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Greenmint Pty Ltd v O'Keeffe

Greenmint Pty Ltd v O'Keeffe

Case [2015] VSC 326 13 July 2015

Contract Formation

Unconscionable Conduct

Limitation Periods

Commercial Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2015 01642

IN THE MATTER of GREENMINT PTY LTD (ACN 158 682 436)

GREENMINT PTY LTD (ACN 158 682 436)	Plaintiff
v
MARK O'KEEFFE	Defendant

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JUDGE:	GARDINER AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2015
DATE OF JUDGMENT:	13 July 2015
CASE MAY BE CITED AS:	Greenmint Pty Ltd v O'Keeffe
MEDIUM NEUTRAL CITATION:	[2015] VSC 326

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CORPORATIONS – Application to set aside statutory demand under s 459G of the Corporations Act 2001 (Cth) on basis of genuine dispute – Whether service by facsimile transmission of sealed copy of application and accompanying affidavit in support is valid service – Held to be valid service, Seventh Cameo v Holdway Pty Ltd followed – Director of plaintiff signed deed containing provisions for payment of very high rates of interest which were contended to be penalties – Toll (FGCT) Pty Limited v Alphapharm Pty Limited and others (2004) 219 CLR 165 and Kellas-Sharpev PSAL Limited [2012] QCA 371 applied – No genuine dispute – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J M Selimi	MLC Lawyers
For the Defendant	Mr J Kohn	JPM Law

TABLE OF CONTENTS

Background and Application........................................................................................................... 1

Whether there has been service of the application in compliance with s 459G(1) of the Act 1

Is there a genuine dispute?............................................................................................................. 10

Greenmint’s evidence...................................................................................................................... 12

Mr O’Keeffe’s evidence in opposition......................................................................................... 14

Greenmint’s affidavit in reply....................................................................................................... 17

Were the interest rates payable under the Deed a penalty?..................................................... 26

HIS HONOUR:

Background and Application

On 14 April 2015 the plaintiff (‘Greenmint’) made application by originating process pursuant to s 459G of the Corporations Act 2001 (Cth) (‘the Act’) to set aside a statutory demand dated 23 March 2015 that had been served on it by the defendant Mark O’Keeffe on 24 March 2015. The demand was accompanied by an affidavit of Mr O’Keeffe sworn 23 March 2015.

The schedule to the demand describes the debt as follows:

Principal pursuant to the Deed of Loan between the Creditor and the Company dated 30 October 2014 (‘Deed of Loan’)

$60,000.00

Interest as of the date hereof pursuant to the Deed of Loan

$41,029.35

Creditor’s legal costs in relation to preparation of Deed of Loan recoverable by the Creditor from the Company pursuant to the Deed of Loan

$2,098.65

Creditor’s legal costs in relation to breach of Deed of Loan recoverable by the Creditor from the Company pursuant to the Deed of Loan

$2,000.00

TOTAL

$105,128.00

Greenmint relies on affidavits of Joanna Kordos dated 13 April and 15 June 2015 and an affidavit of Patricia Oman dated 16 June 2015. In opposition to the application Mr O’Keeffe relies on his affidavit dated 5 June 2015 and affidavits of Carlos Quiroga dated 5 June 2015 and Michael Vertes dated 23 March 2015.

Greenmint contends that there is a genuine dispute in respect of the debt the subject of the demand.

Whether there has…

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 Greenmint Pty Ltd v O'Keeffe

Details

AGLC: Greenmint Pty Ltd v O'Keeffe [2015] VSC 326
Case: [2015] VSC 326
Decision Date: 13 July 2015

CaseChat Overview and Summary

Greenmint Pty Ltd sought to have a statutory demand set aside on the basis that there was a genuine dispute over the debt claimed. The application was made by the director of the respondent, O'Keeffe. The statutory demand was issued under section 459G of the Corporations Act 2001 (Cth). The primary dispute involved the validity of service of the sealed copy of the application and accompanying affidavit, as well as the enforceability of the very high interest rates stipulated in the deed signed by the director of the plaintiff.

The court considered whether the service of the sealed copy of the application and affidavit by facsimile transmission was valid, in light of the precedent set by Seventh Cameo v Holdway Pty Ltd. Additionally, the court examined whether the very high interest rates outlined in the deed were penalties, and therefore unenforceable. The court applied the principles from Toll (FGCT) Pty Limited v Alphapharm Pty Limited and Kellas-Sharpe v PSAL Limited to determine the enforceability of the interest rates. The court found that the interest rates did not constitute penalties and that there was no genuine dispute over the debt. The application was dismissed.

The court found that the service of the sealed copy of the application and affidavit via facsimile was valid, consistent with the decision in Seventh Cameo v Holdway Pty Ltd. The court further determined that the interest rates specified in the deed were not penalties, following the precedents set in Toll (FGCT) Pty Limited v Alphapharm Pty Limited and Kellas-Sharpe v PSAL Limited. As there was no genuine dispute over the debt, the application to set aside the statutory demand was dismissed. No further orders were made.

Orders