Eatertainment Group Pty Ltd v Curtis Family Developments Pty Ltd - [2025] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0111

EATERTAINMENT GROUP PTY LTD (ACN 639 827 188)	Applicant
v
CURTIS FAMILY DEVELOPMENTS PTY LTD (ACN 149 237 273) AS TRUSTEE FOR THE CURTIS FAMILY TRUST	Respondent

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JUDGES:	KENNEDY, WALKER AND ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2025
DATE OF JUDGMENT:	22 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 193
JUDGMENT APPEALED FROM:	[2024] VSC 512 (Gardiner AsJ)

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CORPORATIONS – Appeal – Statutory demand – Where respondent issued two demands for payment for shop fit-out works for applicant’s restaurant – First demand subject of deed of settlement – Applicant raised new offsetting claim when applying to set aside second demand – Applicant claimed it relied on respondent’s misleading representations when entering into contract for fit-out works – Applicant claimed respondent agreed to only require payment for works after applicant was paid lease incentive by lessor – Whether applicant established a plausible contention requiring investigation as to new offsetting claim – Whether offsetting claim merely constructed in response to statutory demand – No plausible contention established by applicant’s evidence – Leave to appeal refused.

Corporations Act 2001 (Cth) s 459G; Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’) s 18.

Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 330, applied; Energy Equity Corp Ltd v Sinedie Pty Ltd (2001) 166 FLR 179; Sceam Construction Pty Ltd v Clyne (2021) 64 VR 404, discussed.

PRACTICE AND PROCEDURE – Application by solicitor for leave to file notice that they cease to act for applicant – Leave granted – Application by company director for leave to represent applicant – Leave granted.

Supreme Court (General Civil Procedure) Rules 2015 rr 1.17(1), 2.04(1), 20.03(1); Civil Procedure Act 2010 ss 7, 8.

Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595, applied.

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Counsel
Applicant:		Mr G Pezaros, director of the applicant in person
Respondent:		Mr I Hristovski
Solicitors
Applicant:
Respondent:	Burch & Co Lawyers

KENNEDY JA
WALKER JA
ORR JA:

This application for leave to appeal relates to a statutory demand served by Curtis Family Developments Pty Ltd (‘CFD’) on Eatertainment Group Pty Ltd (‘Eatertainment’). CFD and Eatertainment had entered into a contract under which CFD would undertake the fit-out of premises to be occupied by Eatertainment. The contract provided that Eatertainment would pay all tax invoices issued by CFD within 14 days. CFD had rendered an invoice in relation to its work in the sum of $801,900, of which Eatertainment paid $100,000 but failed to pay the remainder; CFD eventually issued a statutory demand for payment of $701,900 (the ‘first statutory demand’).
Eatertainment sought to have the first statutory demand set aside. It alleged that there was a genuine dispute about the quality and value of the works performed and that it had offsetting claims in relation to certain equipment (the ‘first offsetting claim’). Eatertainment also alleged that Brett Curtis, a director of…

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.

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Details

Case: [2025] VSCA 193
Decision Date: 22 August 2025

CaseChat Overview and Summary

In the case of Eatertainment Group Pty Ltd v Curtis Family Developments Pty Ltd, the dispute arose from the issuance of two statutory demands by the respondent, Curtis Family Developments Pty Ltd, for payment of sums owed by the applicant, Eatertainment Group Pty Ltd, for shop fit-out works. The case was heard in the Supreme Court of Victoria. The primary issue was whether the applicant had established a plausible contention that required investigation into a new offsetting claim raised when applying to set aside the second statutory demand. Additionally, the court had to determine whether this offsetting claim was merely constructed in response to the statutory demand.

The court found that the applicant had not established a plausible contention based on their evidence. The applicant claimed reliance on misleading representations made by the respondent regarding payment for the fit-out works. The applicant argued that the respondent had agreed to require payment only after the applicant was paid a lease incentive by the lessor. The court held that there was no plausible contention established by the applicant’s evidence. Consequently, the leave to appeal was refused. The court also granted leave for the solicitor to cease acting for the applicant and for a company director to represent the applicant.

This decision highlights the importance of establishing a plausible contention for new claims when applying to set aside statutory demands. The court emphasised the need for the applicant to provide sufficient evidence to support their claims. The court's refusal to grant leave to appeal and the granting of leave for the solicitor and the director to act further underscores the procedural aspects of the case.

Orders