affidavit, being an affidavit of Mark Dinnison of the same date. The contents of that affidavit take on some significance given the issues raised on this application.
[1]Corporations Act 2001 (Cth) ss 9, 459G(2).
After making reference to the debt the subject of the statutory demand (being the ‘Alleged Debt’) and the affidavit in support of the statutory demand, the 21 day affidavit relevantly reads as follows:
11.It is the position of the Plaintiff that:
(a)the Alleged Debt is not payable to the Defendant as demanded; and
(b)there is a genuine dispute as to the amount of the Alleged Debt as alleged.
12.The facts and correspondence upon which the Plaintiff relies in support of the existence of a genuine dispute are set out below.
Background
13.The amount of $900,000 was an equity investment by Sean Clancy, beginning on or around 1 January 2021. This was to be accompanied [sic] a consultancy agreement on the same date (Consultancy Agreement). The terms of which are confidential.
14.In order to obtain an improved purchase price, an equity right agreement was arranged, the funds were not advanced by the Defendant as agreed in early January 2021.
15.It was intended that the maturity dates of the loan agreement and the Consultancy Agreement be aligned to ensure that when the loan ended the equity component would commence.
16.The Defendant then requested that BRC Group enter into a loan agreement. This loan agreement was never finalised and as such, a final agreement as to the terms of the loan agreement was never reached.
17.In as late as September 2021, the parties were still engaging in negotiations about the terms of the loan agreement by email. A true copy of the email chain is available from page 29 of MD-1.
Payments made to BRC Group
18.The BRC Group received the following payments:
(a)$250,000 on or about 3 September 2021.
(b)$150,000 on or about 30 November 2021.
(c)$250,000 on or about 31 August 2022.
19.In the Affidavit in Support, Mr Clancy deposes that a $250,000 payment was made on 30 June 2022 to BRC Group (Donation). This is not correct.
20.The Donation was made to the University of Melbourne. It was intended that the [sic] this amount be an offset against the ultimate equity right payment that would become due.
21.The Plaintiff alleged that the Alleged Debt is due and payable pursuant to a purported loan agreement dated 1 January 2021 (Alleged Loan Agreement). The Alleged Loan Agreement was never entered into and the parties never finalised the terms of this agreement.
22.I note that:
(a)the dates Watagan Park allege that it advanced the amounts to the Company within the Statutory Demand are different from the dates alleged within the Letter.
(d)Schedule 3 of the Alleged Loan Agreement (as noted below) had proposed that the amounts (highlighted in yellow) would be payable on different dates than actually advanced at paragraph 19 above. Watagan Park was in breach as it agreed to advance the funds.
“Schedule 3 — Further Advances
During the Second Advance Period, further advances broadly as follows:
(a)An advance of A$150,000 on or about the month of September 2021;
(b) An advance of A$150,000 on or about the month of October 2021;
(c) An advance of A$150,000 on or about the month of November 2021; and
(d) An advance of A$200,000 on or about the month of December 2021”;
(e)The alleged Interest Rate and Default Interest Rate (Total Interest Amount) sought by Watagan Park was not agreed between the parties. A true copy of the email chain is available from page 29 of MD-1. In light of the dispute raised in relation to the Donation and the Total Interest Amount, the total amount of the debt, as described in the Schedule to the Statutory Demand is not correct.
(f)I am informed by Ms Mustafa-Ay that section 459J(1)(a) of the Act states that a statutory demand may be set aside if the Court is satisfied that because of a defect in the demand, substantial injustice will be caused unless the demand is set aside. A defect in relation to a statutory demand is defined to include an irregularity, a misstatement of an amount or total, a misdescription of a debt or other matter and a misdescription of a person or entity.
23.BRC Group disputes that the interest is due and payable on the Alleged Debt as alleged,[2] and that even if interest is payable, which is not admitted, it was not agreed between BRC Group and Watagan Park that it would be calculated in the manner set out in the schedule to the Statutory Demand.
24.The Repayment Date of 23 December 2021[3] formed part of the terms of the Alleged Loan Agreement but was not ultimately agreed, given the timing of the advance.
25.In all of the above circumstances there is a genuine dispute as Watagan Park seeks to rely on the Alleged Loan Agreement in repayment of the Alleged Debt.
[2]The applicant did not press a submission that there was a genuine dispute as to the interest payable before the judge: BRC Group Pty Ltd (ACN 620080659) as trustee for BRC Group Unit Trust v Watagan Park Pty Ltd (ACN 128663749) as trustee for Clancy Family Trust MKT2 [2024] VSC 563 (‘Reasons’), [86].
[3]This date was said to be a typographical error, with the correct date being 31 December 2023.
…
Application to set aside Statutory Demand
27.I believe that:
(a)the Alleged Debt is not payable by the Plaintiff as demanded; and
(b)there is a genuine dispute as to the amount of the Alleged Debt as alleged.
28.On the basis of the matters set out in this affidavit, I request that this Honourable Court set aside the Demand on the grounds set out in the Originating Process filed on behalf of the Plaintiff in this proceeding.
The following documents were exhibited to the 21 day affidavit, collected in a single document (‘MD-1’):
(a)Documents containing company details, including credit rating and ASIC organisation extracts, of the applicant and the respondent;
(b)The statutory demand and accompanying affidavit in support of Mr Clancy;
(c)Emails between the parties during September and October 2021;
(d)An unsigned loan agreement dated 1 January 2021 between the applicant and the respondent (the ‘1 January document’).
The emails contained in MD-1 generally record negotiations about the precise terms of the agreement, consistent with Mr Dinnison’s statement that the parties ‘were still engaging in negotiations about the terms of the loan agreement by email’.[4] However, the applicant made particular reference to an email of 25 September 2021 from Mr Dinnison to Mr Clancy (the ‘25 September email’), which states, inter alia:
The attached loan agreement secures the loan amounts being paid. The repayment date (Dec 2023) aligns with the equity right conversion date. Interest is payable quarterly at 8% pa.
I have proposed further advance dates in schedule 3, please do not hesitate to amend as required.
[4]21 day affidavit, [17].
The terms of the 1 January document (also annexed in MD-1) make provision for a total amount of $900,000 to be advanced. The document specifies an interest rate of 8 per cent per annum, with a default interest rate of 10 per cent (cls 1.1, 3.1). It includes an obligation to repay the relevant ‘outstanding balance’ on the ‘repayment date’ which is defined as 31 December 2023 (cls 1.1, 4.1).
However, although the 21 day affidavit makes reference to an ‘equity right agreement’ in paragraph 14, no such agreement was exhibited, or even described.
Following the filing of the 21 day affidavit, the applicant filed further affidavits[5] and made detailed submissions. Although those affidavits did not annexe any equity right agreement, the applicant clearly sought to raise the additional dispute.
[5]The affidavits of Paul Docherty dated 3 June 2024, 18 July 2024 and 9 August 2024.
The equity right agreement was in fact adduced by an affidavit filed by the respondent and sworn by Mr Clancy on 20 June 2024. In that affidavit, he states that he entered into a consultancy services agreement with BRC Management Services Pty Ltd in January 2021 whereby he agreed to provide services to that entity. He also alleges that, by letter dated 1 January 2021, the applicant invited him (not the respondent) to apply for an equity right in a trust of which the applicant was a corporate trustee by signing an ‘Equity Rights application form’ (attached to that letter as Schedule 1). There is no dispute that this application form was signed by Mr Clancy on 31 March 2021.
The detailed terms and conditions of the equity right agreement are then contained in schedule 2 of the ‘Equity Rights application form’ and provide for the basis upon which Mr Clancy could purchase an equity interest in the trust of which the applicant was the corporate trustee by exercising an equity option. The terms included a process of valuation of the trust that was to occur prior to any exercise of the equity option. The judge set out this process as follows:
(a)after the expiry of the minimum waiting period, Mr Clancy had 12 months to provide written notice to the trust requesting that the trust obtain a valuation (cl 1.1 and 5.1(a)). The minimum waiting period is defined as the period of 3 years from ‘the date of the Application Form …’ (cl 1.1 and 4.1). The Equity Application Form was provided to Mr Clancy under cover of a letter dated 1 January 2021. The application form is Schedule 1 to the letter. Mr Clancy has signed the application form in his own name and dated it 31 March 2021. There is an issue as to the meaning of the ‘date of the Application Form’ as that will determine when the minimum waiting period would end, in particular, whether on 31 December 2023 or 30 March 2024;
(b)if, during the 12 month period after the expiry of the minimum waiting period Mr Clancy provided a notice requesting a valuation, then the trust was to obtain a valuation promptly (cl 5.2(a)). If Mr Clancy did not provide a notice requesting a valuation, then at the expiry of the 12 month period he would be deemed to have provided such a notice and the trust was to obtain a valuation;
(c)once the trust had obtained a valuation it was to provide it to Mr Clancy as soon as reasonably practicable (cl 5.3), after which Mr Clancy would have 30 days to give notice to the trustee whether or not he elects to exercise the option for equity (cl 5.4(a)); and
(d)if the defendant elects to exercise the option, or provides no notification, then the defendant will be taken to have exercised its option and will receive its equity entitlement (cl 5.6). Once it receives its equity entitlement the defendant ‘may exercise its Equity Options by paying the Total Exercise Price to the Trust’ (cl 5.8 and 8.3). But the equity right would expire if the defendant gave notice that it ‘elects not to make the Equity Election’ (cl 5.4(c)(i)) or elects a Cash Nomination (cl 5.4(c)(ii)). Clause (e) of the Agreement and Acknowledgments states ‘you … (no consideration) acknowledge that you are not required to provide any consideration for the grant of the Equity Right.’ There is nothing in the Equity Right Agreement Terms that requires payment of money prior to payment of the Total Exercise Price under cll 5.8 and 8.3 after the valuation process.[6]
[6]Reasons, [11].
The applicant’s case was that the loan would not be repayable until after the date of the 12 March 2024 statutory demand given there was a valuation process that needed to be undertaken before any exercise of the equity option. At the earliest, this valuation process could commence on 1 April 2024 (being the day after the end of the three year minimum waiting period). The submission was that the debt could not be repayable any earlier than 1 April 2025, and on one construction, needed to be after that date following the completion of the entire valuation exercise.

Judge’s reasons

On 11 September 2024 the judge delivered reasons, and made the following findings:
(a)the 21 day affidavit did not the raise the additional dispute, but raised a dispute about whether there was no concluded agreement at all;[7]
(b)there was no serious question or plausible contention raised about whether there was no concluded agreement at all (i.e. on the ground raised in the 21 day affidavit);[8]
(c)if he was wrong, and the additional dispute was raised in the 21 day affidavit, then he would have found there was a serious question or plausible contention as to whether, on the proper construction of the agreement, the debt was due and payable;[9]
(d)nonetheless, he would have found that the serious question or plausible contention was not genuine.[10]
[7]Reasons, [55]–[61].
[8]Reasons, [68].
[9]Reasons, [75].
[10]Reasons, [85].
The judge referred to the applicant’s submission that the 21 day affidavit fairly alerted the defendant to the additional dispute and was at least discernible from the affidavit and exhibits. He rejected this submission,[11] giving the following reasons:
[11]Reasons, [55].
First, Mr Dinnison’s assertions that there was no concluded agreement is a clear statement of his position. He did not state any alternative along the lines that there was an agreement but on different terms, and it is difficult to see how in those circumstances, the defendant could have been fairly alerted to any such argument from the body of his affidavit.
Secondly, much of the correspondence exhibited to the 21 day affidavit was explicitly relied on for the purpose of establishing that there was no agreement because negotiations were continuing. In that sense the correspondence cannot be said to fairly raise the ground of dispute that there was an agreement, but on different terms. The two grounds are inconsistent.
Thirdly, the only part of the correspondence that seems to touch on issues subsequently sought to be relied on is in the email dated 25 September 2021 from Mr Dinnison to Mr Clancy in which he states:
The attached loan agreement secures the loan amounts being paid. The repayment date (Dec 2023) aligns with the equity right conversion date.
But this correspondence is relied on in the context of the clear assertion that no agreement was reached. In addition, the date nominated for repayment (being ‘Dec 2023’) is inconsistent with the date the plaintiff ultimately seeks to submit was the due date, being the end of the valuation process under the Equity Right Agreement. The plaintiff does seek to rely on the ground that the ‘true agreement’ was that the loan would be repayable at the equity right conversion date. But that ground was not fairly raised in the 21 day affidavit by the passing reference in the 25 September 2021 email, in the context of the explicit denial that there was any agreement, and in the absence of any correspondence constituting any purported acceptance of this suggested date.
In my view, any submission that the loan was repayable pursuant to the terms of the loan agreement no sooner than the equity option election could be exercised under the Equity Right Agreement goes beyond the grounds contained in the 21 day affidavit. The submission that the loan agreement will have to be rectified similarly goes beyond the grounds contained in the 21 day affidavit. I reach that conclusion primarily because the 21 day affidavit contains a clear statement that the genuine dispute was founded on the proposition that no concluded loan agreement was reached. Any argument that there was a concluded loan agreement reached, and that pursuant to the terms of that concluded agreement the loan amount was repayable not before a particular date, or after a particular process was undertaken, is irreconcilable with the initial clearly stated ground that there was no concluded agreement.[12]

Applicant’s submissions

[12]Reasons, [56]–[60] (citations omitted).

The applicant submitted that the threshold requirement for the contents of the affidavit filed within the 21 day period under s 459G of the Act is low. The affidavit supporting the application may convey the area of controversy either expressly, or by necessary inference. It is sufficient if the ground is discernible from some annexed document the content of which revealed it.
The applicant submitted that a fair reading of the 21 day affidavit was that it conveyed the controversy that the debt on which the statutory demand was based was not due and payable. The applicant then pointed to various aspects of the 21 day affidavit that would make good this submission:
(a)It exhibited and described the loan agreement and stated that ‘[i]t was intended that the maturity dates of the loan agreement and the Consultancy Agreement be aligned to ensure that when the loan ended the equity component would commence’ at paragraph 15.
(b)It exhibited the 25 September email which stated: ‘The attached loan agreement secures the loan amounts being paid. The repayment date (Dec 2023) aligns with the equity right conversion date.’
(c)It stated that the alleged debt was ‘not payable’ to the respondent as demanded (at paragraphs 11(a) and 27(a)). The deponent was thereby intimating that the loan had not yet matured, and was therefore not payable.
(d)It stated that the ‘Repayment Date’ as set out in 1 January document had not been agreed (at paragraph 24).
(e)It stated in a number of places that no agreement had been reached between the parties on the terms of the 1 January agreement (at paragraphs 16, 17 and 21). This did not preclude an argument that the loan agreement was agreed, but on different terms, particularly in circumstances where the affidavit referred to amounts that had been ‘advanced’.
In oral submissions, counsel submitted that all the 21 day affidavit needed to do was to provide a basis for establishing that the debt was not due and payable. Further, that an inference was sufficient, and that there was no need for ‘flashing lights’ if the ground is discernible and the ‘nucleus’ of the dispute is identified.
Counsel focused on the various aspects of the 21 day affidavit already identified, including paragraph 15, the 25 September email, as well as the references to the concept of equity in some of the emails (e.g. ‘equity component’ and ‘invested’).
He highlighted that the 25 September email indicated that the date for repayment was to align with the equity conversion date and that it could be inferred from the whole affidavit that the debt was not due and payable. Although the 25 September email specified a repayment date of December 2023 (prior to the 12 March 2024 date of the statutory demand), he maintained that this was not a definitive statement of the repayment date.
Counsel emphasised that the 21 day affidavit merely conveyed that the loan was not made on the terms of the 1 January agreement as alleged. This did not mean that a loan was not advanced on other terms, in circumstances where there was an acknowledgement that the company received payments. It followed that the associate judge read the affidavit too narrowly.

Respondent’s submissions

The respondent submitted that the judge was correct to reject the applicant’s argument that the additional dispute was raised in the 21 day affidavit, for the following reasons:
(a)first, when read as a whole, the 21 day affidavit confined the area of controversy to whether the loan agreement the subject of the demand was ever entered into;
(b)second, there was nothing in the 21 day affidavit capable of conveying a dispute about whether there was a different agreement under which the maturity date for the loan had not arrived;
(c)third, there was no evidence to support the suggestion that there was a different agreement. The suggestion in paragraph 15 of the 21 day affidavit that there was some intention to ‘align the maturity dates’ of the loan with an equity component was no more than a statement of a hope, wish or expectation as to a term that might be embodied in a formal written agreement and was therefore insufficient. The 25 September email was also insufficient. It nominated a repayment date of December 2023, and ignored the entire context wherein the parties were negotiating the terms of the agreement. The 25 September email was also followed by another email of 30 September from Mr Clancy to Mr Dinnison, which raised the sufficiency of any recourse in the event of non-repayment of principal ‘in Dec 23’;
(d)fourth, the argument about there being a different agreement and the argument advanced in the 21 day affidavit (to the effect that there was no agreement at all) were incompatible.
In oral submissions, counsel highlighted that:
(a)there was only one passing reference to the ‘equity right agreement’ at paragraph 14 of the 21 day affidavit; that agreement was not exhibited, nor were its terms described;
(b)the fact that paragraph 15 stated that it was ‘intended’ that the maturity dates of the loan agreement and the consultancy agreement aligned was no more than mere assertion and did not even indicate whether it was a subjective or common intention. This statement was also contained within a background section of the affidavit prior to the exposition of the actual dispute which was being advanced, as contained in paragraphs 16 and 17 and by reference to the email chain contained in exhibit MD-1. That email chain was clearly deployed to support the contention in paragraph 17 that, as at September 2021, there were negotiations as to the terms of the alleged loan agreement that had not concluded;
(c)the 25 September email identifies a repayment date of December 2023, and no other later date, while the interest rate of 8 per cent nominated in the email is the same as the rate contained in the 1 January document;
(d)the emails that follow the 25 September email also cite December 2023 and the interest rate of 8 per cent;
(e)the 1 January document contains no terms which in any way connect the repayment of the loan to the equity right agreement, or make it conditional in some way. In fact, the equity right agreement is not even mentioned in the 1 January document. To the contrary, the 1 January document expressly nominates 31 December 2023 as the repayment date. There is therefore no evidence to support the notion that by working through the election and valuation process the repayment date is some date later than 31 December 2023;
(f)although the deponent stated that the ‘Alleged Loan Agreement was never entered into and the parties never finalised the terms of this agreement’ (at paragraph 21), he did not say that there was some different agreement;
(g)paragraph 24, which stated that the repayment date formed part of the ‘Alleged Loan Agreement’ but was not ultimately agreed, is ambiguous, but what was not said is what later date might have been agreed;
(h)paragraph 25, which described the alleged dispute, confined the dispute on the basis that the respondent was ‘seek[ing] to rely on the Alleged Loan Agreement in repayment of the Alleged Debt’.
Counsel also submitted that the case was of a similar character to that considered by Austin J in POS Media v B Family[13] where his Honour observed that the relevant affidavit did not give the ‘faintest inkling’ that an argument would be made based on the terms of a particular put and call option agreement. The affidavit did not annex the agreement, nor give an account of the contents of the agreement sufficient to identify the ground. In fact, the terms of the affidavit seemed inconsistent with the ground later sought to be raised.[14]

Consideration

[13][2003] NSWSC 147.

[14]Ibid [42].

Legal framework

Section 459G of the Act provides:
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 the statutory period after the demand is so served.
(3)An application is made in accordance with this section only if, within that period:
(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.
Section 459H of the Act relevantly provides:
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.
The key question in this case is whether the 21 day affidavit constitutes an affidavit ‘supporting the application’ in respect of the additional dispute for the purposes of s 459G(3)(a).
In answering this question, the recent decision of this Court in Sceam Construction Pty Ltd v Clyne (‘Sceam’) helpfully summarises the relevant principles.[15] Sceam was a builder engaged by the owners of a home to carry out renovation works on their property under a contract administered by an architect. The owners served a statutory demand on Sceam demanding a debt on the basis of a certificate provided by the architect as to amounts payable in respect of building defects. Sceam applied to set that demand aside and filed an affidavit within the relevant statutory time period. In that affidavit, it alleged design flaws in the architectural drawings and disagreed with the defects identified by the architect. However, Sceam subsequently sought to set the demand aside on the basis that the amount claimed was not a debt because there had not been compliance with the terms of the contract relating to the issue of various notices.
[15](2021) 64 VR 404; [2021] VSCA 270 (‘Sceam’).
The primary judge dismissed Sceam’s application on the basis that the arguments it sought to raise about non-compliance with the contractual terms had not been raised in the initial affidavit filed within the requisite time period.
In seeking leave to appeal the judge’s decision, Sceam contended, inter alia, that the judge had wrongly applied a ‘fair notice’ requirement. It submitted that the Victorian authorities had diverged from more recent New South Wales authorities, in applying such a requirement. Further, that the New South Wales authorities were to be preferred.
As a result of the matters raised, this Court had cause to examine the case law in some detail, including two previous decisions of this court in Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) (‘Malec’)[16] and GoConnect Ltd v Sino Strategic International Ltd (in liq) (‘GoConnect’),[17] as well as a decision of the NSW Court of Appeal in NA Investments Holdings Pty Ltd v Perpetual Nominees Ltd (‘NA Investments’).[18]
[16][2015] VSCA 330.
[17][2016] VSCA 315.
[18][2010] NSWCA 210. We have been greatly assisted by the summaries of these three cases contained in Sceam (2021) 64 VR 404, 410–12 [20]–[29], 413–14 [33] (Ferguson CJ, Sifris and Walker JJA).
In Malec, Scotts Agencies supplied fuel to Malec, which operated a transport company. Scotts Agencies served a statutory demand on Malec for unpaid fuel and Malec applied to set the demand aside. In the affidavit filed within the statutory time period, Mr Malec deposed that he had been charged for fuel where there was no evidence that the fuel had in fact been delivered. As a result, he alleged that there was an offsetting claim in a specific amount. The basis for the alleged overcharging was hence a claim that on specified days Scotts Agencies had charged for fuel in excess of the capacity of Malec’s tankards. However, in a subsequent affidavit filed outside the statutory period, Mr Malec exhibited reports that showed what fuel had been used and compared it with what had been charged. He claimed that the whole of the demand should be set aside as the amount charged was far in excess of the quantity of the fuel Malec had used.
In the result, the Court refused to set aside the statutory demand. The Court held that the initial affidavit raised the issue of overcharging on the ground that Scotts Agencies charged for fuel which it could not have delivered on specific days, whereas the later affidavit raised a separate issue of overcharging on the basis of fuel used by Malec.
Although both disputes were concerned with overcharging, the decision of Malec suggests that where the affidavit filed within the statutory period identifies a ground with some specificity, such as to exclude other alternatives, this may exclude another different ground.
The decision of this Court in GoConnect is to similar effect. In that case, Sino served a statutory demand in respect of a loan debt and GoConnect sought to set the demand aside. The affidavit filed in support of GoConnect’s application stated that there was a genuine dispute because the loan was only payable when GoConnect chose to pay it. However, supplementary affidavits filed outside the statutory period alleged that the loan agreement contained oral terms, was ambiguous, and that Sino was estopped from demanding repayment.
The Court held that the affidavit filed within the statutory period did not notify Sino of any contention other than that the loan was only repayable when it chose to pay it.[19] It also rejected a submission that some further correspondence exhibited to the initial affidavit contained the additional contentions sought to be advanced. Even if this was wrong, the correspondence needed to be read in the context of the whole of the initial affidavit which confined the basis of the dispute to the terms of the loan facility agreement.[20]
[19] GoConnect [2016] VSCA 315, [41] (Santamaria and Kyrou JJA, Elliott AJA).
[20]Ibid [43].
In the NSW Court of Appeal decision in NA Investments, the relevant facility agreement was exhibited to the initial affidavit filed within the statutory period. The debtor later sought to rely on a construction argument notwithstanding that the nature of that argument had not been outlined in the initial affidavit. Despite the fact that the affidavit was said to put the creditor ‘off the scent’, the Court found that the affidavit was still properly characterised as a ‘supporting affidavit’ where the only issue sought to be raised was one of construction and the document in question had been put into evidence.[21] However, given that evidence outside the document was necessary so as to consider the construction issue, the Court ultimately found that the judge was correct not to set aside the statutory demand.[22]
[21]NA Investments [2010] NSWCA 210, [85]–[86] (Lindgren AJA, Beazley JA agreeing at [1], Handley AJA agreeing at [2]).
[22]Ibid [91].
After summarising, inter alia, the above three cases, the Court in Sceam concluded:
[T]he affidavit must support the application by providing the basis for establishing that there is a genuine dispute. Establishing the genuineness of the dispute requires material showing, or from which it can be inferred, that there is a real dispute. Most commonly this will be done by the deponent describing the dispute. That description will delineate the scope of the dispute which may be relied upon to set the demand aside. Where the dispute is based purely on the construction of a written agreement between the parties, the support requirement may be satisfied by exhibiting the agreement without more. But, for example and without being prescriptive, if something beyond the written terms is to be relied upon, then it is highly likely that this will need to be raised in the affidavit and more than mere assertion will be necessary. Ultimately, what is required to satisfy the support requirement must be assessed in the context of the particular application that is made.[23]
[23]Sceam (2021) 64 VR 404, 415 [38] (Ferguson CJ, Sifris and Walker JJA).
In relation to the suggestion that the Victorian authorities had wrongly applied the concept of ‘fair notice’, the Court stated:
In our opinion, while various forms of language are used in the authorities, their effect is the same. Whether the terms ‘fair notice’ or ‘fairly alert’ are used or whether it is said that the ground must be raised ‘expressly, by necessary inference or by a reasonably available inference’, the outcome turns on whether the affidavit supports the application. In their context, we do not understand the Victorian authorities referred to above to have used the terms ‘fair notice’ and ‘fairly alert’ in a procedural fairness sense. Rather, in substance and properly understood, those phrases have been used as a shorthand for the lengthier phrase ‘expressly, by necessary inference or reasonably available inference’. That phrase requires that the grounds for resisting the statutory demand appear in the affidavit. … The language of ‘fair notice’ or ‘fairly alerts’ has been directed towards the need for the affidavit to show that there is a real dispute, so as to properly be regarded as an affidavit that supports the application to set aside the statutory demand.[24]
[24]Ibid 415–16 [39].
The Court went on to refer to an earlier decision of Sundberg J in Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund[25] and considered that the affidavit in that case did not state any material facts to show there was a genuine dispute, but contained ‘mere assertions’ and thus was not an affidavit ‘in support’ of the application.[26] The Court contrasted this position with other cases where a supporting affidavit did identify a genuine dispute on a particular basis, but later sought to rely on a different genuine dispute. The Court stated:
It is clear from the authorities that an affidavit filed within time that does not identify the dispute later sought to be relied upon is not a ‘supporting affidavit’ in so far as the different genuine dispute is concerned …[27]
[25](1996) 70 FCR 452.
[26]Sceam (2021) 64 VR 404, 417 [43] (Ferguson CJ, Sifris and Walker JJA).
[27]Ibid.
The decision in Sceam provides extensive guidance as to the requisite content of an affidavit ‘supporting’ an application for the purposes of s 459G(3)(a). We consider that the following principles have particular relevance to this case:
(a)The affidavit must ‘support’ the application by providing the basis for establishing that there is a genuine dispute about the existence or amount of the debt.
(b)Most commonly this will be done by the deponent describing the dispute. That description will delineate the scope of the dispute.
(c)The ground for resisting the demand must be raised expressly, by necessary inference, or reasonably available inference.
(d)Where the dispute about the existence or amount of the debt is based purely on the construction of a document, the requirement may be satisfied by exhibiting the document.
(e)Mere assertion that the debt is disputed is insufficient.
(f)An affidavit filed within time that does not identify the dispute later sought to be relied upon is not a ‘supporting affidavit’ insofar as the different genuine dispute is concerned. The question of sufficient identification will be considered in context, having regard to the degree of specificity with which the initial dispute is defined.

Analysis

The gravamen of the applicant’s submissions was that the 21 day affidavit sufficiently disclosed the additional dispute. The applicant particularly focused on the reference to the ‘equity right agreement’ (in paragraph 14); the statement that it was ‘intended’ that the maturity dates of the loan agreement and the consultancy agreement be ‘aligned’ (in paragraph 15); the 25 September email; and the statements to the effect that the alleged debt was ‘not payable’.

The applicant’s submission must be rejected for a number of reasons.
First, the passing reference to the equity right agreement in paragraph 14 is insufficient in circumstances where the equity right agreement is not exhibited. Nor were its terms identified, or even described in a summary way. The statement that it was ‘intended’ that the dates be ‘aligned’ is also unhelpful and ambiguous. It is insufficient to raise the additional dispute expressly, or by inference. This is particularly so given the relatively complex operation of the equity right agreement as already described.
Second, we reject the submission that the 21 day affidavit indicated that some different agreement — not the agreement reflected by the 1 January document — was actually reached. The statements at paragraphs 16 and 17 are inconsistent with any such suggestion. The emails contained in MD-1 are also clearly intended to support the proposition that the parties were ‘still engaging in negotiations’. If — as is now suggested — a different agreement had been agreed, one would expect a simple statement to that effect to have been included.
Third, there is no suggestion anywhere that the repayment date was contrary to that specified in the 1 January document and/or that it had not yet been reached. Nor is there any suggestion that it was somehow tied to a separate mechanism contained in the equity right agreement. The statements to the effect that the debt was ‘not payable’ do not delineate any such dispute. Paragraph 24 simply states that the repayment date was ‘not ultimately agreed’, not that some different date was agreed. The documents annexed at MD-1 also include the unsigned 1 January document, which expressly provides for a repayment date of 23 December 2023, and contains no clauses connecting the repayment of the loan with the equity application process. The 25 September email also cites the date of December 2023 as the repayment date.
Finally, the 21 day affidavit clearly intends to identify a very different basis for dispute, namely, that there was no final agreement reached at all as to the terms of the loan. This is apparent from the clear, and specific, statements made in paragraphs 16, 17, and 24 to the effect that the agreement was never finalised, or agreed. In these circumstances, the judge was correct to consider that these statements identified a specific dispute which was inconsistent with the additional dispute.
When considered overall, then, the 21 day affidavit did not identify the additional dispute. More particularly, it did not provide any basis for establishing that the repayment date was to be tied to a different agreement which was neither annexed, nor described. The associate judge was therefore correct to find that it was not a ‘supporting affidavit’ insofar as the additional dispute was concerned.

Conclusion

Proposed ground one must fail. It is therefore unnecessary to consider proposed grounds two and three. The application for leave to appeal is refused.

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[2025] VSCA 36

14 March 2025