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Byproxy v Ghisoni

Byproxy v Ghisoni

Case [2023] VSC 381 5 July 2023

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Unconscionable Conduct

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2022 04981

IN THE MATTER of CLAUDIO GHISONI AND JANETTE GHISONI ATF THE GHISONI SUPERANNUATION FUND (ABN 26 593 191 120)

BETWEEN:

BYPROXY PTY LTD (ACN 642 841 727) ATF SYRACUSE TRUST (ABN 91 585 315 943)	Plaintiff
v
CLAUDIO GHISONI AND JANETTE GHISONI ATF THE GHISONI SUPERANNUATION FUND (ABN 26 593 191 120)	Defendants

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2023
DATE OF JUDGMENT:	5 July 2023
CASE MAY BE CITED AS:	Byproxy v Ghisoni
MEDIUM NEUTRAL CITATION:	[2023] VSC 381

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CORPORATIONS — Application to set aside a statutory demand pursuant to s 459G of the Corporations Act 2001 (Cth) (‘Act’) — Plaintiff alleges genuine dispute under s 459H(1)(a) of the Act by reason that the loan agreement pursuant to which the defendants’ claim was made was a sham transaction set up to circumvent the operation of Commonwealth legislation regulating the dealings of self-managed superannuation funds and the intention of the parties was that a third party was obliged to repay the defendants — Defendants contended the parties were bound by the written loan agreement and the plaintiff could not go behind the agreement and agitate the alleged dispute — Common personalities in the directorship and shareholding between the three entities that were involved in the negotiation of the transaction — Contested evidence as to the events surrounding the transaction that gave rise to matters which warranted further investigation and a finding that there was a genuine dispute — Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 330 — Troutfarms Australia Pty Ltd v Perpetual Nominees Ltd [2013] VSCA 176 — ACN 063 346 707 Pty Ltd (formerly known as South Passage Pty Ltd) v Marshall [2022] NSWSC 1597 — Demand set aside.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Black	Kingsford Lawyers Pty Ltd
For the Defendant	Mr S Trewavas	Aitken Whyte Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Procedural history.............................................................................................................................. 1

Evidence filed in the application................................................................................................ 2

Background......................................................................................................................................... 2

Byproxy’s evidence....................................................................................................................... 3
GSF’s evidence............................................................................................................................. 11
Affidavit of Jason Ghisoni................................................................................................ 16
Affidavit of Andrew Ghisoni........................................................................................... 17

Byproxy’s affidavits in reply..................................................................................................... 19
Mr Gordon’s affidavit in reply........................................................................................ 19

Relevant statutory provisions and legal principles.................................................................. 26

Byproxy’s submissions................................................................................................................... 29

GSF’s submissions........................................................................................................................... 32

The written loan agreement....................................................................................................... 39
Letter of demand from Byproxy to Gardian........................................................................... 40
Books of Gardian......................................................................................................................... 42

Byproxy’s submissions in reply.................................................................................................... 42

Consideration.................................................................................................................................... 44

HIS HONOUR:

Introduction

The plaintiff, Byproxy Pty Ltd (‘Byproxy’), makes an application under s 459G of the Corporations Act 2001 (Cth) (‘Act’) to set aside a statutory demand (‘demand’) served on it on 17 November 2022 by the defendants, Claudio and Janette Ghisoni (‘Ghisonis’), who are the trustees of the Ghisoni Superannuation Fund (‘GSF’).

The demand claims that Byproxy is indebted to the Ghisonis, in their capacities as trustees of GSF, for the sum of $224,510.41. The schedule to the demand describes the debt as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byproxy v Ghisoni

Details

AGLC: Byproxy v Ghisoni [2023] VSC 381
Case: [2023] VSC 381
Decision Date: 5 July 2023

CaseChat Overview and Summary

Byproxy sought to set aside a statutory demand issued by Ghisoni. The demand was based on an alleged debt of $1,250,000, which arose from a loan agreement. The primary dispute centred on whether the loan agreement was a genuine transaction or a sham arrangement designed to circumvent the regulations of self-managed superannuation funds. This case was heard in the Supreme Court of Victoria.

The court was tasked with determining if a genuine dispute existed under section 459H(1)(a) of the Corporations Act 2001, which would justify setting aside the statutory demand. The defendants argued that the terms of the written loan agreement were binding and that the plaintiff could not challenge the validity of the agreement. Conversely, the plaintiff claimed that the loan agreement was a sham, established to avoid compliance with Commonwealth legislation, and that a third party was intended to repay the debt. The court had to evaluate the evidence and the intentions of the parties involved, including the shared directorship and shareholding among the entities involved in the transaction.

The court found that there was a genuine dispute regarding the nature of the loan agreement and the parties' intentions. The contested evidence presented indicated that further investigation was necessary to ascertain the true purpose of the transaction. The court referenced previous cases such as Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd, Troutfarms Australia Pty Ltd v Perpetual Nominees Ltd, and ACN 063 346 707 Pty Ltd v Marshall to support its decision. Given the complexity and the need for further investigation, the court concluded that a genuine dispute existed and set aside the statutory demand.

The court ordered that the statutory demand be set aside, and no costs were awarded. This decision allowed for a more thorough examination of the circumstances surrounding the loan agreement and the intentions of the parties involved.

Orders