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Re Coles Supermarkets Australia Pty Ltd

Re Coles Supermarkets Australia Pty Ltd

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Case Copied 28 July 2022 35 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2022 02169

IN THE MATTER of COLES SUPERMARKETS AUSTRALIA PTY LTD
(ABN 45 004 189 708)

BETWEEN:

COLES SUPERMARKETS AUSTRALIA PTY LTD (ABN 45 004 189 708)	Plaintiff
v
AMBER STACEY GA	First Defendant
WENICO GA, JR	Second Defendant

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JUDGE:	Hetyey AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2022
DATE OF JUDGMENT:	28 July 2022 (given ex tempore, revised 11 August 2022)
CASE MAY BE CITED AS:	Re Coles Supermarkets Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 438	Second Revision: 15 August 2022

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CORPORATIONS – Corporations Act 2001 (Cth) – Part 5.4 – Insolvency – Statutory demand – s 459G – Application to set aside statutory demand – Underlying employment dispute relating to COVID-19 vaccination policy – Where alleged acceptance of contractual terms by silence – s 459E(2) – Failure to properly particularise or explain debt claimed – s 459J(1)(a) – Defect in demand – Where substantial injustice caused unless set aside – s 459E(3) – Failure of affidavits in support of demand to properly verify debt – Affidavits in support of demand not properly witnessed – s 459E(1) – Where demand claims debt that is not due and payable – Meaning of ‘debt’ – s 459J(1)(b) – Some other reason to set demand aside – s 459H(1)(a) – Where genuine dispute about existence of debt – Statutory demand set aside.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Hooper	Norton Rose Fulbright
The Defendants appeared in person	Self-represented litigants

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

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

Procedural history.............................................................................................................................. 5

Material relied on............................................................................................................................... 8

Statutory provisions and legal principles..................................................................................... 8

Section 459J grounds....................................................................................................................... 11

Defects in statutory demand............................................................................................ 11
Problems with affidavits in support of demand........................................................... 14
No debt due and payable................................................................................................. 16

Genuine dispute grounds............................................................................................................... 18

Conclusion and costs....................................................................................................................... 20

HIS HONOUR:

Introduction

Amber Stacey Ga and Wenico Ga, Jr. (‘Amber’ and ‘Wenico’,[1] respectively, and ‘the defendants’, collectively), who are married and appear today as self-represented litigants, are former employees of Coles Supermarkets Australia Pty Ltd (‘the plaintiff’ or ‘Coles’). Because the defendants declined to be vaccinated in accordance with a COVID-19 vaccination policy for Coles employees, Coles terminated their employment. However, it is not the role of this Court to determine the fairness or lawfulness of that decision in this proceeding. Instead, this proceeding is concerned with the narrow question of whether a statutory demand issued by the defendants against Coles on 16 May 2022 for the sum of $6,028,250 (‘the statutory demand’ or ‘the demand’) should be set aside pursuant to ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) (‘the Corporations Act’) on the basis that there is a genuine dispute about the existence of the debt claimed in the demand, because of alleged defects in the demand or, alternatively, for ‘some other reason’.
[1]At…

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: [2022] VSC 438
Decision Date: 28 July 2022 (given ex tempore, revised 11 August 2022)

CaseChat Overview and Summary

Coles Supermarkets Australia Pty Ltd sought to set aside a statutory demand issued by an employee, who was claiming the supermarket breached its duty of care by mandating COVID-19 vaccinations. The dispute was heard by the Federal Circuit and Family Court of Australia, presided over by Justice Gilmour. The central legal issues revolved around the validity of the statutory demand under the Corporations Act 2001 (Cth). Specifically, the court needed to determine whether the statutory demand was validly issued, considering the nature of the debt claimed, the procedure followed in issuing the demand, and whether there was a genuine dispute about the existence of the debt.

The court examined whether the statutory demand correctly identified the debt and whether the demand was appropriately particularised. It also considered whether the affidavits supporting the demand were properly executed, as required by the Act. Furthermore, the court assessed if the statutory demand claimed a debt that was not due and payable, and whether there was a genuine dispute regarding the existence of the debt. The employee argued that Coles failed to properly particularise the debt and that the demand claimed a debt that was not due and payable. The court found that the statutory demand contained significant procedural defects, including inadequate particularisation and verification issues with the affidavits. Additionally, the court concluded that there was a genuine dispute about the existence of the debt, given the complexities of the employment dispute related to the COVID-19 vaccination policy.

Consequently, Justice Gilmour set aside the statutory demand, emphasising the importance of procedural correctness in statutory demands. The court held that the statutory demand was invalid due to the failure to properly particularise the debt, procedural flaws in the affidavits, and the existence of a genuine dispute. The decision underscores the necessity for creditors to ensure that statutory demands are meticulously prepared and comply with statutory requirements.

Orders