Plato Holdings Pty Ltd v MVP Financial Pty Ltd (in Liquidation) ATF the MVP Unit Trust
[2025] WASC 226
•9 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PLATO HOLDINGS PTY LTD -v- MVP FINANCIAL PTY LTD (IN LIQUIDATION) ATF THE MVP UNIT TRUST [2025] WASC 226
CORAM: MASTER RUSSELL
HEARD: 12 JUNE 2024
DELIVERED : 9 JUNE 2025
FILE NO/S: COR 12 of 2024
BETWEEN: PLATO HOLDINGS PTY LTD
Plaintiff
AND
MVP FINANCIAL PTY LTD (IN LIQUIDATION) ATF THE MVP UNIT TRUST (ABN 36 109 171 068)
Defendant
Catchwords:
Corporations Law - Application to set aside statutory demand - Whether there is a genuine dispute as to the existence of a debt - Whether there is an offsetting claim - Turns on own facts
Evidence - Admissibility of financial records - Sections 1305 and 1306 of the Corporations Act 2001 (Cth) - Whether report prepared using accounting software is a book kept by a body corporate
Legislation:
Corporations Act 2001 (Cth) s 459G, s 459H, s 459J, s 1305, s 1306
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr B W Ashdown |
| Defendant | : | Mr J P Cook |
Solicitors:
| Plaintiff | : | Hall & Wilcox Lawyers |
| Defendant | : | Mendelawitz Morton Commercial Lawyers |
Cases referred to in decision(s):
Australian Karting Association Ltd v Karting (New South Wales) Incorporated [2022] NSWCA 188
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 75 ACSR 1
Bryan Kevin Hughes as liquidator of Westgem Investments Pty Ltd (In Liquidation) (Receivers and Managers Appointed) v Commonwealth Bank of Australia Ltd [2018] WASC 150
CA & Associates Pty Ltd v Fini Group Pty Ltd [2020] WASCA 31
Complete Hire & Sales Pty Ltd v Terra Firma Constructions Pty Ltd [No 2] [2018] WASCA 111
Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85; (2009) 71 ACSR 602
Delta Resource Management Pty Ltd (In Liquidation) v McKay [2024] WASC 423
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Financial Solutions Australasia Pty Ltd v Predella Pty Ltd [2002] WASCA 51; (2002) 26 WAR 306
Linfox Transport (Aust) Pty Ltd v Arthur Yates & Co Ltd [2003] NSWSC 876; (2003) 47 ACSR 261
Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] VicRp 61; [1994] 2 VR 290
Residues Treatment and Trading Company Ltd v Southern Resources Ltd (1989) 52 SASR 54; 15 ACLR 416
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681; (1997) 76 FCR 452
Stone v Mizzi [2024] FCA 696
WA Glass Pty Ltd v Auto Control Systems Pty Ltd [No 2] [2023] WASCA 85
MASTER RUSSELL:
Introduction
The plaintiff, Plato Holdings Pty Ltd (Plato Holdings), applies under s 459G of the Corporations Act 2001 (Cth) (Act) to set aside a statutory demand issued by the defendant, MVP Financial Pty Ltd (In Liquidation) (MVP Financial) as trustee for the MVP Unit Trust.
The statutory demand is dated 15 December 2023 and was served on Plato Holdings on 8 January 2024 (Demand). The Demand claims payment of $190,020 in respect of a debt alleged to be due and payable by Plato Holdings to MVP Financial under a beneficiary account of the MVP Unit Trust in the name of Plato Holdings as trustee for the RM Trust (Debt).
Plato Holdings brings its application to set aside the Demand by originating process filed on 29 January 2024 (Application). It is not disputed that the Application was filed and served within the time required under s 459G of the Act.
Plato Holdings seeks an order that the Demand be set aside or varied on the grounds that:
(a)there is a genuine dispute as to whether the debt claimed in the Demand is payable, pursuant to s 459H(1)(a); and
(b)Plato Holdings has an offsetting claim against MVP Financial, which reduces or exceeds the amount of the Demand, and upon which interest continues to accrue, pursuant to s 459H(1)(b).
Plato Holdings relies on affidavits of Robert Roderio Marusco sworn on 29 January 2024 (First Marusco Affidavit), 21 February 2024 (Second Marusco Affidavit) and 9 April 2024 (Third Marusco Affidavit). It also relies on an affidavit of Gabrielle Marie Fee sworn on 12 April 2024 (Fee Affidavit), and an outline of submissions filed on 12 April 2024.
The application is opposed by MVP Financial. It relies on affidavits of Mathieu Tribut, the liquidator of MVP Financial, sworn on 19 March 2024 (First Tribut Affidavit) and 17 April 2024 (Second Tribut Affidavit), and an outline of submissions filed on 30 April 2024.
For the reasons that follow, I am not satisfied that there is a genuine dispute or that Plato Holdings has established it has an offsetting claim, and the Application should be dismissed.
Relevant factual background - Plato Holdings, MVP Financial and related companies
The following uncontroversial factual background concerning Plato Holdings, MVP Financial and related companies is derived from the affidavits filed.
Plato Holdings is the corporate trustee of the RM Trust, a discretionary investment trust managed by Robert Roderio Marusco, his wife, Rosanna Maria Marusco, and their son, Aden Marusco. The RM Trust is a beneficiary and unit holder of the MVP Unit Trust.[1]
[1] First Marusco Affidavit [6] - [7].
Robert Marusco is an accountant, and the company secretary and a former director of Plato Holdings. Rosanna Marusco and Aden Marusco are its current directors.[2]
[2] First Marusco Affidavit 'RM-1'.
There are five issued shares in Plato Holdings with a paid-up share capital of $5.00. Robert Marusco owns one share (20% of the issued shares) and Rosanna Marusco owns the remaining four shares (80% of the paid up share capital).[3]
[3] First Marusco Affidavit 'RM-1'.
Robert Marusco is also the company secretary and a director of MVP Financial. The other director is Douglas Verley. They were both appointed as directors of MVP Financial on 9 February 2015.[4] Kelvin Robert Smith was formerly a director of MVP Financial from 8 May 2015 until 30 July 2019.[5]
[4] First Marusco Affidavit [13], 'RM-2'.
[5] First Marusco Affidavit [13].
Plato Holdings is the parent company of a group of companies, which I will refer to as the Here Group, of which Robert Marusco and Mr Verley are also directors. The companies in the Here Group are:[6]
(a)Here Accountants and Advisors Pty Ltd (in liquidation) (Here Accountants), formerly named MVP Accountants & Advisors Pty Ltd, which provided accounting, tax and business advisory services.
(b)Here Wealth Pty Ltd (in liquidation) (Here Wealth), formerly named MVP Wealth Pty Ltd, which provided financial planning, wealth management and investment services.
(c)Here Capital Pty Ltd (in liquidation) (Here Capital), formerly named MVP Capital Pty Ltd, which provided business services in the areas of professional services, including strategy, analysis, business coaching and ASX compliance.
[6] First Marusco Affidavit [13].
Each of Here Accountants, Here Wealth and Here Capital operated as vehicles within the Here Group for its directors, including Robert Marusco, to contract their personal services to third parties and cross‑referred clients between the companies in the Here Group.[7] Mr Smith was also formerly a director of Here Accounting and Here Capital.[8]
[7] First Marusco Affidavit [13].
[8] First Marusco Affidavit 'RM-7'.
MVP Financial owns all of the shares in each of the Here Group companies.[9] The two issued shares in MVP Financial are owned by Robert Marusco and Zigzzag Pty Ltd (of which Robert Marusco was formerly a director).[10]
[9] First Marusco Affidavit 'RM-5', 'RM-6', 'RM-7'.
[10] First Marusco Affidavit 'RM-2'.
MVP Financial did not trade in its own right. It was incorporated on 9 February 2015 and became trustee of the MVP Unit Trust on 15 February 2015. As trustee of the MVP Unit Trust, MVP Financial received and held the income generated by the Here Group companies and then distributed it to the beneficiaries of the MVP Unit Trust, the unitholders.
The unitholders of the MVP Unit Trust are:
(a)the RM Trust, the trustee of which is Plato Holdings;
(b)the Bamazonke Trust, the trustee of which is Mr Varley; and
(c)the KLS Trust, the trustee of which is Hudcon Investments Pty Ltd (Hudcon), of which Mr Smith was a director.
A copy of the MVP Unit Trust Deed between MVP Financial as trustee of the MVP Unit Trust, Plato Holdings as trustee for the RM Trust, Mr Verley as trustee for the Bamazonke Trust and Hudcon as trustee of the KLS Trust executed on 10 February 2015 (MVP Unit Trust Deed) is attached to the First Tribut Affidavit.[11]
[11] First Tribut Affidavit [54], 'MT-14'.
Each of the Here Group companies and MVP Financial are in external administration.
Mr Tribut was appointed as:
(a)liquidator of Here Accountants by order of the Federal Court of Australia on 25 October 2022;[12]
(b)liquidator of MVP Financial, on the application of Here Accountants, by order of this court on 28 February 2023;[13]
(c)receiver and manager of the assets of the MVP Unit Trust by order of this court on 24 March 2024.[14]
[12] First Tribut Affidavit [5] - [7], 'MT-3'.
[13] First Tribut Affidavit [10] - [13], 'MT-4', 'MT-5'.
[14] First Tribut Affidavit [14] - [16], 'MT-6'.
Cameron Hugh Shaw and Aaron Joseph Dominish were appointed as liquidators of Here Wealth, by creditors' voluntary winding up, on 22 May 2023.
Giovanni Maurizio Carrello was appointed as liquidator of Here Capital, by creditors' voluntary winding up, on 18 August 2023.
The Debt the subject of the Demand
In his capacity as liquidator of Here Accounting and MVP Financial, Mr Tribut conducted a review of the companies' books and records.[15] In the First Tribut Affidavit, Mr Tribut deposes to and attaches copies of the relevant books and records of the MVP Unit Trust, including its financial statements and tax returns.[16]
[15] First Tribut Affidavit [17], [31].
[16] First Tribut Affidavit [29], 'MT-11'; [30], 'MT-12'.
Mr Tribut relies on the financial records to support and corroborate the existence of the Debt alleged to be owed by Plato Holdings as trustee for the RM Trust to MVP Financial as trustee for the MVP Unit Trust.
The MVP Unit Trust financial statements for the years ended 30 June 2020[17] and 30 June 2021[18] record a negative amount of $190,020 in the beneficiary account of each of the unitholders, including the RM Trust. It is submitted on behalf of MVP Financial that this reflects the cumulation of drawings by the RM Trust in excess of the profit/trust income distributed to it, which is owed by Plato Holdings as trustee of the RM Trust to MVP Financial as Trustee of the MVP Unit Trust.
[17] First Tribut Affidavit 'MT-11' page 221.
[18] First Tribut Affidavit 'MT-11' page 232.
By letter dated 20 February 2023, Mr Tribut as liquidator of MVP Financial, demanded that the RM Trust pay the Debt within seven days.[19]
[19] First Marusco Affidavit [40], 'RM-15'.
Further communications were exchanged regarding the alleged Debt and Plato Holdings' alleged offsetting claims.[20]
[20] First Marusco Affidavit [41] - [46], 'RM-16' - 'RM-19'.
The Demand was served on 8 January 2024 together with an affidavit sworn by Mr Tribut verifying the Debt and stating his belief that there is no genuine dispute about the existence or amount of the Debt.[21]
[21] First Marusco Affidavit [8] - [9], 'RM-3'.
Applicable principles
Section 459G(1) of the Act provides that a company may apply to the court for an order setting aside a statutory demand served on it.
The principles relevant to an application to set aside a statutory demand are well established and were not in issue in the Application.
Genuine dispute
The principles applicable to the determination of whether there is a genuine dispute for the purpose of s 459H(1)(a) of the Act were restated by the Court of Appeal in WA Glass Pty Ltd v Auto Control Systems Pty Ltd [No 2],[22] referring to Buss P's and Vaughan JA's summary of the authorities and well-established principles in CA & Associates Pty Ltd v Fini Group Pty Ltd:[23]
1.The court's function is to determine whether there is a genuine dispute; the court is not expected to undertake an extended inquiry or attempt to weigh the merits of the dispute. It is not part of the court's function to resolve the dispute.
2.It suffices if there is a 'plausible contention' requiring 'further investigation' - something that may be equated to the criterion of whether there is a 'serious question to be tried'.
3.However, the applicant must establish that: (a) the dispute is bona fide and truly exists in fact; and (b) the grounds alleging the existence of the dispute are real and not spurious, hypothetical, illusory or misconceived.
(citations omitted)
[22] WA Glass Pty Ltd v Auto Control Systems Pty Ltd [No 2] [2023] WASCA 85 (WA Glass [No 2]) [46] ‑ [50] (Buss P, Mitchell & Vaughan JJA).
[23] CA & Associates Pty Ltd v Fini Group Pty Ltd [2020] WASCA 31 (CA & Associates) [35], and the authorities referred to: Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85; (2009) 71 ACSR 602 [4], [44] ‑ [46]; Financial Solutions Australasia Pty Ltd v Predella Pty Ltd [2002] WASCA 51; (2002) 26 WAR 306 [22]; Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681; (1997) 76 FCR 452, 46; Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785, 787 (Evota); Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] VicRp 61; [1994] 2 VR 290, 295.
In WA Glass [No 2], referring to the often-cited decision of McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd,[24] the Court continued:[25]
Thus there must be an evidential basis for the asserted dispute. Mere assertion is insufficient. So too a claim that is spurious or fanciful is insufficient. The dispute must have a sufficient objective existence and prima facie plausibility.
The requirement is to refer to something more than the mere 'raising' of a dispute or, in the context of an offsetting claim, the mere 'making' of a claim. The provisions assume that the dispute or offsetting claim have an 'objective' existence the genuineness of which is capable of being assessed. The word 'genuine' is included to sound a note of warning that the propounding of spurious disputes or claims is to be expected but must be excluded from consideration.
Offsetting claim
[24] Eyota, 787.
[25] WA Glass [No 2] [48] - [50].
'Offsetting claim' is defined in s 459H(5) as:
… a genuine claim that the company has against the respondent by way of counterclaim, set-off or cross-demand (even if it does not arise out of the same transaction or circumstances as a debt to which the demand relates).
The principles to be applied in determining whether there is an offsetting claim for the purpose of s 459H(1)(b) were stated in Complete Hire & Sales Pty Ltd v Terra Firma Constructions Pty Ltd [No 2],[26] and summarised in WA Glass [No 2].[27] It is not necessary that I repeat them.
[26] Complete Hire & Sales Pty Ltd v Terra Firma Constructions Pty Ltd [No 2] [2018] WASCA 111 [15] ‑ [19].
[27] WA Glass [No 2] [105].
Plato Holdings' application to set aside the Demand
As outlined, Plato Holdings brings the Application on two bases. First, it contends there is a genuine dispute as to the existence of the Debt. Second, it claims it has an offsetting claim. I do not repeat the submissions made and evidence adduced on behalf of Plato Holdings in support of the Application. What follows is a summary.
Genuine dispute
It was submitted on behalf of Plato Holdings, in essence, that the Demand should be set aside because there is a genuine dispute as to whether the alleged Debt is payable. It says that the amount of $190,020 in the beneficiary account of the RM Trust is not a debt owed by Plato Holdings to MVP Financial as trustee for the MVP Unit Trust.
Plato Holdings contends that the amount of $190,020 reflects payment made to the RM Trust as payment for work undertaken and services rendered by Robert Marusco, pursuant to an arrangement agreed between MVP Financial and Mr Marusco, as a director of MVP Financial.[28]
[28] First Marusco Affidavit [60].
Robert Marusco refers to and attaches a copy of a heads of agreement titled 'MVP & LGS Heads of Agreement' dated 16 December 2014 (HOA).[29]
[29] First Marusco Affidavit [17], 'RM-9'.
It was submitted that the HOA provided for each of the directors at that time, Robert Marusco, Mr Verley and Mr Smith, to initially receive a salary of $150,000 per annum plus benefits to be reviewed from time to time. Robert Marusco refers to this as the 'Directors' Fees Term'.[30] He states, as a conclusion, that he, Mr Verley and Mr Smith agreed that their salaries for services to the Here Group would be paid by way of special income units to their respective trusts - the RM Trust, the Bambazonke Trust and the KLS Trust.[31]
[30] First Marusco Affidavit [19(d)].
[31] First Marusco Affidavit [25].
Robert Marusco also refers to and attaches minutes of meetings on 6 July 2016, 5 April 2019 and 27 March 2020, recording resolutions relating to variations to the amount of directors' fees and salaries.[32]
[32] First Marusco Affidavit [29], 'RM-12'.
Plato Holdings says that it disputed the Debt before the Demand was issued, by Mr Marusco, who advised Mr Tribut in April 2023 that the directors were paid by way of special income units and the amount claimed is 'ordinary employee remuneration'.[33] It also says that the directors' fees distributions attributable to the RM Trust have been accounted for as income in associated tax returns, copies of which are attached to the Second Tribut affidavit.[34]
[33] First Tribut Affidavit 'MT-10'.
[34] Second Tribut Affidavit 'MT-12'.
It was also submitted on behalf of Plato Holdings that the financial records adduced by MVP Financial cannot be relied upon to establish the Debt. In summary, it contends that:
(a)the financial records MVP Financial relies upon have not been signed or adopted by Plato Holdings' directors, were compiled exclusively for the benefit of the members of the MVP Unit Trust, and contain statements to the effect they have not been verified, validated or audited;[35]
(b)the beneficiary accounts are recorded as negative non-current liabilities, and the accompanying note directs the reader to a section entitled 'Beneficiary accounts' which provides a breakdown of beneficiary activity;[36]
(c)there are differences between the tax returns and the financial statements adduced by MVP Financial;[37] and
(d)the financial statements of Plato Holdings do not align with those of MVP Financial. Plato Holdings' financial statements were prepared by the same accounting firm, have been adopted by its directors and were relied upon in the filing of its income tax returns.[38]
[35] Plaintiff's outline of submissions [9(a)], [9(b)], [23(b)]; First Tribut Affidavit 'MT-11'; Third Marusco Affidavit [8] - [11], 'MT-11', 'MT-12'.
[36] Plaintiff's outline of submissions [9(c)], [24]; First Tribut Affidavit 'MT-11'.
[37] Plaintiff's outline of submissions [9(d)], [23(c)]; Third Marusco Affidavit [12] - [17]; 'RM-27'.
[38] Plaintiff's outline of submissions [23(d)].
As to the substance of the alleged dispute, it was submitted that, if Plato Holdings' arguments as to the reliability of the financial records are not accepted, there is evidence to show that Robert Marusco has performed work and is entitled to payment for the amounts shown in the beneficiary accounts for the RM Trust. Plato Holdings refers in this regard to its tax returns, which it says record those amounts as income.
Plato Holdings also submitted that the distributions to the unitholders, as recorded in the financial statements, are inconsistent with the allocation of profit and distributions required to be made under the terms of the MVP Unit Trust Deed.
Offsetting claim
Plato Holdings' offsetting claim is said to be for an amount of at least $158,782 in respect of:
(a)an agreement for the lease of premises in respect of which MVP Financial is liable to Plato Holdings for payment of outstanding rent in the amount of $68,357; and
(b)an unpaid loan of $90,425 alleged to be owed by MVP Financial to Plato Holdings under a loan facility, including interest accrued on the amount advanced.
Claim for outstanding rent
In relation to the alleged lease, Plato Holdings contends that on about 1 September 2017, Plato Holdings and Mutual Growth Pty Ltd, as lessors, entered into a lease agreement with MVP Financial, as lessee, of Lots 8, 9, 10 and 11, First Floor, 9 Bowman Street, South Perth (Lease Agreement). The property was to be used as an office by MVP Financial and was used as its registered office.[39]
[39] First Marusco Affidavit [53] - [59].
A copy of the Lease Agreement is attached to the First Marusco Affidavit.[40]
[40] First Marusco Affidavit [53], 'RM-22'.
Plato Holdings says it has an offsetting claim in respect of rent arrears of $68,357, as at the date of termination of the lease - 31 August 2022 - which have not been paid by MVP Financial.
Robert Marusco states, as a conclusion, that MVP Financial owed Plato Holdings rent arrears of $68,357 as at 31 August 2022.[41] Outstanding rent in this amount is included in the report on company activities and property (ROCAP) for MVP Financial completed by each of Robert Marusco and Mr Varley.[42] However, no statement or other record showing the alleged unpaid rent has been produced by Plato Holdings in support of this claim.
[41] First Marusco Affidavit [59]; Third Marusco Affidavit [34].
[42] First Tribut Affidavit [26] - [28], 'MT-9', 'MT-10'.
In the Third Marusco Affidavit, Robert Marusco deposes, and it is submitted on behalf of Plato Holdings that, the invoices for the rent payable under the Lease Agreement were issued to Here Accountants, who paid the rent on behalf of the Here Group companies. However, it says that it was MVP Financial, the parent company as lessee, that had the obligation to pay the rent under the Lease Agreement.[43]
Claim for repayment of loan
[43] Third Marusco Affidavit [30] - [31].
In relation to the alleged loan, Plato Holdings contends that:
(a)on about 17 August 2017, MVP Financial entered into a loan facility agreement with Plato Holdings as trustee for the RM Trust under which it agreed to advance up to $100,000 to MVP Financial (Loan Facility Agreement);
(b)the terms of the Loan Facility Agreement included, amongst others:
(i)that the amount advanced was to be repayable on demand with interest accruing at 9.65% per annum;
(ii)a provision for default interest in the event of default.[44]
[44] First Marusco Affidavit [35] - [37].
A copy of the Loan Facility Agreement is attached to the First Marusco Affidavit.[45] Mr Marusco initially deposed, in the First Marusco Affidavit, that Plato Holdings advanced $50,000 to MVP Financial on 17 August 2017. At the date of swearing that affidavit, he did not have access to the bank statements.[46]
[45] First Marusco Affidavit [35], 'RM-13'.
[46] First Marusco Affidavit [38].
In the Second Marusco Affidavit, Robert Marusco states, by reference to copies of bank statements subsequently obtained from National Australia Bank, that Plato Holdings advanced $78,000 to MVP Financial between 17 August 2017 and 3 October 2017.[47] He says that, to the best of his knowledge, that amount was advanced to MVP Financial pursuant to the Loan Facility Agreement.[48]
[47] Second Marusco Affidavit [5], 'RM-23'.
[48] Second Marusco Affidavit [8].
By letter dated 31 March 2023 sent in response to the liquidator's demand for payment of the Debt, on behalf of Plato Holdings, Robert Marusco demanded payment of $86,263. That amount was stated to be an advance of $50,000 made to MVP Financial by Plato Holdings under the Loan Facility Agreement together with interest at the rate of 9.75%.[49]
[49] First Marusco Affidavit [21], 'RM-15'.
Robert Marusco deposes, in the First Marusco Affidavit, that as at the date of that affidavit, the amount advanced to MVP Financial by Plato Holdings under the Facility Agreement had not been repaid and, with interest, the amount owing as at 31 December 2023 was $90,425.[50]
[50] First Marusco Affidavit [51] - [52], 'RM-21'.
MVP Financial's opposition to the Application
MVP Financial opposes the Application. Its position is that there is no genuine dispute and Plato Holdings has not established that it has a genuine offsetting claim. I do not repeat all of MVP Financial's submissions and the evidence adduced in opposition to the Application, which may be summarised as follows:
No genuine dispute
1.The financial statements of the MVP Unit Trust are clear and compelling evidence that the amount of $190,020 is an amount owed by Plato Holdings as trustee for the RM Trust to MVP Financial as trustee for the MVP Unit Trust, payment of which has been demanded and not paid.
2.The total of the beneficiary accounts, shows a deficit - negative $570,060, being 3 x negative $190,020, recorded in the MVP Unit Trust balance sheet for each of the years ended 30 June 2020[51] and 30 June 2021.[52] The amount of negative $190,020 is clearly recorded in the beneficiary account of the RM Trust, which reflects the amount paid to the RM Trust (by way of drawings) in excess of the profits/trust income it was entitled to receive, and money owed by the RM Trust to the MVP Unit Trust.[53]
[51] First Tribut Affidavit 'MT-11' page 221.
[52] First Tribut Affidavit 'MT-11' page 228.
[53] First Tribut Affidavit [41] - [42].
3.Plato Holding's submissions about the reliability of the financial statements have no merit and are an attempt to obscure the real issue. The matters raised do not make them unreliable or inadmissible for the purpose of the Application.
4.Although Robert Marusco says he has not authorised or approved the financial statements, he was, at all relevant times, an accountant and director of MVP Financial and the Here Group companies, including Here Accountants, who prepared the financial statements. Robert Marusco is named as the tax agent in the MVP Unit Trust's tax return for the year ended 30 June 2020.[54] He was also a director of Plato Holdings until 7 October 2022.
5.The financial statements of the MVP Unit Trust relied upon by MVP Financial are the written financial records that the company was required to keep by s 286 of the Act. They were provided by Mr Marusco to the liquidator as required under s 530A of the Act. They are admissible as prima facie evidence of the matters stated in them, as provided by s 1305 of the Act. No other books or records of MVP Financial or the MVP Unit Trust have been produced to contradict those in evidence.
6.The only basis upon which Plato Holdings advances a genuine dispute in the Application is that the amount of $190,020 was paid by MVP Financial to Plato Holdings as trustee for the RM Trust, as part of an arrangement between MVP Financial and Robert Marusco, for payment for the work he undertook and the services he rendered to MVP Financial. This is not supported on the evidence adduced by Plato Holdings. There is no record in the financial statements of any directors' fees or salaries being paid by MVP Financial. Such would be recorded in the accounts as an expense of MVP Financial, not an amount owed to it.
7.MVP Financial is not a party to the HOA relied upon by Plato Holdings as the genesis of the Directors Fee Term, under which Plato Holdings contends amounts were paid to the RM Trust for Robert Marusco's director's fees or salary. The HOA is between, and executed by, MVP Capital Pty Ltd (MV Capital) and Limmer Geddes & Smith Pty Ltd.[55] The resolution of 5 April 2019, referred to by Mr Marusco, refers to variations to the salaries of MVP Capital's directors.[56] MV Capital is the name by which Here Capital was formerly known.
8.There is no provision in the MVP Unit Trust Deed,[57] which governs the distribution of the trust income, for payments of directors' fees or salaries. Clause 7.8.1 of the MVP Unit Trust Deed provides, in effect, that the holder of a Discretionary Income Unit[58] is entitled to receive only such amount or proportion of the trust income as the trustee may, in its discretion, determine to apply or distribute to or set aside for the Discretionary Income Unit holders, or any one or more of them.
9.No other documents or other evidence have been identified or produced recording the terms upon which any payment of directors' fees or salaries were to be made, or have been made, to the respective trusts, or to evidence such payments.[59]
No offsetting claim
[54] First Tribut Affidavit 'MT-11' page 271.
[55] First Marusco Affidavit 'RM-9' page 210.
[56] First Marusco Affidavit 'RM-12' page 352.
[57] First Tribut Affidavit [54], 'MT-14'.
[58] As defined in cl 3.1.6 of the Trust Deed.
[59] First Tribut Affidavit [46] - [49].
MVP Financial refutes Plato Holdings asserted offsetting claims for outstanding rent and for repayment of the loan. It says, in effect, that both are implausible and unsupported on the evidence.
Claim for outstanding rent
Amongst other matters, Mr Tribut deposes that he has reviewed the books and records of MVP Financial and Here Accountants and there is no record of any outstanding rent owed by MVP Financial to Plato Holdings, or of MVP Financial being charged or having paid rent to Plato Holdings.[60] He also says that no rent has been recorded as an expense of MVP Financial and there is no record of any outstanding rent statement or invoices for rent having been issued to it by Plato Holdings.[61]
[60] First Tribut Affdavit [81].
[61] First Tribut Affdavit [82].
Attached to the First Tribut Affidavit are copies of invoices from the RM Trust to Here Accountants for the period 1 April 2021 to 1 June 2022.[62] Mr Tribut states, and it is submitted that, this is consistent with the ROCAPs completed by each of Robert Marusco and Mr Verley, which state that MVP Financial was not a trading company, but solely a trustee investment vehicle designed to hold interests for the purpose of distributing income.[63]
[62] First Tribut Affidavit [83] - [84], 'MT-22'.
[63] First Tribut Affdavit [85].
MVP Financial submits that, in any event, the total of the invoices is much less than the $68,357 claimed to be outstanding, and the alleged rent arrears are not established on the evidence adduced by Plato Holdings.
Claim for repayment of loan
MVP Financial does not dispute the loan facility or that funds were advanced to it by the RM Trust. It says there is no offsetting claim because it has repaid the amount advanced.
Mr Tribut deposes that the bank statements attached to the Second Marusco Affidavit are incomplete in that they only relate to the relevant advances, and no statements have been provided for the period coinciding with repayments made by MVP Financial to the RM Trust.[64]
[64] First Tribut Affidavit [66] - [67].
Mr Tribut deposes to having reactivated MVP Financial's Xero accounting software system and recovering the loan facility ledger that corresponds to the loan facility the subject of Plato Holdings' alleged offsetting claim.[65] A copy of the ledger is attached to the First Tribut Affidavit.[66]
[65] First Tribut Affidavit [62].
[66] First Tribut Affidavit [63], 'MT-19'.
MVP Financial submits that the Xero ledger records that the loan was repaid in full, with interest, by no later than 4 October 2018. Mr Tribut deposes that the Xero ledger records that all transactions occurred between 21 September 2017 and 4 October 2018, and that the balance was zero as at both 30 June 2018 and 30 June 2019. A such, the loan facility was not included in the end of year financial statements, having been repaid in full by the end of each relevant accounting period.[67]
[67] First Tribut Affidavit [69] - [71].
Mr Tribut states, and it is submitted that, this is also consistent with MVP Financial's most recent financial statement, for the year ended 30 June 2021, in which the only 'Inter Entity Loan' recorded is the amount of $222,653, being an amount MVP Financial owed to Here Accountants.[68] A statutory demand was issued to MVP Financial by Mr Tribut, as liquidator of Here Accountants, which was not satisfied and ultimately resulted in his appointment as liquidator of MVP Financial.[69]
[68] First Tribut Affidavit [72].
[69] First Tribut Affidavit [73] - [74], 'MT-20'.
Mr Tribut deposes that there is no other entry in MVP Financial's books and records which reflects any loan between it and Plato Holdings. It is submitted that this is consistent with the absence of any interest expenses or liabilities that correspond to the loan facility.[70]
[70] First Tribut Affidavit [75] - [76].
In the Second Tribut Affidavit, Mr Tribut deposes to further information extracted from the Xero software ledger for the loan facility. He attaches a reconciliation of repayment of $58,000 from MVP Financial to the RM Trust on 19 December 2017,[71] and a copy of the print screen of the bank feed for MVP's bank account. He also attaches the same information and records in relation to repayment of $77,439.49 from MVP Financial to the RM Trust on 4 October 2018.[72]
[71] Second Tribut Affidavit [7] - [10], 'MT-23', 'MT-24'.
[72] Second Tribut Affidavit [11] - [12], 'MT-25', 'MT-26'.
MVP Financial refers to the history and notes of each reconciliation, which state 'Reconciled by Dawn Macaluso' and to the First Marusco Affidavit, in which Robert Marusco refers to Dawn Macaluso and states that in her role as Group General Manager, Mrs Macaluso prepared company group financial statements, amongst other things.[73]
[73] First Marusco Affidavit [33].
Determination
The key issues for determination are:
1.Whether there is a genuine dispute as to the existence or amount of the Debt.
2.Whether Plato Holdings has an offsetting claim.
3.If Plato Holdings has an offsetting claim, in what amount?
4.Should the Demand be set aside or varied?
In determining the Application, I have kept in mind that I am required to determine whether there is a genuine dispute or claim, which exists in fact, and not to resolve the dispute or offsetting claim, or attempt to predict its outcome. Is there a serious question warranting further investigation? As outlined, and as observed by Mitchell J in CA & Associates,[74] the question for the court in considering an application to set aside a statutory demand is whether the existence of the dispute provides a reason, other than insolvency, as to why the demanded amount has not been paid.
Is there a genuine dispute?
[74] CA & Associates [91].
Although the threshold for establishing a 'genuine dispute' for the purpose of s 459H(1)(a) is low, I am not satisfied that Plato Holdings has demonstrated the dispute contended is bona fide and truly exists in fact. I am not persuaded the matters asserted give rise to a plausible contention requiring further investigation - that there is a serious question to be tried.
I accept the submissions made on behalf of MVP Financial to the effect that the financial statements of the MVP Unit Trust are prima facie evidence of the matters stated in them and evidence an amount of $190,020 owed to it by the RM Trust, of which Plato Holdings is trustee.
Section 1305 of the Act provides:
Admissibility of books in evidence
(1)A book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book.
(2)A document purporting to be a book kept by a body corporate is, unless the contrary is proved, taken to be a book kept as mentioned in subsection (1).
As to the form in which books are to be kept by a body corporate and their evidentiary value, s 1306 of the Act provides, relevantly:
Form and evidentiary value of books
(1)A book that is required by this Act to be kept or prepared may be kept or prepared:
(a)by making entries in a bound or looseleaf book; or
(b)by recording or storing the matters concerned by means of a mechanical, electronic or other device; or
(c)in any other manner approved by ASIC.
(2)Subsection (1) does not authorise a book to be kept or prepared by a mechanical, electronic or other device unless:
(a)the matters recorded or stored will be capable, at any time, of being reproduced in a written form; or
(b)a reproduction of those matters is kept in a written form approved by ASIC.
…
(5)If:
(a)because of this Act, a book that this Act requires to be kept or prepared is prima facie evidence of a matter; and
(b)the book, or a part of the book, is kept or prepared by recording or storing matters (including that matter) by means of a mechanical, electronic or other device;
a written reproduction of that matter as so recorded or stored is prima facie evidence of that matter.
(6)A writing that purports to reproduce a matter recorded or stored by means of a mechanical, electronic or other device is, unless the contrary is established, taken to be a reproduction of that matter.
Section 1305 of the Act operates to dispense with the need to authenticate the books and records of a company, where those documents are kept pursuant to a requirement under the legislation. The provision does not make the books conclusive evidence of the matters they contain, in the sense of requiring the tribunal of fact and make a finding in terms of the content of the books in the absence of proof to the contrary by the opposing party.[75] Rather, the books are prima facie evidence of the matters stated in them. The weight of that evidence is to be measured in accordance with the common sense of the tribunal of fact.[76]
[75] Delta Resource Management Pty Ltd (In Liquidation) v McKay [2024] WASC 423 (Delta Resource Management v McKay) [29], referring to Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 (ASIC v Rich); (2009) 75 ACSR 1 [396] (Austin J); Australian Karting Association Ltd v Karting (New South Wales) Incorporated [2022] NSWCA 188 [128] - [140] (Gleeson JA, Meagher JA and Simpson AJA agreeing); and Stone v Mizzi [2024] FCA 696 [49] - [50] (Halley J); R P Austin & A Black, Austin & Black's Annotations to the Corporations Act, LexisNexis [9.1300].
[76] Delta Resource Management v McKay [29]; ASIC v Rich [396] - [397] (Austin J).
As observed by Lundberg J in Delta Resource Management v McKay, for the purpose of s 1305 of the Act, a book is 'kept' if it is retained or held by the company under a requirement of the Act, or is a part of the documents or records maintained by the corporation in a systematic or periodic manner.[77] If a document purports to be a book 'kept' by the company then there is a rebuttable presumption that it is a book for the purposes of the provision.[78]
[77] Delta Resource Management v McKay [30], referring to ASIC v Rich [296] - [298].
[78] Delta Resource Management v McKay [30], referring to R P Austin & A Black, Austin & Black's Annotations to the Corporations Act, LexisNexis [9.1300], and for examples of documents that have been found admissible under s 1305 Residues Treatment and Trading Company Ltd v Southern Resources Ltd (1989) 52 SASR 54; 15 ACLR 416; Linfox Transport (Aust) Pty Ltd v Arthur Yates & Co Ltd [2003] NSWSC 876; (2003) 47 ACSR 261.
That presumption has not been rebutted in this case. As submitted on behalf of MVP Financial, the financial statements relied upon are those produced to the liquidator by Robert Marusco. No other financial statements have been produced.
The financial statements for the MVP Unit Trust for the years ended 30 June 2020 and 30 June 2021 clearly record an amount owed by the RM Trust to MVP Financial, as claimed. Relevantly, the financial statements include, using those for the year ended June 2021:[79]
[79] First Tribut Affidavit 'MT-11' pages 227 - 232.
(a)an Income Statement, which records:
(i)Total Income received of $343,519, being the sum of Dividend Income of $330,048 and Interest Received of $13,471;
(ii)Total Expenses of $18,499, being the sum of Accounting Fees, Bank Charges, Interest Paid and Interest Paid - Convertible Note;
(iii)Profit Before Distribution of $325,020, being the sum of Total Income of $343,519 less Total Expenses of $18,499; and
(iv)Total Distribution of Trust Income of $293,819, being distribution of the profit/trust income.
(b)Balance Sheet, which records that the MVP Unit Trust had Net Assets and Equity of $1,417,009, being the sum of Total Assets less Total Liabilities. Included in Non-Current Liabilities 'Beneficiaries' Accounts' in a negative amount of '($570,060)' with a note to refer 'Beneficiary Accounts' for a breakdown of beneficiary activity.
(c)Trust Income Distribution Statement, which records:
(i)Current Year Earnings and Net Trust Income for Distribution of $325,020;
(ii)Total Distributions to Beneficiaries of $293,819, being the sum of $71,669 distributed to the RM Trust, $150,000 distributed to the KLS Trust, $72,150 distributed to the Bambazonke Trust and undistributed trust income of $31,201;
(d)Beneficiary Accounts Statement, which records a total negative balance of ($570,060) and, for each beneficiary or unitholder sets out:
(i)the Opening Balance, which is carried forward from the previous year, which for the RM Trust is negative $190,020;
(ii)Share of Profit, being the amount of profit/trust income distributed to the beneficiary, as recorded in the Trust Income Distribution statement, which for the RM Trust is $71,669;
(iii)Drawings, which is recorded as a negative amount, being money paid out to the beneficiary, and which for the RM Unit Trust is $71,669; and
(iv)Total, being the sum of the items referred to in (i) - (iii) above, which for the RM Unit Trust is the amount claimed of negative $190,020.
I accept MVP Financial's submission to the effect that the negative amount recorded in the RM Trusts Beneficiary Account reflects the amount drawn by/paid to the beneficiaries (unitholders) in excess of profit/trust income. I also accept that the negative amount of $190,020 is an amount owed to MVP Financial as trustee for the MVP Unit Trust by Plato Holdings as trustee for the RM Trust. This is evident when the financial statements are read as a whole and having regard to the balances carried forward from the previous years' financial statements.
I do not accept Plato Holdings' contention to the effect that the amount of $190,020 is not an amount owed by the RM Unit Trust because it is recorded as a non-current liability. It is recorded as a negative amount - an amount owed - and payment of it has been demanded.
I do not accept Plato Holdings' submission to the effect that the financial statements of the MVP Unit Trust cannot be relied upon, or are incorrect, because they are inconsistent with the allocation of profit and distributions required to be made under the terms of the MVP Unit Trust Deed. Even if that were so, that would not necessarily mean that what is recorded in the statements is incorrect. That is not supported on the evidence. Nor are Plato Holding's other contentions as to the unreliability of the financial statements.
As to Plato Holding's contention that the amount shown in the Beneficiary Account for the RM Trust is not an amount owed by it, but represents payment made for Robert Marusco's directors' fees or salary, that is not supported on the evidence, for the reasons submitted on behalf of MVP Financial, which I accept.
There is no provision in the MVP Unit Trust Deed or the MVP Financial Shareholders and Unitholders General Agreement,[80] which post‑date the HOA, for payments of directors' fees or salaries from the MVP Unit Trust. There is no evidence of any other documents recording the terms upon which any payment of directors' fees or salaries were to be made or have been made to the RM Trust (or any of the trusts) by MVP Financial on behalf of the MVP Unit Trust, or to evidence any such payments.[81]
[80] MVP Financial Shareholders and Unitholders General Agreement dated 30 March 2017: First Tribut Affidavit [56], 'MT-15'.
[81] First Tribut Affidavit [46] - [49].
It is not enough for Plato Holdings to assert a dispute. It must also provide an evidential basis for it. I am not satisfied, on the evidence adduced, that there is a plausible contention requiring further investigation, such as to give rise to a genuine dispute.
Has Plato Holdings established it has an offsetting claim?
Claim for outstanding rent
There is no evidence to support Plato Holdings' asserted offsetting claim in respect of rent arrears of $68,357, said to have been owed to it by MVP Financial as at the date of termination of the lease - 31 August 2022, or if such amount was outstanding at that date, that it remains outstanding.
Robert Marusco states, as a conclusion, that MVP Financial owed Plato Holdings rent arrears of $68,357 as at 31 August 2022. However, no statement or other record showing the alleged unpaid rent has been produced by Plato Holdings in support of this claim.
Mr Tribut, as the liquidator of MVP Financial, has reviewed its books and records. He has found no record of any rent statements or invoices issued to it by Plato Holdings, nor of any outstanding rent owed by MVP Financial to Plato Holdings, of MVP Financial being charged or having paid rent to Plato Holdings, or any rent.[82]
[82] First Tribut Affdavit [81] - [82].
There are no invoices, statements, accounts or other records verifying the rent alleged to be owing to Plato Holdings by MVP Financial. The only references to it are in the brief statement made in the ROCAP for MVP Financial completed by each of Robert Marusco and Mr Varley to the effect that the MVP Unit Trust owes the office landlords rent of $68,357.[83]
[83] First Tribut Affidavit [27], 'MT-9' pages 154 and 161; [28], 'MT-10' pages 169 and 176.
As for a genuine dispute, Plato Holdings must do more than merely assert or state as a conclusion that MVP Financial owes rent arrears to the RM Trust. There is insufficient evidence to support a plausible offsetting claim in relation to the alleged rent arrears.
Claim for payment of loan and interest
As to the claim asserted for repayment of the loan and accrued interest, Plato Holdings has not adduced evidence to demonstrate that the amount claimed is due and owing, or to refute MVP Financial's contention that the loan has been repaid in full.
Plato Holdings has not produced bank statements to support its claim that the amount of $78,000 advanced to MVP Financial has not been repaid. As submitted on behalf of MVP Financial, it has only produced statements showing the amounts advanced to MVP Financial and not those for the period in which repayments were made.
Plato Holdings submitted that the Xero software ledger for the loan facility adduced and relied upon by MVP Financial is not a record of MVP Financial, but has been created by the liquidator. It was also submitted that it had not been reconciled to the relevant bank statements.
In relation to the first of those matters, Tottle J considered the admissibility of data and reports generated using accounting software in Bryan Kevin Hughes as liquidator of Westgem Investments Pty Ltd (In Liquidation) (Receivers and Managers Appointed) v Commonwealth Bank of Australia Ltd.[84] His Honour referred to and agreed with Austin J's conclusion in ASIC v Rich,[85] that s 1305(1) of the Act allows a company's books to be introduced into evidence without any authenticating evidence by any witness, and allows the books to be relied upon to prove transactions recorded in them.[86]
[84] BryanKevin Hughes as liquidator of Westgem Investments Pty Ltd (In Liquidation) (Receivers and Managers Appointed) v Commonwealth Bank of Australia Ltd [2018] WASC 150 (Hughes v Commonwealth Bank).
[85] ASIC v Rich [399] - [400].
[86] Hughes v Commonwealth Bank [18].
Tottle J also stated that the effect of s 1305(2), when applied to a document maintained in electronic form viewable on a computer screen, is that if the document purports to be a book kept by a body corporate, it is, without more, taken to be kept by the body corporate for the purposes of s 1305(1), unless the contrary is proved.[87] Applying the same reasoning, his Honour concluded that the effect of s 1306(6) is that if a book or part of a book which records or stores matter in electronic form is printed - that is, a written reproduction is created - the writing that purports to reproduce the matter recorded is, without more, taken to be a reproduction of the matter, unless the contrary is proved.[88]
[87] Hughes v Commonwealth Bank [20].
[88] Hughes v Commonwealth Bank [21]. See also [27] - [30].
The Xero ledger relating to the loan facility and the reconciliation of the payments recorded against the relevant bank transactions are copies of printouts generated from the accounting software used by MVP Financial. Applying the rationale referred to and applied by Tottle J in Hughes v Commonwealth Bank, the evidence relied upon by MVP Financial is to be taken as a written reproduction of those matters recorded in the company's books, unless the contrary is proved. There is no evidence to the contrary.
The entries included in the reconciliation that relate to loan repayments made to the RM Trust from MVP Financial refer to 'Bank Feed' as the source. They record reconciliation of payments from MVP Financial's account to the RM Trust of $58,000 on 19 December 2017 and $77,439.49 on 4 October 2018.[89] These correspond with the repayments recorded in the Xero ledger for the loan facility leaving a zero balance as at 4 October 2018.[90]
[89] Second Tribut Affidavit 'MT-23 (marked 'MT-2'), pages 12 and 31.
[90] First rebut Affidavit 'MT-19'.
Plato Holdings has not produced any evidence to contradict the entries in the Xero accounting software records. Its financial statements for the year ended 30 June 2019 do not record any amount owed to it by MVP Financial by way of loan, or otherwise.[91]
[91] Third Marusco Affidavit, 'RM-26'.
On the evidence before the court, I am not persuaded that Plato Holdings has demonstrated it has a plausible offsetting claim in respect of the amount alleged to repayable under the Loan Facility Agreement by MVP Financial. This is not a matter that warrants further investigation.
Should the Demand be set aside or varied?
Having determined there is no genuine dispute or offsetting claim, the Demand should not be set aside or varied.
Conclusion and orders
For these reasons, I am not satisfied there is a genuine dispute as to the existence or the amount of the Debt or that Plato Holdings has a genuine offsetting claim. In the circumstances, the Demand should not be set aside or varied. The Application should be, and is, dismissed. An order will be made to that effect.
I will hear from the parties in relation to the costs of the Application and any further orders sought. As to the costs of the Application, subject to hearing from the parties, there does not appear to be any reason why costs should not follow the event and Plato Holdings, having been unsuccessful, should pay MVP Financial's costs of the Application, to be taxed if not agreed.
The parties should confer in relation to costs and any further orders sought and, within seven (7) days of the date of these orders:
(a)if agreement is reached, file a memorandum of consent orders;
(b)if agreement is not reached, each party is to file a minute of their proposed orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Acting Associate to Master Russell
9 JUNE 2025
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