| 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…
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- Case
- [2022] VSC 438
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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