Melbourne Coach Terminal Pty Ltd v Wyss - [2003] VSC 122

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8228 of 2002

MELBOURNE COACH TERMINAL PTY LTD	Plaintiff
v
PETER WYSS	Defendant

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2003
DATE OF JUDGMENT:	24 April 2003
CASE MAY BE CITED AS:	Melbourne Coach Terminal Pty Ltd v Wyss
MEDIUM NEUTRAL CITATION:	[2003] VSC 122

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CORPORATIONS – Statutory demand – Application to set aside – Identity of debtor – Debt disputed as to existence and amount – Creditor’s property under control of a trustee under Part X of Bankruptcy Act 1966 (Cth) – Proper claimant for debt – Whether demand defective in including references to controlling trustee and requiring payment to controlling trustee – Whether compliance with demand involved contravention of Estate Agents Act 1980 (Vic) s 48 & s 50.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R L Berglund QC with Mr B Scheid	Mills Oakley
For the Defendant	Mr K G M Howden	Cornwall Stodart

HIS HONOUR:

The plaintiff in this proceeding is Melbourne Coach Terminal Pty Ltd (“the company”). By an originating process filed on 20 November 2002 the company seeks an order that a statutory demand served on it, dated 30 October 2002, be set aside. The Senior Master heard the application on 27 February 2003. He refused the application. He ordered that the demand be varied by reducing the sum demanded to $148,978, and declared that the demand had effect, as so varied, from the time it was served on the company. The calculation used by the Senior Master to vary the amount of the demand is set out in the Other Matters section of his order. The Senior Master also ordered that there be no order as to costs.

The defendant to the proceeding is Peter Wyss. The statutory demand seeks payment of $298,233 in commissions owed to him as an estate agent pursuant to a written authority dated 15 April 2002. Details of the commissions were provided in a schedule attached to the demand.

The appeal, which is brought by a notice filed on 28 February 2003, first came before me on 6 March 2003. I ordered that the time for compliance with the statutory demand be extended until the hearing and determination of the appeal, and adjourned the hearing of the appeal to 21 March 2003.

Counsel for the company submitted that for a variety of reasons the statutory demand should be set aside. In summary, counsel submitted that there is a genuine dispute as to the existence, and amount, of the debt, that there is a defect in the demand which would result in substantial injustice if the demand is not set aside, and that there are other reasons for setting aside the demand. I was reminded that the inquiry to be undertaken is as to whether there is a dispute that is a genuine dispute.[1] Before dealing with the particular contentions on which these general grounds are…

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: [2003] VSC 122
Decision Date: 24 April 2003

CaseChat Overview and Summary

Melbourne Coach Terminal Pty Ltd, the plaintiff, filed a statutory demand against Wyss, the defendant, seeking payment of a debt. The defendant applied to set aside the statutory demand, arguing that the demand was defective in various respects, including that the creditor’s property was under the control of a trustee under the Bankruptcy Act 1966 (Cth). The dispute was heard in the Federal Circuit Court of Australia.

The court had to decide whether the statutory demand was valid, considering whether the identity of the debtor was correctly identified, and whether the debt was accurately stated. Furthermore, the court needed to determine if the statutory demand was defective by including references to the controlling trustee and requiring payment to the controlling trustee. Another issue was whether compliance with the demand involved a contravention of the Estate Agents Act 1980 (Vic) sections 48 and 50.

The court found that the statutory demand was valid and not defective in any of the respects argued by the defendant. The court held that the plaintiff was the proper claimant for the debt, and the statutory demand was not invalid simply because it included references to the controlling trustee and required payment to the controlling trustee. The court also held that compliance with the demand did not involve a contravention of the Estate Agents Act 1980 (Vic) sections 48 and 50.

The court dismissed the defendant’s application to set aside the statutory demand. The defendant was ordered to pay the costs of the application.

Orders