ECS Corporate v ECS Assist
[2020] VCC 1290
•24 August 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMERCIAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CI-19-05983
| ECS Corporate Pty Ltd (in liquidation) (ACN 107 311 982) | First Plaintiff |
| and | |
| Robert Scott Ditrich | Second Plaintiff |
| v | |
| ECS Assist Pty Ltd (ACN 107 441 403) | First Defendant |
| and | |
| Carmelo Mark Chiappalone | Second Defendant |
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JUDGE: | HER HONOUR JUDGE MARKS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2020, 7 August 2020 | |
DATE OF JUDGMENT: | 24 August 2020 | |
CASE MAY BE CITED AS: | ECS Corporate v ECS Assist | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1290 | |
REASONS FOR JUDGMENT
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PRACTICE AND PROCEDURE – Summary judgment – debt due under terms of settlement – defence raised that the money due is subject to a Quistclose or other trust – defence has no real prospects of success.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiffs | Mr N Paterson | Collins & Stephens Lawyers |
| For the defendants | Mr J F Styring (20 July 2020) | Robert James Lawyers (20 July 2020) |
| Mr C M Chiappalone in person (7 August 2020) |
Contents
Introduction
Background
The defence
Analysis
Direct payments
Trust claims
Effect of s471B Corporations Act
Costs
HER HONOUR:
Introduction
The plaintiffs seek summary judgment.
Submissions were filed by the parties (three sets by the plaintiffs). Two affidavits of the second plaintiff (the liquidator of the first plaintiff) were filed by the plaintiffs. An affidavit was filed by the second defendant.
The summons was first heard on 20 July 2020. At that stage the defendants were represented by solicitors and by Mr John Styring of Counsel. The matter was adjourned to enable Mr Chiappalone (the second defendant) to file an amended defence and counterclaim, and to allow the filing of further submissions.
Subsequently, the solicitors for the defendants sought leave to cease to act, and filed affidavits in support of that application. That leave was given at the beginning of the adjourned hearing on 7 August. Mr Chiappalone was then given leave to represent the first defendant (a company of which he is a director) and himself in the adjourned hearing. He then made oral submissions, and provided further documents he sought to rely on.
In reaching my decision, I have considered the affidavits and submissions filed, the further documents provided by Mr Chiappalone, and all the oral submissions made. In particular, I have taken into account the submissions made for the defendants whilst they were still represented, as well as those that Mr Chiappalone made himself.
The power to grant summary judgment under section 63 of the Civil Procedure Act 2010 (Vic) is to be exercised with caution, and judgment should not be given unless it is clear that there is no real question to be tried. In exercising my discretion, I need to consider if the defendants have a ‘real’ as opposed to a fanciful chance of success: see Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 at [27, 29]
I am satisfied on the material filed that the debt claimed by the plaintiffs is due, and that the defendants do not have real prospects of success in defending that claim.
Background
By a sale of business agreement made 9 October 2015, the first defendant (ECS Assist) agreed to assume certain liabilities of the first plaintiff (ECS Corporate) totalling $439,090 (Assumed Liabilities).
On 10 November 2015 ECS Corporate was wound up in insolvency.
ECS Corporate and its liquidator (the second plaintiff in this case) sued ECS Assist, and its director, Mr Chiappalone in the Supreme Court of Victoria, in relation to the sale of business agreement and transfer of ECS Corporate’s business assets, claiming that they were uncommercial transactions (under s588FB of the Corporations Act 2001 (Cth)) because ECS Corporate was insolvent at the time of the agreement and transfer. The statement of claim also pleaded that ECS Assist had failed to make payment of the Assumed Liabilities, and that Mr Chiappalone had breached his duties as director. Claims were made for loss and damage; for declarations the transactions were voidable under s588FE of the Act. And, relevantly to the dispute before me, the statement of claim sought an order for ‘specific performance of the obligations under the assumed liabilities payment clause’.
The parties entered Terms of Settlement on 14 November 2017. By clause 4, the defendants agreed to indemnify the plaintiffs in respect of ‘any reasonably approved and admitted’ claims made in the liquidation of the first plaintiff in respect of the Assumed Liabilities. The liquidator agreed to notify the defendants within 7 days of receiving a claim under clause 4, send them a copy of supporting documentation, and give them an opportunity to respond or comment in relation to the claim within 14 days of notification. But once such a claim had been ‘positively adjudged’, as set out in clause 4C ‘the Defendants must pay to the Plaintiffs the amount of the claim within 21 days of notification of the adjudication.’
Claims were made in the liquidation in respect of Assumed Liabilities in the sum of $173,778.23. Notification was given to the defendants. They did not provide evidence the claims had already been satisfied, or otherwise assumed by Mr Chiappalone.
On 19 December 2018, the liquidator admitted claims totalling $172,928.23 in respect of Assumed Liabilities (Adjudicated Claims).
The plaintiffs now seek payment from the defendants, relying on the Terms of Settlement.
The defence
The defendants say that the money claimed is not due to the plaintiffs. Their defence filed 27 February 2020 pleads:
·
any monies paid by them pursuant to clause 4C of the Terms was intended
to be, and must be, held on Quistclose trust, alternatively on trust, by the plaintiffs for the priority creditors in respect of the Assumed Liabilities referred to in clause 4C of the Terms [para 11(b) defence];
·On the proper construction of clauses 4, 4A, 4B and 4C of the Terms, they presently do not owe any monies to the plaintiffs under the Terms [para15(b) defence];
·Since 1 January 2015 the defendants have paid certain monies to BMW Finance and Esanda Finance Corporation Limited [para 17(a) defence].
The defendants’ written submissions expand on the defence:
Background
[2]By the Sale of Business Agreement referred to in paragraph 1(2)(a) above, ECS Corporate Pty Ltd agreed to sell to ECS Assist Pty Ltd and ECS Assist Pty Ltd agreed to buy from ECS Corporate Pty Ltd the Business and Assets (as defined in the sale agreement) of ECS Corporate Pty Ltd in consideration of:
(1)pursuant to clause 2.2.2 of the sale agreement, ECS Assist Pty Ltd making payments of $284,969.02 in Proportional Amounts to the Nominated Parties as defined and respectively set out in clauses 16.1.19 and 16.1.16 on page 12 of the Sale of Business Agreement;
(2)ECS Assist Pty Ltd assuming liability of ECS Corporate Pty Ltd debts in the sum of $439,090.00 to the persons the subject of clause 2.2.1(a)-(d) of the Sale of Business Agreement, which assumed liability of ECS Assist Pty Ltd remains enforceable and extant.
[3]The Sale of Business Agreement included the following documents:
(1)an independent Valuation and Report of ECS Corporate Pty Ltd dated 29 June 2015;
(2)guarantees given by Mr Chiappalone and relating to assumed liabilities.
[4]The payments in paragraph 2(1) above had not been made and the assumed liabilities in paragraph 2(2) above had not been discharged before the 27 February 2017 commencement of the Originating Process.
[5]Relief sought by the plaintiffs by the Statement of Claim on the Originating Process proceeding included:
(1)prayer for relief A (page 14 of the Statement of Claim) - “[a]n order that [ECS Assist Pty Ltd] pay the cash component to [ECS Corporate Pty Ltd];
(2) prayer for relief C (page 15 of the Statement of Claim) - “an order for specific performance of the obligations under the assumed liabilities (sic) payment clause” (clause 2.2.1(a)(-d)), namely, payment by ECS Assist Pty Ltd of the amounts to or to the benefit of the persons the subject of that clause.
Terms of Settlement
[6]As to the cash component, and further to prayer for relief A of the Statement of Claim, the parties agreed by the Terms of Settlement that the defendants would pay a total sum of $277,815.45 (clauses 1 and 2), which payments were made.
[7] As to the assumed liabilities in clause 2.2.1(a)-(d) of the Sale of Business Agreement, and further to prayer for relief C of the Statement of Claim, the parties agreed, in substance, that:
(1)the defendants would indemnify and hold harmless the plaintiffs for such of the assumed liabilities in clause 2.2.1 of the Sale of Business Agreement as were admitted by the liquidator to proof (clause 4);
(2)upon admission of an assumed liability to proof, the defendants would pay the liquidator’s admitted sum to the plaintiffs (clauses 4A-4C).
[8]By its operation and derivation from the Sale of Business Agreement, and as expressed in prayer for relief C of the Statement of Claim, indemnity clause 4 of the Terms of Settlement manifests a mutual intention that, when paid, the sums the subject of clause 2.2.1(a)-(d) should not fall within the general fund of the assets of ECS Corporate, but that monies paid in relation to an admitted liability should be entirely applied, as a special designated purpose, to that liability. Corresponding liability under the guarantees mentioned in paragraph 3(2) above is co-extensively reduced.
[9]So understood, the Terms of Settlement evince, among other things, an intention to create a trust upon receipt by the plaintiffs of an admitted assumed liability payment by the defendants. In terms of Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567, the Terms of Settlement provide that payment by the defendants of an admitted assumed liability amount would be to impress that amount with a primary trust for payment to the assumed liability beneficiary and with a secondary trust for repayment to the defendants upon the failure of the primary trust.
[10]The amplitude of the Terms of Settlement and clauses 4 to 4C in particular, was and is such as to accommodate an assumed liability beneficiary as a third party to the Terms of Settlement making demand upon the plaintiffs for payment in full of its admitted claim. Upon failure to pay, the defendants would be obliged, in terms of clause 4, to indemnify the plaintiffs in relation to the beneficiary prosecuting its claim.
[11]In Merrell Associates Ltd v HL (Qld) Nominees Pty Ltd [2010] SASC 155, Gray J (with whom Nyland and Vanstone JJ agreed) said at [61] that the decision in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 “provides that the privity of contract rule may be qualified in circumstances such as those of the within proceeding where the intention of the parties was clearly to benefit a third party.”
Principles of construction
[12]The above examination of the Terms of Settlement is faithful to relevantly engaged principles of construction, namely:
(1) giving effect to the objective intention of the parties to the Terms of Settlement by according that document the meaning which its language in light of its context and purpose would convey to a reasonable businessperson in the position of the parties. In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, French CJ, Nettle and Gordon JJ said:
The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
(2)words that are legal terms of art will be presumed to be used in their strict legal sense unless the subject document manifests a contrary intention: In Re Will of Gutheil (1922) 20 CLR 293 at 299-300 (Knox CJ) and 312 (Higgins J). In a contractual setting, an indemnity is a promise by the promisor that he will keep the promisee harmless against loss as a result of entering into a transaction with a third party, Sunbird Plaza Pty Ltd v Maloney (1989) 166 CLR 245 at 254, per Mason CJ. This is consistent with paragraphs 6, 7, 8 and 9 above;
(3)the terms must be construed as a whole. In Fitzgerald v Masters (1956) 95 CLR 420 at 437, McTiernan, Webb and Taylor JJ explained the principle as follows:
It is trite law that an instrument must be construed as a whole. Indeed it is the only method by which inconsistencies of expression may be reconciled and it is in this natural and common sense approach to problems of construction that justification is to be found for the rejection of repugnant words, the transposition of words and the supplying of omitted words …
(4)lastly, it is to be presumed that no part of the Terms of Settlement has been unnecessarily included, that is, a presumption against redundancy or surplusage: XL Insurance Co SE v BNY Trust Company of Australia Limited [2019] NSWCA 215 (2 September 2019) [72].
Declaration
[13]The plaintiffs have disclosed by paragraph 16 of their Submissions an intention to apply an admitted assumed liability payment by the defendants other than to the beneficiary of the assumed liability.
[14] In all the circumstances, the defendants are entitled to declarations in relation to the construction of the Terms of Settlement for which they contend. In The Bank of Victoria Ltd v Mueller [1925] VLR 642 (decided on 7 September 1914), Cussen J said at 659:
I do not think I should refuse relief to the defendant merely because the defence as I have conceived it might have been expressed somewhat more fully and clearly. I am also of opinion that under our present [Judicature Act] system of procedure the defendant is entitled to relief in such a case as this, though not counterclaiming for equitable relief.
[15]In Roseville Estate Pty Ltd v Bouris [2006] VSC 49 (23 February 2006), and where declarations were not sought by the defendants by counterclaim [3], Hansen J said at [200]:
… the defendant has established her case based upon the principles in Garcia. It follows that in lieu of the declaration sought by the plaintiff there should be declarations that the mortgage between the defendant as mortgagor and the plaintiff as mortgagee and dated 14 March 2003 is not binding upon the defendant, and that the plaintiff is not entitled to an estate or interest in the defendant’s property as mortgagee under the said mortgage. There should also be an order that the caveat be removed.
[citations omitted]
At paragraph 7 of his affidavit, Mr Chiappalone deposes:
[7]Since the first plaintiff went into liquidation, and even after the terms of settlement with the liquidator were entered into, I have been making payments to BMW and Esanda. On a date which I cannot recall, but not long after the Terms of Settlement were signed, I had a telephone conversation with a male person who worked for the liquidator. In that telephone conversation, that male person said to me words to the effect: “You need to pay the debts owed to BMW and Esanda directly to them.” This has always been my understanding, and as such I have continued to make payments to BMW and Esanda since the Terms of Settlement were signed. I understood that in the event the liquidator had to make a payment to BMW, Esanda and the ATO in the liquidation because I had not paid them out in full, then I would have to reimburse the liquidator for those payments under the indemnity procedure set out in the Terms.
At the second hearing Mr Chiappalone produced further documents to seek to establish that he had made ongoing payments to Esanda and BMW, including paying $6,525.76 to BMW the day before the hearing (5 August). He said he made the payment to BMW so that the car would not be repossessed.
Analysis
The defence does not have real prospects of success.
As set out by the plaintiffs in their second set of written submissions:
[1]Nothing in the second defendant’s belated affidavit sworn 30 June 2020 (Defendants’ Affidavit): -
(a) challenges the adjudication of the Liquidator of the Assumed Liabilities, totalling $172,928.23 on 19 December 2018 (Adjudicated Claims);
(b)evidences any legal assumption of the Assumed Liabilities by either of the defendants (as opposed to the mere reduction of them), so as to extinguish the liability of the first plaintiff for them; or
(c) alleges any reduction to the $57,968.60 owed to the Plaintiffs in respect of the ATO debt forming part of the Adjudicated Claims.
[2]What the defendants’ submissions ignore is that the Terms established a contractual regime between the parties to: -
(a)quantify the indemnity being given by the defendants to the plaintiffs in respect of the Assumed Liabilities, if the defendants failed to otherwise assume, extinguish or dispute them; and
(b)make that quantified indemnity (the Adjudicated Claims) a debt payable by the defendants to the plaintiffs within 21 days of notice of the adjudication, being 9 January 2019.
[3]Accordingly, once the adjudication process was completed in accordance with the Terms, as it was by 19 December 2018, no payment by the defendants to either BMW or Esanda or their collection agents could operate to reduce the debt owed to the plaintiffs. They are not the same obligations and they are not co-extensive. The second defendant’s obligation to BMW and Esanda arises from guarantees that he gave in relation to the first plaintiff’s debts. By contrast, the first and second defendants owed a contractual obligation to the plaintiffs, as set out above, arising out of the settlement of earlier proceedings against the defendants, which is the debt upon which the plaintiffs sue.
[citations omitted]
Direct payments
I accept that since the adjudication of 19 December 2018, Mr Chiappalone has made payments directly to Esanda and BMW (including as late as the day before the second hearing). The plaintiffs concede that these payments ‘would likely reduce the first plaintiffs’ obligation, in turn, to those creditors’.
However, that does not reduce the defendants’ liability to the plaintiffs under the Terms of Settlement.
Mr Chiappalone swears in his affidavit that someone at the liquidator’s office told him not long after the Terms of Settlement were signed, ‘You need to pay the debts owing to BMW and Esanda directly to them’. Even if this is true (which for the purposes of this application I accept that it is) it does not alter the defendants’ liability under the Terms of Settlement. The making of such a statement does not give rise to a defence that has real prospects of success in circumstances where the Terms set out the specific liability of the defendants to the plaintiffs.
Trust claims
So far as the trust allegations are concerned, I consider that the plaintiffs are correct in their submissions:
[7]…there is no real question to be tried in defence of the plaintiffs’ claim because:
(a)no monies have been paid to the plaintiffs by the defendants in respect of the Adjudicated Claims and so no such trust has yet arisen;
(b)a trust which might be alleged to arise once payment is made, cannot operate presently to excuse non-payment of the Adjudicated Claims; and
(c)the allegation of trust is more properly asserted by way of counterclaim.
No trust arises
[8]A Quistclose trust arises where the parties intend that the transferee takes an asset for a specific purpose (the primary trust) and then, if the purpose fails, the transferee holds the asset on trust for the transferor (the secondary trust).
[9] It is a form of express trust.
[10]In Re Australian Elizabethan Theatre Trust, Gummow J said, in relation to what was alleged to be a trust in the nature of a Quistclose trust:
“The question as to the existence of any express trust will always have to be answered by reference to intention. … Ordinarily, the relevant intention is that of the alleged settlor, but where the subject matter of the trust is contractual rights against the settlor, conferred by the settlor upon the alleged trustee, the objective (or ‘purpose’) of the transaction being to benefit third parties, it may be appropriate to look at the mutual intention of settlor and trustee
…
The relevant intention is to be inferred from the language employed by the parties in question and to that end the court may look also to the nature of the transaction and the relevant circumstances attending the relationship between them.”
[11]The Victorian Court of Appeal in Braham Investments Pty Ltd v Sovereign MF Ltd recently approved that statement of position and said further:
“In determining whether a trust relationship exists, regard must be had to the whole of the relevant circumstances.
Whether an intention to create a trust exists must be determined by reference to the outward manifestation of such an intention within the totality of the circumstances.”
[12]In Byrnes v Kendle, Heydon and Crennan JJ summarised the English and Australian authority in relation to declarations of trust and explained that:
“the "intention" referred to is an intention to be extracted from the words used, not a subjective intention which may have existed but which cannot be extracted from those words. This is as true of unilateral declarations of alleged trust as it is of bilateral covenants to create an alleged trust. It is as true of alleged trusts which are not wholly in writing as it is of alleged trusts which are wholly in writing. In relation to alleged trusts which are not wholly in writing, the need to draw inferences from circumstances in construing the terms of conversations may in practice widen the extent of the inquiry, but it does not alter its nature.”
[13] The parties entered into the Terms, which gave rise to a contractual obligation on the part of the defendants for the benefit of the plaintiffs to assume obligations in respect of the Assumed Liabilities and, in default, to make a payment to the plaintiffs (Payment). The Terms are expressed in clause 13 to be the entire agreement between the parties “in relation to their subject matter”.
[14]The purpose of a Payment, as it appears from clause 4 of the Terms, is:
(a)to “indemnify and hold harmless the plaintiffs with respect to… claims in the liquidation…”; and
(b)as part of the consideration for the releases given by the plaintiffs to the defendants upon that Payment.
[15]Nothing further is said in the Terms, or in any correspondence before the Court, by which the parties expressed or from which it could be inferred that the parties intended a Payment be applied in any particular manner, including:
(c) so as to extinguish the Debts in full; or
(d)to relieve either of the defendants of any obligations that they might also have or have had to creditors in respect of such Debts.
[16]In the absence of any trust imposed, the Liquidator is bound to apply a Payment in accordance with the regime set out in Part 5.6, Division 6, Subdivision D of the Corporations Act 2001 (Cth) (Act). The creditors in respect of the Debts are only entitled, as against the plaintiffs, to a distribution of available funds in the liquidation in accordance with those provisions.
[17]By reason of the factual matters identified above, particularly the Terms which appear to have been the only outward manifestation of the intentions of the parties, it cannot be said that the purpose of the parties, or even just that of the defendants, viewed objectively, was that a Payment be applied by the plaintiffs in any particular manner.
[18]If that is so, there can be no express trust (including a Quistclose trust) over any Payment that so binds the plaintiffs.
[19]Similarly, there are no facts before the Court by which any trust could otherwise be implied in respect of a Payment, independent of the expressed intentions of the parties
[20] A Payment would not fall within any of the recognised classes of cases in which resulting trusts are held to arise.
[21]The unqualified receipt by the plaintiffs of a Payment would not be unconscionable, in the context of the Terms which settled claims and provided releases as between the parties. It would not warrant any finding by the Court that a “constructive trust” be imposed over a Payment.
…
[citations omitted]
I do not consider that there are real prospects of success that a trust could arise in the circumstances.
Further, I consider that the relief the defendants seek would need to be brought by way of counterclaim. Effectively, they seek declaratory relief to the effect that the money due, if paid to the plaintiffs, would be held by the plaintiffs on trust for a specific purpose.
Of course, it has not yet been paid. It is not a defence to paying the money to say it should be applied a certain way.
Seeking a declaration as to how the money is to be held by the plaintiffs (to whom it is payable) is a distinct claim.
The defence does not claim declaratory relief nor make plain how the alleged trust arises. At the first hearing, I gave the defendants an opportunity to plead a defence setting out the basis of its trust claim fully, and making any counterclaim.
No further pleading was filed.
I do not accept that such declaratory relief is available in the absence of a counterclaim in a case of this nature. Neither of the cases relied on by the defendants (The Bank of Victoria Ltd v Mueller [1925] VLR 642 and Roseville Estate Pty Ltd v Bouris [2006] VSC 49) are on point. The ‘equity’ raised here by the defendants is not raised as a defence to paying the money at all (the issue in those cases). Rather, the defendants effectively want specific orders as to what the plaintiffs should do with the money once paid.
Effect of s471B Corporations Act
Importantly, I consider that if the defendants sought to pursue such declaratory relief, they would need leave under s471B of the Corporations Act 2001. It provides:
Stay of proceedings and suspension of enforcement process
While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:
(a)a proceeding in a court against the company or in relation to property of the company; or
(b) enforcement process in relation to such property;
except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.
The relief the defendants would be seeking relates to the property of ECS Corporate – a company being wound up in insolvency. The relief they seek is to have that property treated a certain way: as subject to a trust. To seek that leave, the defendants need to apply to another court – it cannot be applied for in the County Court. A ‘Court’ as referred to in s 471B of the Act is defined in s 58AA of the Act to include a limited number of courts including the Federal Court or a Supreme Court of a State or Territory. It does not include the County Court of Victoria.
As submitted by the plaintiffs:
[14]A “proceeding in a court against the company” has been held to:
(a)include an application for a declaration concerning the identity of shareholders of the company: Re Pharmacy Depot Hurstville Pty Ltd [2018] NSWSC 961 at [17]- [18]
(b)exclude an interlocutory application by the defendants in respect of costs against the company flowing from a dismissal for want of prosecution of proceedings brought by the company: Rosebridge Nominees Pty Ltd vCommonwealth Bank of Australia (No 7) [2016] WASC 329 at [33]
(c)exclude an application for security for costs and an appeal from such a decision: BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339;
(d)exclude an application for dismissal following failure to pay security and for want of prosecution: Austrak Infrastructure Development Pty Ltd v SharvinePty Ltd (No 7) [2012] VSC 267.
…
[18]The cases referred to above focus on what is “a proceeding against the company”, and not on the second limb of s 471B (1)(a), namely “a proceeding… in relation to property of the company”. The case that the defendants seek to run falls squarely within the latter description.
[19]Accordingly, the defendants require leave under s 471B of a “Court” in order to bring a claim for the relief that they now seek, whether or not properly the subject of a counterclaim.
[20]The County Court of Victoria is not, of course, in a position to grant such leave, regardless of the merits of such an application.
[citations omitted]
Mr Chiappalone made it clear at the adjourned hearing that he does not intend to apply for leave under s471B to an appropriate Court to bring a claim for the relief sought. He said that given the amount in question, and the cost of bringing that application, it is not worth it, and it is not a course he will take.
Costs
I direct the parties to consider the orders that should be made as a result of these reasons and provide consent orders by 4 pm on 28 August 2020. If the parties cannot agree, brief submissions may be filed as to the appropriate orders, by the same time.
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Certificate
I certify that these 15 pages are a true copy of the reasons for judgment of Her Honour Judge Marks, delivered on 24 August 2020, revised on 10 September 2020.
Dated: 10 September 2020
Zeinab Ali
Associate to Her Honour Judge Marks
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