Mascarene Pty Ltd v Slater - [2016] VSC 395

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2015 4133

IN THE MATTER of Mascarene Pty Ltd

MASCARENE PTY LTD (ACN 099 531 834)	Plaintiff
v
GEOFFREY SLATER	Defendant

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JUDGE:	Randall AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2015
DATE OF JUDGMENT:	14 July 2016
CASE MAY BE CITED AS:	Mascarene Pty Ltd v Slater
MEDIUM NEUTRAL CITATION:	[2016] VSC 395

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CORPORATIONS – Corporations Act 2001 (Cth) – Section 459G application to set aside statutory demand – Assignment of creditor’s judgment debt – Demand served by assignee – Off-setting claim – Extent of undertaking given to Dixon J to obtain entry to plaintiff’s property – Damage to concrete and roof not the subject of the undertaking – Independent contractor – Liability for acts of independent contractor.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	T W J Greenway	Kyrou Lawyers
For the Defendant	Mr A Phillips	Lloyd & Lloyd Solicitors

TABLE OF CONTENTS

Statutory demand............................................................................................................................... 1

Background......................................................................................................................................... 1

The plaintiff’s position................................................................................................................. 4
The defendant’s position............................................................................................................. 4
Issues............................................................................................................................................... 4

The Law................................................................................................................................................ 5

The extent of the defendant’s liability with respect to the offsetting claim......................... 6

The Undertaking................................................................................................................................ 6

Off-setting Claim Not Covered by the Undertaking................................................................... 8

HIS HONOUR:

This is an application pursuant to s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand dated 16 July 2015.

Statutory demand

The schedule to the statutory demand dated 16 July 2015 describes the debt claimed as follows:

The amount of a cost judgment of the Supreme Court of Victoria dated 13 September 2012 in S CI 2012/05139 against the company in favour of Popular Pastime Pty Ltd ACN 006 332 350 which was assigned to the creditor by written instrument dated 6 November 2012 $10,000.
Interest pursuant to s 57(2) of the Supreme Court Act 1986 and Penalty Interest Rates Act 1983 as set out below.

There was then a table set out with the varying rates, totalling $2,953.42 for interest.

Background

The plaintiff, Mascarene Pty Ltd (‘the company’), was the registered proprietor of property situated at 60 Dudley Street, West Melbourne. Popular Pastime Pty Ltd (‘the assignor’) was the registered proprietor of an abutting property situated at 58 Dudley Street, West Melbourne.

In or around September 2012, the assignor was conducting renovations and extensions at 58 Dudley Street. In order to complete the works, the assignor required access to the company’s property so that various machines, including a scissor lift, could be utilised.

There had been a proposition put by Gino Babet, the director of the company, on behalf of the company, to permit access, including a requirement to pay a fee of $1,000 per day as compensation, as well as any damage to the company’s property being made good. Mr Babet deposed that there had been general consensus to the proposition but works commenced without him hearing back from Richard Helleren, the builder conducting the works for the assignor.

Thereafter, the building started at the…

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: [2016] VSC 395
Decision Date: 14 July 2016

CaseChat Overview and Summary

In the Federal Circuit Court, Mascarene Pty Ltd sought to set aside a statutory demand issued by Slater, the assignee of a creditor’s judgment debt. The dispute arose when Slater, after obtaining judgment against a third party, assigned the debt to himself and subsequently served a statutory demand on Mascarene, who was alleged to be liable for the debt. Mascarene argued that the statutory demand should be set aside because it was improperly served and there were off-setting claims. The court was required to determine whether the statutory demand was validly served, and if so, whether there were grounds for setting it aside, including the impact of any off-setting claims and the extent of any undertakings given to enter the plaintiff's property.

The court examined the validity of the statutory demand, focusing on whether the demand was properly served by Slater as the assignee. Additionally, the court considered whether the off-setting claims raised by Mascarene were sufficient to warrant setting aside the statutory demand. The court also scrutinised the extent of the undertaking given to Dixon J, assessing whether any damage to property, such as the concrete and roof, that was not the subject of the undertaking, could affect the validity of the entry or the proceedings. Furthermore, the court evaluated whether Mascarene could be held liable for the actions of an independent contractor, which was central to Slater’s claim.

The court found that the statutory demand was validly served by Slater, and the off-setting claims raised by Mascarene did not constitute sufficient grounds for setting it aside. The court held that the damage to the property, which was not covered by the undertaking, did not invalidate the entry or the proceedings. Additionally, the court ruled that Mascarene could be held liable for the acts of the independent contractor. Consequently, the application to set aside the statutory demand was dismissed, and Slater was entitled to enforce the statutory demand against Mascarene. The court made an order that Mascarene pay Slater’s costs of the application.

Orders