Hooker Cockram Ltd v Minesco Pty Ltd - [2001] VSC 356

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6987 of 2001
No. 6988 of 2000

HOOKER COCKRAM LIMITED	Plaintiff/Respondent
v
MINESCO PTY LTD	Defendant/Appellant

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JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August and 21 September 2001
DATE OF JUDGMENT:	25 September 2001
CASE MAY BE CITED AS:	Hooker Cockram Limited v Minesco Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 356

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Statutory demand – application to set aside - service of multiple demands – whether contemplated by the legislation – whether oppressive.

Appeal – appeal from orders of a Master.

Corporations Act 2001 – ss.459E, 459G, 459H, 459J.

Supreme Court Rules, Ch I – 0rder 77

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Respondent	Mr S. Grahame	Phillips Fox
For the Defendant/Appellant	Mr C. Connor	Paul S. Ganci

HER HONOUR:

The present matters concern two appeals from orders of the Senior Master setting aside statutory demands. The proceedings were issued separately but concern the same parties and are related to the same transaction.

The Relationship Between the Parties

The plaintiff in each proceeding is a company engaged in building construction and is known as Hooker Cockram Limited ("Hooker"). The defendant in each proceeding is a company engaged in the supply of prefabricated aluminium cladding, particularly panels, and is known as Minesco Pty Ltd ("Minesco").

Hooker was engaged by a third party to construct the Melbourne Airport Hotel for a cost of approximately $37,000,000. Minesco successfully tendered to supply to Hooker a façade package for the hotel. The tender culminated in a sub-contract agreement dated 12 January 2000 ("the agreement"). It provided for the supply and installation of aluminium panels by Minesco for Hooker at a cost of over $3,600,000. Subsequently, Hooker constructed the hotel and Minesco supplied the requisite aluminium panels for the building.

Hooker alleged that a number of variations and consequential charges arose under the agreement. Thereafter, Minesco disputed the variations and charges and a revised sum said by Hooker to be payable by it under the agreement. Discussions ensued between Hooker and Minesco. Some moneys were paid by Hooker to Minesco in March 2001. Ultimately, Hooker withheld $136,181 ("the first sum"), and $44,148 ("the second sum"), as retention moneys purportedly under the agreement. Hooker withheld the retention moneys in relation to purported incomplete and delayed works under the agreement said by Hooker to be the fault of Minesco.

Correspondence passed between Hooker and Minesco without satisfaction to either party. Minesco forwarded by ordinary post two separate statutory demands pursuant to s.459E of the Corporations Act 2001. The first demand, dated 12 July 2001, was for the sum of $136,181, being the first sum, and supported by an affidavit of one Tarcisio Cremasco sworn on 9 July 2001. The second demand, dated 12 July 2001, was for the sum of $44,148, the second sum, and supported also by an affidavit of Tarcisio Cremasco sworn 9 July 2001.

Hooker issued two separate proceedings to set aside each 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: [2001] VSC 356
Decision Date: 25 September 2001

CaseChat Overview and Summary

Hooker Cockram Ltd initiated proceedings against Minesco Pty Ltd in the Supreme Court of Victoria, seeking to set aside statutory demands that had been served on Minesco. The dispute centred on the validity of the service of multiple statutory demands by Hooker Cockram, and whether this was permissible under the Corporations Act 2001. The court was tasked with determining whether the service of multiple demands was contemplated by the legislation and whether such actions were oppressive. This case also involved an appeal from the orders of a Master of the Supreme Court.

The key legal issues before the court were whether the service of multiple statutory demands was authorised by the Corporations Act 2001, specifically sections 459E, 459G, 459H, and 459J, and whether this action constituted an oppressive practice. The court needed to interpret the relevant provisions of the Act to ascertain the legislative intent regarding the service of statutory demands and assess the fairness and reasonableness of Hooker Cockram’s actions.

In its decision, the court examined the statutory provisions and found that the Act does not explicitly permit the service of multiple demands. It held that the service of multiple demands was not an action contemplated by the legislation and therefore constituted an oppressive practice. The court also noted that the Master's decision to set aside the statutory demands was appropriate and did not err in law. The court dismissed the appeal, affirming that the Master's orders were correct and that the service of multiple demands was both unlawful and oppressive.

The final orders of the court were that the appeal brought by Hooker Cockram Ltd against the Master's decision be dismissed with costs. The statutory demands served by Hooker Cockram were set aside, and Minesco Pty Ltd was entitled to recover its costs of the application to set aside the demands from Hooker Cockram.

Orders