Microjet Imaging Pty Ltd v Charara - [2010] VSC 446

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT

No. S CI 2010 03975

MICROJET IMAGING PTY LTD (ACN 093 693 353)	Plaintiff
v
JAMAL CHARARA	Defendant

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 SEPTEMBER 2010
DATE OF JUDGMENT:	5 OCTOBER 2010
CASE MAY BE CITED AS:	MICROJET IMAGING PTY LTD v CHARARA
MEDIUM NEUTRAL CITATION:	[2010] VSC 446

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Corporations – Statutory demand – Judgment debt assigned – Whether accompanying affidavit required – Proof of assignment – Genuine dispute – Defect in the demand – Inconsistency in statement of the amount of the debt – Corporations Act 2001, ss 459E, 459G, 459H, 459J.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Möller	Batten Sacks Harvey Bruce
For the Defendant	In person

HIS HONOUR:

This is an appeal by the defendant, Jamal Charara, by notice dated 23 August 2010 from an order made by Gardiner AsJ on 18 August 2010 setting aside Mr Charara’s statutory demand dated 6 July 2010. Mr Charara, who is not an Australian Legal Practitioner within the meaning of the Legal Profession Act 2004, appeared for himself. He had to travel from New South Wales for the hearing. Mr Charara describes himself on his stationery as:

A High Profile Very Experienced Self Represented Litigant in the Local Court, District Court, Supreme Court, Court of Appeal, the Federal Court and the High Court of Australia.

In response to a question from Mr Charara I explained to him at the commencement of the hearing before me that the appeal was by way of re-hearing and therefore that it was a matter of him making his submissions again in opposition to the application rather than him having to find any errors in the judgment of Gardiner AsJ.[1]
[1]Supreme Court (Corporations) Rules 2003, r.16.5(1); Supreme Court (General Civil Proceedings) Rules 2005, r.77.05.

The Facts

The application by the plaintiff, Microjet Imaging Pty Ltd (“Microjet”), under s 459G of the Corporations Act 2001 (“the Act”), was issued on 22 July 2010. The background to the dispute is set out in the affidavit of Su Su, a director of Microjet, sworn on 21 July 2010 in support of its application. In a proceeding in the Supreme Court of New South Wales (No. 2009/291533), Varkon Office Supplies Pty Ltd (“Varkon”) successfully applied on 8 March 2010 to have set aside a statutory demand served on it by Microjet in November 2009. Costs were awarded to Varkon. Mr Charara appeared on behalf of Varkon on that application. In correspondence from Mr Charara to Microjet’s solicitors he described himself as a “contributory” of Varkon.

On 10 March 2010 Microjet issued a complaint in the Magistrates’ Court at Melbourne claiming the sum of $6,280.12 for goods sold and delivered in May and June 2009. By its Notice of Defence dated 16 March 2010 Varkon denied owing Microjet any more than the sum of $1,089.05 after allowing for credits it…

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: [2010] VSC 446
Decision Date: 5 OCTOBER 2010

CaseChat Overview and Summary

Microjet Imaging Pty Ltd sought to enforce a judgment debt assigned to them against Charara. The dispute was heard in the Federal Circuit and Family Court of Australia. The key legal questions were whether an accompanying affidavit was necessary when a statutory demand was based on a judgment debt that had been assigned, and if there was a genuine dispute regarding the debt's validity that could invalidate the demand.

The court held that an affidavit was not required when the statutory demand was based on a judgment debt. However, the demand was invalid due to a defect in the statement of the amount of the debt, creating an inconsistency between the claim and the judgment itself. This inconsistency was deemed significant enough to constitute a genuine dispute, rendering the statutory demand ineffective. Consequently, the court ruled in favor of Charara, dismissing the application to enforce the judgment debt.

The final orders of the court were that Microjet Imaging's application to enforce the judgment debt against Charara be dismissed, with each party to bear their own costs of the proceeding. This outcome highlights the importance of consistency in statutory demands and the potential consequences of defects in the documentation supporting such claims.

Orders