Legal Research
Cases
Re BRC Group

Re BRC Group

Case [2024] VSC 563 11 September 2024

Statutory Demand

Loan Agreement

Procedural Fairness

Corporate Law & Governance

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2024 01494

IN THE MATTER of BRC GROUP PTY LTD (ACN 620 080 659) AS TRUSTEE FOR BRC GROUP UNIT TRUST

BETWEEN:

BRC GROUP PTY LTD (ACN 620 080 659) AS TRUSTEE FOR BRC GROUP UNIT TRUST	Plaintiff
v
WATAGAN PARK PTY LTD (ACN 128 663 749) AS THE TRUSTEE FOR CLANCY FAMILY TRUST MKT2	Defendant

---

JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2024
DATE OF JUDGMENT:	11 September 2024
CASE MAY BE CITED AS:	Re BRC Group
MEDIUM NEUTRAL CITATION:	[2024] VSC 563

---

CORPORATIONS – Application to set aside statutory demand pursuant to s 459G of the Corporations Act 2001 (Cth) – Statutory demand based on loan agreement – Plaintiff’s affidavit filed with application alleges there was no concluded loan agreement – Plaintiff subsequently sought to contend that there was a loan agreement but on different terms to those relied on by the defendant – Whether plaintiff precluded from relying on the ground that there was a concluded loan agreement but on different terms – Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452; Sceam Construction Pty Ltd v Clyne and Anor (2021) 64 VR 404 considered – Held: plaintiff precluded from relying on ground not raised in affidavit filed with application – Whether the contention that there was a loan agreement, but on different terms to that alleged by the defendant, is ‘genuine’ – Creata (Aus) Pty Ltd v Faull (2018) 125 ACSR 212, Re Sceam Constructions Pty Ltd [2021] VSC 437 and Re Showground Corporation Pty Ltd [2022] NSWSC 1491 considered – Held: dispute as to the terms of the loan agreement, even if raised by the affidavit filed with the application, is not genuine – Held: plaintiff failed to establish genuine dispute – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Miller	Colin Biggers & Paisley
For the Defendant	Mr S L Freire	Kalus Kenny Intelex

TABLE OF CONTENTS

Introduction

Background

Consultancy Services Agreement
Equity Right Agreement
Loan Agreement

Legal principles

What ground of dispute is raised in the 21 day affidavit?

Genuine dispute

Is there a serious question or plausible contention that the debt is not owing because there was no Loan Agreement?
Is there a serious question or plausible contention that the debt is not owing on the proper construction of the Loan Agreement?
Is the serious question or plausible contention ‘genuine’?

Defects and Interest

Conclusion

HIS HONOUR:

Introduction

This is an application by the plaintiff pursuant to s 459G(1) of the Corporations Act 2001 (Cth) (‘Act’) to set aside a statutory demand served on it by the defendant on 12 March 2024 claiming a debt totalling $1,044,372.42 pursuant to a loan agreement between the plaintiff and defendant.
The plaintiff relies on the:
(a)affidavit of Mark Hayden Dinnison filed on 2 April 2024 (‘21 day affidavit’);
(b)affidavits…

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.

Continue reading Re BRC Group

Details

AGLC: Re BRC Group [2024] VSC 563
Case: [2024] VSC 563
Decision Date: 11 September 2024

CaseChat Overview and Summary

The parties in this case are the plaintiff, BRC Group, and the defendant, whose identity is not specified in the decision. The dispute revolves around an application by the plaintiff to set aside a statutory demand under section 459G of the Corporations Act 2001. The statutory demand is based on an alleged loan agreement, and the plaintiff argues that either there was no concluded loan agreement or, alternatively, that there was one but on different terms than those relied upon by the defendant. The case was heard in the Supreme Court of Victoria. The court was tasked with deciding whether the plaintiff was precluded from asserting that there was a concluded loan agreement but on different terms, and whether the contention about the terms of the loan agreement constituted a genuine dispute.

The court examined whether the plaintiff was precluded from asserting the existence of a concluded loan agreement but on different terms. It referenced previous cases, including Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund and Sceam Construction Pty Ltd v Clyne and Anor, to conclude that the plaintiff was indeed precluded from relying on this ground as it was not raised in the affidavit filed with the application. The court also assessed whether the dispute about the terms of the loan agreement was genuine, considering cases such as Creata (Aus) Pty Ltd v Faull, Re Sceam Constructions Pty Ltd, and Re Showground Corporation Pty Ltd. The court held that even if the dispute about the terms of the loan agreement was raised by the affidavit filed with the application, it was not genuine. Consequently, the plaintiff failed to establish a genuine dispute.

The Supreme Court of Victoria dismissed the plaintiff's application to set aside the statutory demand. The court found that the plaintiff was precluded from asserting that there was a concluded loan agreement but on different terms, and that the dispute about the terms of the loan agreement was not genuine. Therefore, the plaintiff's application was unsuccessful.

Orders