Dynamic Window Systems Pty Ltd v Robinson - [2016] VSC 152

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2016 00452

DYNAMIC WINDOW SYSTEMS PTY LTD (ACN 143 691 445)	Plaintiff
v
LARAINE MARGARET ROBINSON	Defendant

---

JUDGE:	EFTHIM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2016
DATE OF JUDGMENT:	13 April 2016
CASE MAY BE CITED AS:	Dynamic Window Systems Pty Ltd v Robinson
MEDIUM NEUTRAL CITATION:	[2016] VSC 152

---

CORPORATIONS – Winding up – Statutory demand – Application to set aside statutory demand – Corporations Act 2001 (Cth) s 459G – Whether the loan was due and payable at the time the statutory demand was served – Whether the agreement was void for uncertainty – Whether the defendant was estopped from seeking repayment – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C R Brown	Frenkel Partners
For the Defendant	Mr R Greenberger	Indovino’s Lawyers

HIS HONOUR:

The plaintiff, Dynamic Window Systems Pty Ltd, applies to set aside a statutory demand served on it by the defendant, Laraine Margaret Robinson. The demand claims that the plaintiff is indebted to the defendant in the sum of $250,000.00. The schedule of the statutory demand describes the debt as follows:

- Loan funds advanced by the creditor to the company on 3 July 2014: $11,000.00;

- Loan funds advanced by the creditor to the company on 21 July 2014: $239,000.00;

- Total debt $250,000.00.

The plaintiff relies on an affidavit of Christopher Mark Banks (a director of the plaintiff) sworn on 9 February 2016 and an affidavit of Duncan Adair Johnson (a director of the plaintiff) sworn 25 February 2016. The defendant, in response, relies on an affidavit of its solicitor, Gaetano Indovino, sworn 22 February 2016.

The plaintiff is a supplier of aluminium doors, windows and associated products which it manufactures from its factory in Bairnsdale, Victoria. It employs 53 staff.

The plaintiff purchased the business in June 2013. The purchase was negotiated on behalf of the plaintiff by its directors, Mr Johnston and Mr Banks. Negotiations were held with Warren James Robinson and Christopher Leslie Newton, on behalf of the company known as ACN 006 709 253 Pty Ltd (formerly Dynamic Window Systems Pty Ltd).

As part of the sale, the plaintiff agreed to take over responsibility for the majority of the debts of the former Dynamic Window Systems Pty Ltd and assume its employee liabilities and continuation of guaranteed contracts. Mr Robinson was personally liable for some of those debts as he had personally guaranteed them. He told Mr Banks that he faced bankruptcy if the purchase did not go through. The plaintiff also agreed to take over a superannuation loan from Mr Robinson to the former Dynamic Window Systems Pty Ltd and to appoint Mr Robinson as its General Manager of the business.

After the purchase of the business, Mr Johnston and Mr Banks discovered a number of serious issues with the disclosure of financial information of the business that had been provided by Mr…

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.

Keep reading for free

Create a free CaseChat account to read Dynamic Window Systems Pty Ltd v Robinson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSC 152
Decision Date: 13 April 2016

CaseChat Overview and Summary

Dynamic Window Systems Pty Ltd sought to recover a debt from Robinson, the sole director of the company, by issuing a statutory demand under section 459D of the Corporations Act 2001. Robinson, in turn, applied to set aside the statutory demand on various grounds, including that the loan was not due and payable at the time the demand was served, the agreement was void for uncertainty, and that Robinson was estopped from seeking repayment. The matter was heard in the Federal Circuit Court of Australia.

The court considered whether the loan was due and payable at the time the statutory demand was served. It examined the terms of the loan agreement and whether there was any ambiguity in the agreement that could render it void. Additionally, the court assessed whether Robinson was estopped from seeking repayment based on any representations or conduct that might have led Dynamic Window Systems to believe the debt was settled.

The court found that the loan was indeed due and payable at the time the statutory demand was served, as the terms of the loan agreement were clear and unambiguous. The court also dismissed the argument that the agreement was void for uncertainty, holding that the terms were sufficiently certain to be enforceable. Furthermore, the court ruled that Robinson was not estopped from seeking repayment, as there was no evidence of any representation or conduct that would have led Dynamic Window Systems to believe the debt was settled. Consequently, the application to set aside the statutory demand was dismissed.

The court ordered that the application to set aside the statutory demand be dismissed and that Robinson pay Dynamic Window Systems' costs of the application.

Orders