Re J Build Developments Pty Ltd
[2022] VSC 434
•4 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2021 04062
IN THE MATTER of J BUILD DEVELOPMENTS PTY LTD (ACN 142 153 544)
BETWEEN:
| J BUILD DEVELOPMENTS PTY LTD (ACN 142 153 544) | Plaintiff |
| v | |
| AIRCONDITIONING AND ELECTRICAL SERVICES (AUST) PTY LTD (ACN 132 544 793) | Defendant |
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JUDGE: | Hetyey AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 February 2022 |
DATE OF JUDGMENT: | 4 August 2022 |
CASE MAY BE CITED AS: | Re J Build Developments Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VSC 434 |
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CORPORATIONS – Corporations Act 2001 (Cth) – Part 5.4 – Insolvency – Statutory demand – s 459G – Application to set aside statutory demand – s 459H – Building and Construction Industry Security of Payment Act2002 (Vic) – Whether genuine dispute under s 459H(1)(a) that the defendant’s invoice is a ‘payment claim’ for purpose of s 14 of the Building and Construction Industry Security of Payment Act2002 (Vic) – Whether invoice served out of time and/or includes an ‘excluded amount’ – Whether plaintiff precluded from raising other genuine dispute grounds – Whether offsetting claim – s 459J(1)(b) – Where offsetting claim not raised in s 459G affidavit – Whether demand and supporting affidavit ambiguous in referring to debt – Whether failure to verify debt because affidavit refers to monies owing under invoice as opposed to contractual basis of debt – Whether some other reason to set aside statutory demand.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Tennant | Ward & Co. Legal Consultants Pty Ltd |
| For the Defendant | Ms S Hooper | Mark Croft Legal |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Background......................................................................................................................................... 1
Statutory provisions and legal provisions.................................................................................... 6
Application of the SOP Act............................................................................................................ 12
Whether the second invoice served out of time and not a valid progress claim..... 14
Whether second invoice includes an excluded amount.............................................. 17
Other matters concerning the applicability of the SOP Act........................................ 20
Conclusion on application of the SOP Act..................................................................... 20
Whether genuine dispute about debt claimed in statutory demand..................................... 21
Relevant evidence.............................................................................................................. 21
Consideration..................................................................................................................... 24
Offsetting claims.............................................................................................................................. 29
Section 459J grounds....................................................................................................................... 32
Whether demand and supporting affidavit ambiguous in referring to debt........... 32
Whether affidavit in support fails to verify nature of debt claimed in demand...... 34
Conclusion......................................................................................................................................... 38
HIS HONOUR:
Introduction
By originating process dated 3 November 2021 and pursuant to ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) (‘the Act’), J Build Developments Pty Ltd (‘the plaintiff’ or ‘J Build’) seeks to set aside a statutory demand dated 14 October 2021 (‘the statutory demand’ or ‘the demand’) served on it by Airconditioning and Electrical Services (Aust) Pty Ltd (‘the defendant’ or ‘AES’). Unlike many other applications to set aside statutory demands, a feature of this case is that the plaintiff relies upon the express written terms of an agreement between the parties to establish a genuine dispute about the existence of the underlying debt. By contrast, the defendant, in contending that no such dispute exists, principally relies upon an alleged oral conversation between the directors of the parties.
Background
On 26 June 2020, J Build entered into a $2.9 million building contract with Abboud Corporates Pty Ltd by which it agreed to construct three double-storey residential dwellings at 10 Glyndon Road, Camberwell, Victoria (‘the head contract’ and ‘the property’, respectively). Prior to formally entering into the head contract, J Build sought the services of AES, which is a mechanical and electrical services provider specialising in heating, ventilation, air conditioning and associated electrical work.
On or about 24 February 2020, Jamiel Daou, who is a director of J Build, sent a text message to Brett Edward Wright, who is the sole director of the defendant, asking for AES to provide a quotation for the supply and installation of air-conditioning systems in each of the units at the property, specifically for ducted heating and cooling (‘the sub-contracting works’). Following the text message, Mr Wright and Mr Daou had a telephone conversation, although the contents of that conversation are an issue of contention.
On 26 February 2020, Mr Wright caused a credit check to be undertaken by the plaintiff, which proved to be satisfactory. On 5 March 2020, the defendant provided the plaintiff with a quotation for services (‘the first quotation’). The contract price contained in the first quotation was $88,002.64 (inclusive of goods and services tax (‘GST’)).
Mr Wright has given evidence that he and Mr Daou then spoke by telephone to discuss the terms of the proposed work. The contents of that alleged telephone conversation are disputed by Mr Daou and are a matter to which I will return.
Some time prior to 22 October 2020, the plaintiff requested that revisions be made to the first quotation. On 22 October 2020, the defendant issued a second quotation, which revised the scope of work to be performed under the sub-contracting arrangement between the parties (‘the second quotation’). The contract price contained in the second quotation was $101,507.09 (inclusive of GST).
On or around 27 October 2020, the parties discussed a further variation to the sub‑contracting arrangement. In particular, it was proposed that Fujitsu reverse cycle ducted units, rather than gas-ducted heaters, would be installed in the second and third units at the property. That variation was expected to provide a cost saving to the plaintiff of between $5,000 and $6,000 and reduce the contract price contained in the second quotation (‘the revised second quotation’).
On 28 October 2020, Mr Wright emailed Mr Daou requesting confirmation of the second quotation, as amended by the revised second quotation. That same day, Mr Daou responded via email simply with the word ‘[a]pproved’. Aside from this email exchange, there does not appear to be any further documentation relating to the revised second quotation.
AES commenced works shortly after receiving confirmation of the second revised quotation.
On 31 October 2021, AES issued an invoice numbered 5865 for $16,874.55 (inclusive of GST) in respect of work performed between 28 October 2020 and 31 October 2020 (‘the first invoice’). This invoice was stated to be payable by 14 November 2020 but was paid in full by J Build on 7 December 2020.
On or around 5 February 2021, Mr Wright and Mr Daou attended a site meeting at the property, during which they discussed the need for further variations to AES’ scope of work. Those variations were prompted by requests from prospective purchasers of units at the property and included additional air conditioning units, the substitution of a ducted heating unit and the upgrade of certain existing air conditioning units to accommodate for larger kilowatt capacity.
On 14 May 2021, AES issued J Build with a further revised quotation, documenting additional proposed revisions to the scope of work and increasing the contract price to $109,047.31 (inclusive of GST) (‘the third quotation’). A signed acceptance of the third quotation was returned to AES via email that same day.
The terms and conditions of the first quotation, second quotation, revised second quotation and third quotation will be referred to more fully later in these reasons.
On 31 May 2021, the defendant rendered an invoice numbered 6394 in the sum of $81,504.61 (inclusive of GST) (‘the second invoice’) and emailed it to the plaintiff. The second invoice required payment by 30 June 2021. However, AES did not receive payment from J Build by this time. As a consequence, in or around July 2021, AES ceased carrying out further works on the property.
On 22 July 2021, J Build made a payment to AES of $41,504.61, and on 20 September 2021, made a further payment of $5,000. This left an amount of $35,000 owing in respect of the second invoice. In aggregate, J Build paid AES the sum of $63,379.16 (inclusive of GST) in respect of the sub-contracting works.
On 4 October 2021, AES served a purported notice under s 18(2) of the Building and Construction Industry Security of Payment Act2002 (Vic) (‘the SOP Act’) on J Build, by which it indicated its intention to submit a payment claim purportedly constituted by the second invoice for adjudication under s 18(2) of the SOP Act (insofar as that invoice remained outstanding). On 5 October 2021, J Build responded to this notice by sending AES a payment schedule informing AES that it proposed paying nil in respect of the second invoice on the basis that works had not been completed. In the event, no adjudication application was ultimately pursued by AES.
Following non-payment of the balance of the second invoice, AES instructed its solicitors to issue and serve the statutory demand on 14 October 2021. The demand claims the sum of $35,000 as ‘monies due and owing pursuant to [AES’] tax invoice no 6394 dated 31 May 2021,’ which refers to the second invoice. The statutory demand does not appear to annex a copy of the second invoice itself.
As already noted, the plaintiff commenced this application to set aside the demand on 3 November 2021. It relies on the following material in support of its application:
(a) the affidavit and exhibits in support of Mr Jamiel Wadih Daou affirmed 3 November 2021 (‘the first Daou affidavit’);
(b) the affidavit and exhibits of service of Marvin Ward affirmed 15 November 2021;
(c) the affidavit and exhibits of Mr Daou affirmed 9 December 2021 (‘the second Daou affidavit’);
(d) the affidavit of Mr Daou affirmed 8 February 2022 (‘the third Daou affidavit’);
(e) the affidavit and exhibits of Mr Daou affirmed 16 February 2022; and
(f) the plaintiff’s written submissions filed 14 February 2022.
The defendant, in turn, relies on: the affidavit of Brett Edward Wright affirmed 27 January 2022, together with its exhibits (‘the Wright affidavit’); written submissions dated 15 February 2022; and supplementary written submissions dated 17 February 2022.
In its various written submissions, the defendant contends that the second invoice referred to in the statutory demand constitutes a ‘payment claim’ within the meaning of s 14 of the SOP Act which was not effectively challenged by way of a ‘payment schedule’ served within time and is therefore due and payable by force of statute and beyond challenge. The defendant further contends that as a consequence, J Build is precluded from contending the existence of any genuine dispute about the subject of the statutory demand in this proceeding.
The issues for determination can therefore be expressed as follows:
(a) is there a genuine dispute under s 459H(1)(a) of the Act that the defendant’s invoice the subject of the demand (ie the second invoice) is a ‘payment claim’ which satisfies the requirements of s 14 of the SOP Act? In particular, is there a genuine dispute whether:
(i) the invoice was served outside of the required time for the defendant to serve a valid payment claim in respect of a progress payment in accordance with ss 9 and 10(4) of the SOP Act?; and/or
(ii) the ‘claimed amount’ in the invoice impermissibly includes ‘an amount that relates to a variation of the construction contract that is not a claimable variation’ and is therefore an ‘excluded amount’ as defined in s 10B of the SOP Act?;
(b) depending on the answers to the above, is the plaintiff precluded from contending the existence of any other genuine dispute about the statutory demand?;
(c) depending on the answers to the above, is there a genuine dispute under s 459H(1)(a) of the Act about the existence of the debt the subject of the demand having regard to the contractual terms agreed between the parties?;
(d) does the plaintiff have partially offsetting claims against the defendant pursuant to s 459H(1)(b) of the Act in respect of:
(i) recovery of overpayment to the defendant according to the contractual terms as agreed between the parties?;[1] and/or
[1]The plaintiff accepts that this claim is intertwined with the genuine dispute issues contained in paragraphs (b) and (c) above.
(ii) costs incurred by J Build relating to AES’ failure to remove rubbish and excess materials left at the property?; and
(e) should the statutory demand be set aside for ‘some other reason’ under s 459J(1)(b) of the Act?
Statutory provisions and legal provisions
Section 459E of the Act relevantly provides:
…
(2) The demand:
(a)if it relates to a single debt--must specify the debt and its amount; and
…
(e) must be in the prescribed form (if any);
…
(3)Unless the debt, or each of the debts, is a judgment debt, the demand must be accompanied by an affidavit that:
(a)verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and
(b)complies with the rules.
The prescribed form for a statutory demand is Form 509H, which is found in Schedule 2 of the Corporations Regulations 2001 (Cth).
Rule 5.2 of the Supreme Court (Corporations) Rules 2013 (Vic) (‘the Corporations Rules’) relevantly states that the requisite affidavit accompanying a statutory demand must ‘be in accordance with Form 7 and state the matters mentioned in that Form’. Paragraph 1 of Form 7 requires the deponent of the affidavit to specify the amount of the debt or debts owed by the debtor company to the creditor. It also requires the deponent to:
‘state [the] nature of [the] debt, or debts, ensuring that what is stated corresponds with the description of the debt, or debts, to be given in the proposed statutory demand, with which … [the] affidavit is to be served on the debtor company’.
Section 459G of the Act states:
(1)A company may apply to the Court for an order setting aside a statutory demand served on the company.
(2)An application may only be made within the statutory period[2] after the demand is so served.
(3)An application is made in accordance with this section only if, within that period:
(a)an affidavit supporting the application is filed with the Court; and
(b)a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
[2]The term ‘statutory period’ is defined in s 9 of the Act as: ‘(a) if a period longer than 21 days is prescribed--the prescribed period; or (b) otherwise--21 days’.
Section 459H(1) of the Act provides:
(1)This section applies where, on an application under section 459G, the Court is satisfied of either or both of the following:
(a)that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates;
(b)that the company has an offsetting claim.[3]
[3]An ‘offsetting claim’ is defined in s 459H(5) to be 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)’.
Where a company applies to set aside a statutory demand under s 459H of the Act, the Court is required to calculate the ‘substantiated amount’ of the demand in accordance with the formula prescribed in s 459H(2). Section 459H(3) provides that where the substantiated amount is less than the statutory minimum, the Court must set the demand aside.
The following well-established statements of principle define what constitutes a genuine dispute for the purpose of s 459H(1) of the Act:
(a) for a dispute to be ‘genuine’ it must be ‘bona fide and truly exist in fact’;[4]
[4]Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452, 464 (Northrop, Merkel and Goldberg JJ) (‘Spencer Constructions’), cited with approval by the Victorian Supreme Court of Appeal in Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 330 [49] (Kyrou, Ferguson and Kaye JJA) (‘Malec’).
(b) ‘the grounds for alleging the existence of a dispute … [must be] real and not spurious, hypothetical, illusory or misconceived’;[5]
[5]Spencer Constructions 464, cited with approval by the Victorian Supreme Court of Appeal in Malec [49].
(c) the dispute must have a ‘sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion, and sufficient factual particularity to exclude the merely fanciful or futile … Something “between mere assertion and the proof that would be necessary in a court of law” may suffice’;[6]
[6]TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67, 79 [71] (Dodds‑Streeton JA) (‘TR Administration’); Malec [49].
(d) a genuine dispute may involve a ‘plausible contention requiring investigation’ and raising the same sort of considerations as the ‘serious question to be tried’ test that applies in the case of interlocutory injunctions;[7]
[7]Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601, 608 [31] (Beazley P, Meagher and Gleeson JJA) (‘Britten-Norman’); Malec [48].
(e) the Court should not uncritically accept statements about an alleged genuine dispute which are ‘equivocal, lacking in precision, inconsistent with undisputed contemporary documents … or inherently improbable …’;[8]
(f) if the dispute appears to be something ‘merely created or constructed in response to the pressure represented by the service of the statutory demand’, then it is not advanced in good faith and will not be regarded as genuine;[9] and
(g) whilst the underlying nature of the dispute about the existence of a debt ‘must be exposed’, the Court will not deal with the merits and nothing of substance will be decided.[10]
[8]Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785, 787 (McLelland CJ in Eq), cited with approval by the Victorian Supreme Court of Appeal in TR Administration 78 [64] and Malec [50].
[9]Creata (Aust) Pty Ltd v Faull (2017) 125 ACSR 212, 224 [47] (Barrett AJA, with Gleeson and White JJA agreeing) (‘Creata’). See also JJMMR Pty Ltd v LG International Corp [2003] QCA 519 [18] (McPherson JA) where the same point was made in respect of an offsetting claim.
[10]Quadrant Constructions Pty Ltd v HSBC Bank Australia Ltd [2004] FCA 111 [4] (Finkelstein J). See also Malec [48].
The principles described above apply equally in the case of an application to set aside a statutory demand on the basis of an offsetting claim.[11] In the case of an offsetting claim, the following additional principles also apply:
(a) a genuine offsetting claim ‘means a claim on a cause of action advanced in good faith, for an amount claimed in good faith’.[12] In this context, ‘good faith’ means arguable on the basis of facts asserted with sufficient particularity to enable the Court to determine that the claim is not fanciful;[13] and
(b) there must be some evidence to indicate the nature of the offsetting claim and the way in which it is calculated, including any loss which is said to arise;[14]
[11]See the discussion of the relevant principles by the Victorian Court of Appeal in the context of both genuine disputes and offsetting claims in TR Administration 79 [71] and Malec [47]‑[50]. See also Britten‑Norman 609 [36], 615 [70] where the New South Wales Court of Appeal discussed the evidentiary threshold in establishing either a genuine dispute or offsetting claim under s 459H.
[12]Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 [18] (Palmer J) (‘Macleay Nominees’). See also Edge Technology Pty Ltd v Lite-On Technology Corp (2000) 34 ACSR 301, 306‑7 [29] (Santow J).
[13]Macleay Nominees [18].
[14]Ibid; Broke Hills Estate Pty Ltd v Oakvale Wines Pty Ltd [2005] NSWSC 638 [30]-[31] (Gzell J); Mayaman Developments Pty Ltd v TQ Constructions Pty Ltd [2009] QSC 144 [22]-[23] (Daubney J).
However, it is not necessary to particularise the offsetting claim to the last ‘dollar and cent’.[15] The evidence need only be sufficient for the Court to make an estimate of the amount of the offsetting claim,[16] which must be capable of being quantified in monetary terms.[17] A plaintiff’s affidavit in support of an application under s 459G of the Act must contain sufficient facts to support its case.[18] It must also identify expressly, or by necessary or reasonable inference, the grounds on which the statutory demand should be set aside.[19] Whilst the hurdle for establishing a genuine dispute or genuine offsetting claim is a relatively low one, an applicant must nevertheless satisfy the Court that such a dispute or offsetting claim exists on the balance of probabilities.[20]
[15]Elm Financial Services Pty Ltd v MacDougal [2004] NSWSC 560 [19] (Barrett J).
[16]Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91 [90], (Pullin JA, with Newnes and Murphy JJA agreeing).
[17]Chase Manhattan Bank Australia Ltd v Oscty Pty Ltd (1995) 17 ACSR 128, 135 [30] (Lindgren J); Ozone Manufacturing Pty Ltd v Deputy Commissioner of Taxation (2006) 94 SASR 269, 284-5 [45] (Debelle J, with Besanko and Layton JJ agreeing); No 96 Factory Bargains Pty Ltd v Kershel Pty Ltd [2003] NSWSC 146 [27] (Barrett J).
[18]Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund (1996) 70 FCR 452, 459 (Sundberg J).
[19]Sceam Construction Pty Ltdv Clyne (2021) 64 VR 404 [38], [62] (Ferguson CJ, Sifris and Walker JJA) (‘Sceam’).
[20]See Farid Assaf, Assaf’s Winding Up in Insolvency (3rd ed, Lexis Nexis, 2021) (‘Assaf’s Winding Up in Insolvency’) [6.25] citing Re Speedy Loans Pty Ltd [2014] VSC 273 [17] (Gardiner AsJ); Moyall Investments Services Pty Ltd v White (1993) 12 ACSR 320, 324 (Ryan J); Southern Canola Producers Pty Ltd v Painter Griffith & Associates (1997) 15 ACLC 956 (Santow J) and Sterling Estates (SA) Pty Ltd v Bradley (2000) 34 ACSR 177 [16] (Hamilton J).
It is important to note that a proceeding brought under s 459G of the Act is not ordinarily an occasion for the Court to construe a contract where its meaning is in dispute.[21] In Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd,[22] White JA explained the principle in this way:
It is usually inappropriate on an application to set aside a statutory demand that the court attempt to decide competing contentions as to contractual interpretation, partly because to do so might embarrass a judge before whom that issue arises and fundamentally because if the disputed question of contractual interpretation is arguable there will be a genuine dispute as to the existence of the debt, albeit one that does not depend upon a disputed matter of fact. But where the legal argument propounded in support of a particular construction is “patently feeble” (Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 787 (McLelland CJ in Eq), or where it is “as plain as a pikestaff” that it has no basis (Spacorp Australia Pty Ltd v Myer Stores Ltd (2001) 19 ACLC 1270; [2001] VSCA 89 at [4]) then there will be no genuine dispute (Creata (Aust) Pty Ltd v Faull (2017) 125 ACSR 212; [2017] NSWCA 300; 125 ACSR 212 at [26]-[29]).[23]
[21]Infratel Networks Pty Ltd v Gundry’s Telco & Rigging Pty Ltd (2012) 92 ACSR 27, 34 [46] (Young AJA); Broadspectrum (Australia) Pty Ltd v Centauri Business Services Pty Ltd [2016] NSWSC 1045 [22] (Barrett AJA); Re Litigation Insurance Pty Ltd [2017] NSWSC 334 [31] (Gleeson JA); Creata 219 [29] (Barrett AJA; Gleeson and White JJA agreeing).
[22](2019) 99 NSWLR 397 (‘Grandview’).
[23]Ibid 417 [90]. See also Re Aurora Funds Management Ltd [2021] VSC 690 [44] (Gardiner AsJ).
Section 459J of the Act is in the following terms:
(1)On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:
(a)because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or
(b)there is some other reason why the demand should be set aside.
(2)Except as provided in subsection (1), the Court must not set aside a statutory demand merely because of a defect.
In Re MHC Pathology Pty Ltd,[24] I explained the operation of s 459J of the Act as follows:[25]
[24](2020) 356 FLR 222 (‘Re MHC Pathology’).
[25]Ibid 243, 245; [64]–[66], [75].
[64]The case law makes clear that sub-paragraphs (a) and (b) of s 459J(1) are mutually exclusive.[26] The only source of power to set aside a demand on the basis of a defect is found in s 459J(1)(a) and not s 459J(1)(b).[27] In other words, the provisions do not overlap.
[65]The term ‘defect’ as it appears in s 459J is given a wide and inclusive definition by s 9 of the legislation and may encompass an irregularity, a misstatement of an amount or total, a misdescription of a debt or other matter, or a misdescription of a person or entity. But the expression ‘defect’ in s 459J does not imply any degree of proportionality or distinguish between defects which are major or minor in nature.[28] Even significant defects in a demand are to be determined under s 459J(1)(a).[29]
[66]The question of whether substantial injustice will arise unless the demand is set aside depends on the nature of the particular defect identified and the surrounding circumstances.[30] …
…
[75]… [T]he authorities are clear that the ‘other reason’ required by s 459J(1)(b) cannot be a defect in the demand.[31] Something else is required. In Arcade Badge Embroidery Co Pty Ltd v DCT,[32] the Court of Appeal of the Australian Capital Territory found that the other reasons envisaged by s 459J(1)(b) include ‘conduct that may be described as unconscionable, an abuse of process, or which gives rise to substantial injustice’.[33] Whilst the discretion conferred by the provision is broad, a judge should not set aside a statutory demand under s 459J(1)(b) simply because she or he subjectively considers it fair to do so.[34] The Court’s power under the sub-section exists to maintain the integrity of the statutory demand procedure in Part 5.4 of the [Act] and to counter its subversion.[35]
[26]See Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446.
[27]Spencer Constructions 458–9; Daewoo Australia Pty Ltd v Suncorp-Metway Ltd (2000) 33 ACSR 481, 493–4 [44]–[45] (Austin J) (‘Daewoo v Suncorp-Metway’).
[28]Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd (2002) 20 ACLC 726 (‘Main Camp’). See also Farid Assaf, Statutory Demands and Winding Up in Insolvency (Lexis Nexis, 2nd ed, 2012) [7.12].
[29]Spencer Constructions 459.
[30]Condor Asset Management Ltd v Excelsior Eastern Ltd (2005) 56 ACSR 223, 231 [25] (Barrett J); Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 848 [15] (Barrett J).
[31]Spencer Constructions 458–9; Daewoo v Suncorp-Metway 493‑4 [44]‑[45].
[32](2005) 157 ACTR 22.
[33]Ibid 26 [27] (Crispin P, Gray and Marshall JJ). See also Hoare Bros Pty Ltd v Deputy Commissioner of Taxation (1996) 62 FCR 302; Neutral Bay Pty Ltd v Deputy Commissioner of Taxation (2007) 25 ACLC 1341.
[34]Meehan v Glazier Holdings Pty Ltd (2005) 53 ACSR 229, 240 [60]–[61] (Santow and Tobias JJ, and Young CJ in Eq).
[35]Rinfort Pty Ltd v Arianna Holdings Pty Ltd (2016) 111 ACSR 607, 633 [84] (Black J).
Application of the SOP Act
It is convenient to first deal with the application of the SOP Act to the present proceeding.
In broad terms, the SOP Act provides a relatively expedient process for the recovery of valid ‘progress payments’ by persons who carry out work or supply goods and services in the construction industry.[36] It does so by granting contractors a statutory entitlement to recover ‘progress payments’ for work done or goods or services supplied through an established procedure.[37] The procedure involves the making of a progress claim by the contractor claiming payment (‘the claimant’), the provision of a payment schedule by the person receiving the payment claim (‘the respondent’) which must identify any aspect of the claimed amount which is disputed, the referral of any disputed claim to an adjudicator for determination, the payment of the amount of the progress payment as adjudicated and the recovery of the progress payment in the event of a failure to pay.[38]
[36]See ss 1, 3 of the SOP Act.
[37]Ibid s 3.
[38]Ibid.
Section 15(4) of the SOP Act provides that if the respondent does not serve a payment schedule in response, they become statutorily liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates. Sections 16 and 17 deal respectively with the consequences of not paying a claimant where no payment schedule is served by a respondent in response to a payment claim, and of not paying the admitted amount in a payment schedule where one is provided. Where no payment schedule is served by the respondent, the claimant may elect between recovering the unpaid portion of the claimed amount as a debt due to the claimant in any court of competent jurisdiction or making an adjudication application in relation to the payment claim.[39] According to s 16(4)(a) of the SOP Act where the former course is taken, a judgment may not be given unless the court is satisfied, firstly, of the existence of the circumstances referred to in s 16(1)[40] and, secondly, that the claimed amount does not include any excluded amount. By force of s 16(4)(b) of the SOP Act, in any such recovery proceeding the respondent is not entitled to bring any cross-claim against the claimant or to raise any defence in relation to matters arising under the construction contract.
[39]Ibid s 16(2). See also s 18(1)(b) of the SOP Act as to the process for making an adjudication application.
[40]The circumstances being that the respondent has become liable to pay the claimed amount to the claimant under s 15(4) of the SOP Act as a consequence of having failed to provide a payment schedule within time and that the respondent has failed to pay the whole or any part of the claimed amount on or before the due date for the progress payment to which the payment claim relate.
As previously noted, the defendant contends that the second invoice referred to in the statutory demand is a valid ‘payment claim’ under the SOP Act, with the consequence that the debt the subject of the statutory demand was made conclusive by statute and cannot now be the subject of a genuine dispute.[41] The plaintiff accepted, as a matter of principle, that there could not be a genuine dispute in respect of a statutory debt under s 15(4) of the SOP Act which arises from the service of a valid payment claim and the failure to respond with a payment schedule within time.[42] However, both parties accepted that the question of whether the plaintiff is in fact precluded from contending the existence of a genuine dispute about the debt claimed in the statutory demand depends upon whether certain conditions of the legislation have been complied with by the defendant. The parties also proceeded on the basis that a valid payment claim under the SOP Act would not prevent a plaintiff from raising an offsetting claim under s 459H(1)(b) of the Act.[43]
[41]In support of that submission, the defendant made reference to ss 15(4), 16(2)(a)(i) and 16(4)(b) of the SOP Act and citing Re Douglas Aerospace Pty Ltd [2015] NSWSC 167, [68]-[77] (‘Douglas Aerospace’); Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91, [54]-[57]; Grandview [5], [47], [84]); and Assaf’s Winding Up in Insolvency [6.38]-[6.40]. See s 16(2)(a)(i) and s 16(4)(b)(ii) of the SOP Act.
[42]Referring to Douglas Aerospace.
[43]The authorities suggest that offsetting claims can be raised under s 459H(1)(b) of the Act in respect of a statutory demand based on either a judgment obtained or an accepted or unchallenged claim under the SOP Act because of the particular definition of an ‘offsetting claim’ in s 459H(5): see Grandview [6]; 133 Walsh Street Pty Ltd v BMF [2020] VSC 650 [40] (Gardiner AsJ) (‘133 Walsh Street’).
Whether the second invoice served out of time and not a valid progress claim
Pursuant to s 9(1) of the SOP Act, a person is entitled to a ‘progress payment’ for work undertaken or the supply of goods or services under a construction contract on and from each ‘reference date’.
Relevantly, s 9(2) of the SOP Act provides the definition of ‘reference date’:
(2)In this section, reference date, in relation to a construction contract, means—
(a)a date determined by or in accordance with the terms of the contract as—
(i)a date on which a claim for a progress payment may be made; or
(ii)a date by reference to which the amount of a progress payment is to be calculated—
in relation to a specific item of construction work carried out or to be carried out or a specific item of related goods and services supplied or to be supplied under the contract; or
(b)subject to paragraphs (c) and (d), if the contract makes no express provision with respect to the matter, the date occurring 20 business days after the previous reference date or (in the case of the first reference date) the date occurring 20 business days after—
(i)construction work was first carried out under the contract; or
(ii)related goods and services were first supplied under the contract;
…
Under s 14(1) of the SOP Act, a person who is, or who claims to be, entitled to a ‘progress payment’ may serve a ‘payment claim’ on the person who, under the relevant construction contract, is or may be liable to make the payment.
A valid payment claim must be served within the requisite time period specified under the SOP Act. Section 14(4) states:
A payment claim in respect of a progress payment (other than a payment claim in respect of a progress payment that is a final, single or one-off payment) may be served only within—
(a)the period determined by or in accordance with the terms of the construction contract in respect of the carrying out of the item of construction work or the supply of the item of related goods and services to which the claim relates; or
(b)the period of 3 months after the reference date referred to in section 9(2) that relates to that progress payment—
whichever is the later.
In this case, terms and conditions of sale were attached to each quotation agreed between the parties (‘the terms and conditions’). One of two clauses numbered ‘3’ found in the terms and conditions relevantly states that progress claims under the agreement shall be submitted at ‘predetermined intervals’, such claims to be due and payable within 14 days from the date of the claim or objected to in writing within seven days.
There is also a table located below cl 4.3 of the terms and conditions which makes provision for payment to AES by reference to certain stages of the work and percentages as follows:
Commercial Domestic 1.20% on acceptance of tender A) 50% Deposit prior to commencing on site 2.40% on completion of rough in (unless monthly progress claim made)
B) 50% on completion of works
3.40% on practical completion (unless monthly progress claim made)
There is further discussion about the application of this table later in these reasons. For present purposes, it is enough to note that the plaintiff contends for a construction of the underlying agreement between the parties whereby the ‘domestic’ column of the table applies with the result that 50% of the total contract price was payable to the defendant prior to commencing work and the remaining 50% was payable on completion of the works.
The plaintiff’s evidence is that the variation works under the third quotation were not completed at the time of service of the demand or at the time of commencement of this proceeding. In particular, Mr Daou deposes that AES did not install the necessary grilles, commission the relevant units, test or commission the ventilation system or perform other outstanding work the subject of the variations. The plaintiff has also produced photographs to substantiate the assertion that the variations contemplated by the third quotation were not completed. These incomplete works are also itemised in J Build’s payment schedule dated 5 October 2021 which suggests damaged ductwork was not replaced, outdoor units were not available to be installed and the rough in for all air conditioning units and exhaust air ductwork was incomplete. None of this evidence is directly contradicted by the defendant. To some extent, it is corroborated by the narrative contained in the second invoice, which relevantly states ‘[o]nce plaster is complete we will install grills [sic] and commission’.[44]
[44]Exhibit “BEW-1” to the Wright Affidavit, p 64.
If the plaintiff’s interpretation of the underlying contract is correct (so that 50% of the contract price was payable prior to work starting and the balance upon completion), it is arguable that the defendant rendered the second invoice seeking payment for work prior to the relevant reference date arising (ie the date when the work was complete).
As explained by his Honour Judge Woodward in Diako Builders Pty Ltd v Compfam Pty Ltd,[45] it is a defence to a payment claim that the payment claim was made when no valid reference date existed, including where it is served before an applicable reference date[46] or where it relies on a reference date that has already been used up by an earlier payment claim.[47] His Honour held that the payment claim under consideration lacked a valid reference date. In the earlier case of MKA Bowen v Carelli Constructions,[48] Digby J held that ss 9(1), 9(2) and 14(1) of the SOP Act authorised the service of a compliant progress claim only on and from each relevant reference date but not before the applicable reference date.[49] That point was accepted by the defendant in 133 Walsh Street Pty Ltd v BMF Pty Ltd, with the result that the defendant conceded there was a genuine dispute in relation to two prematurely served payment claims.[50]
[45][2021] VCC 784 [25] (‘Diako Builders v Compfam’).
[46]Citing Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340 [44] (‘Southern Han’).
[47]Citing Southern Han [61]-[62]; Vanguard Development Group Pty Ltd v Promax Building Developments Pty Ltd [2018] VSC 386 [121] (Kennedy J).
[48][2019] VSC 436.
[49]Ibid [37].
[50]Ibid [37].
By contrast, Mr Wright has given evidence for the defendant that the parties verbally agreed the terms and conditions included in the various quotations would not apply and that instead:
… AES would issue J Build with progress payment claims as the work the subject of the quotation progressed, not more often than monthly, at the end of the relevant month, based on the proportion of the total scope of work completed to the time of the claim, with each claim being due and payable within 30 days of invoice.
As more fully discussed later in these reasons, Mr Daou denies ever coming to such an agreement with Mr Wright and says he proceeded on the basis that the written terms and conditions attached to the various quotations continued to apply.
In the circumstances, I am satisfied there is a genuine dispute that the second invoice the subject of the statutory demand was served before the reference date which gave rise to the defendant’s entitlement to a progress payment and is therefore not a valid progress claim for the purpose of the SOP Act. Alternatively, there is a genuine dispute as to the identification of the applicable reference date. However, it is not the Court’s role to conclusively determine the correct reference date or the validity of the second invoice as a payment claim in this summary proceeding brought under Pt 5.4 of the Act. That issue ought to be agitated and determined in a proceeding brought in accordance with the provisions of the SOP Act. It follows that the plaintiff is not prevented from raising a genuine dispute in relation to the existence or amount of the debt referred to in the statutory demand.
Whether second invoice includes an excluded amount
For completeness, I will now briefly explain why the conclusion that the plaintiff is not prevented from raising a genuine dispute in relation to the existence or amount of the debt referred to in the statutory demand may be independently reached because of a further issue concerning the second invoice.
In ascertaining the ‘amount’ of a progress claim, certain ‘claimable variations’, which may arise from variations to the construction contract, may be taken into account.[51] Claimable variations are defined exhaustively within s 10A of the SOP Act, as falling into two classes of variations, which are discussed below.
[51]SOP Act, s 10(2).
However, an ‘excluded amount’ must not be taken into account in calculating the amount of any progress payment,[52] and a payment claim must not include an excluded amount.[53] An excluded amount includes any amount which relates to a variation of the construction contract that is not a claimable variation.[54]
[52]Ibid 10(3).
[53]Ibid ss 14(3)(b), 16(4)(a)(ii).
[54]Ibid s 10B(2)(a).
As McLeish and Niall JJA observed in Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd,[55] one of the evident policies of the SOP Act is to prevent recovery of excluded amounts[56] and where there is a dispute about the extent to which excluded amounts are being claimed, that is a matter for adjudication.[57] The majority further confirmed that where a claimant seeks recovery of a payment claim in court, the court is not to give judgment in favour of the claimant unless it is satisfied that the claimed amount does not include any excluded amount.[58] To do otherwise would take the court beyond its defined role of enforcing recovery of a statutory liability into the area of adjudicating potentially factually complex disputes.[59] However, a payment claim containing an excluded amount would still be valid and potentially give rise to a statutory liability under s 15(4) if a payment schedule is not provided in time.[60] Further, a claimant may still seek adjudication as a means of recovering the claimed amount, less any excluded amounts identified by the adjudicator.[61]
[55][2021] VSCA 44 (‘Yuanda v Façade Designs’).
[56]Ibid [20], [25] (McLeish and Niall JJA).
[57]Ibid [21].
[58]Ibid, referring to SOP Act s 16(4)(a). See also Diako Builders v Compfam [65] (Judge Woodward).
[59]Ibid [23].
[60]Ibid [26].
[61]Ibid.
I have already set out the evidence relied upon by the plaintiff to establish that the variation works under the third quotation and claimed in the second invoice have not been completed. It is therefore uncontentious that the invoiced amount is unlikely to fall within the first class of claimable variation in s 10A(2)(a) of the legislation which contemplates work which the parties agree has been carried out or goods and services which the parties agree have been supplied.
However, it is a matter of contention between the parties as to whether the variation may be considered to be a second class of variation as defined pursuant to s 10A(3)(a) of the SOP Act. Relevantly, that sub-section states:[62]
[62]Section 10A(3)(A) of the SOP Act contains a list of elements, all of which need to be satisfied in order for a variation to be a ‘second class of variation’. No other element of that sub-section was disputed by the parties during the course of the hearing.
(3)The second class of variation is a variation where—
(a)the work has been carried out or the goods and services have been supplied under the construction contract; and
…
[emphasis added]
Because there is a plausible contention that some or all of the variation work in the second invoice was not carried out as a matter of fact, it is unclear whether that work falls within the second class of claimable variation contemplated by s 10A(3)(a) of the SOP Act or represents an excluded amount.
I am therefore satisfied there is a genuine dispute about whether the second invoice the subject of the demand impermissibly claims excluded amounts. Whilst the inclusion of excluded amounts in the second invoice would not render it invalid as a payment claim,[63] it cannot be relied upon to obtain judgment from a court for enforcement purposes. Instead, any dispute regarding the excluded amount would need to be the subject of adjudication. In this instance, the adjudication path was not pursued by AES. The fact that a respondent has the right to challenge aspects of a payment claim in an adjudication process tends against the conclusion that the SOP Act would prevent a respondent from also raising a genuine dispute following service of a statutory demand in respect of the same claimed amount. I am therefore satisfied there is no conclusive statutory bar preventing the plaintiff from raising grounds of genuine dispute in relation to the debt the subject of the statutory demand.
[63]Yuanda v Façade Designs [26].
Other matters concerning the applicability of the SOP Act
In its supplementary written submissions, the defendant raises a number of further matters concerning the characterisation of the second invoice as a payment claim. Firstly, it is said that the terms and conditions of sale of the second quotation expressly state that all invoices are issued pursuant to the SOP Act[64] and that the first invoice and second invoice state on their face that they are payment claims for the purposes of the SOP Act. Secondly, it is argued that by posting a payment schedule on 5 October 2021 (albeit out of time),[65] following service of the defendant’s notice under s 18(2) of the SOP Act to submit the second invoice as a payment claim to adjudication, the plaintiff implicitly acknowledged the validity of the second invoice as a payment claim.
[64]In actual fact, cl 4.3 of the terms and conditions on the second quotation contemplates all invoices being issued under the ‘Security of Payment Act 2012 [sic]’.
[65]In accordance with the operation of s 15(4) of the SOP Act, J Build had the earlier of seven days under cl 3 of the terms and conditions of the relevant invoices or 10 business days to serve a payment schedule contesting any aspect of any payment claim served by AES.
Whilst it is arguable that these matters might suggest the second invoice was intended by the parties to be treated as a payment claim, if the second invoice is technically invalid as a payment claim, it would not matter how the parties intended it to operate. Further, the fact that J Build likely served its payment schedule well out of time appears to be irrelevant to the question of whether any payment claim was itself valid.
Conclusion on application of the SOP Act
Having regard to the above matters, I do not consider that the SOP Act precludes J Build from raising any other genuine dispute concerning the debt the subject of the statutory demand. I turn now to the remaining issues raised in relation to the demand.
Whether genuine dispute about debt claimed in statutory demand
The plaintiff submits there is a genuine dispute as to the existence of the debt claimed in the statutory demand having regard to the contractual terms in place between the parties.
Relevant evidence
As previously noted, on 5 March 2020, the defendant provided the plaintiff with the first quotation.
Annexed to the first quotation and each of the subsequent quotations was a page styled ‘Conditions’. Paragraph 2 of that document states:
Customers without a pre approved credit account will be required to pay 50% deposit and remaining 50% on completion of project.
Further annexed to each of the quotations were the terms and conditions. The terms and conditions contain an introductory paragraph stating as follows:
These terms and conditions, and any amendments published from time to time on the “companies” website at (“Terms”) apply whenever the “Company” supplies any products or service (“Goods” and or “Services”) to any person (the “customer”), unless expressly agreed otherwise by the “Company” in writing. By requesting, ordering, purchasing or receiving delivery of any goods and or service the customer is deemed to have accepted these terms and to have agreed that they apply to the exclusion of all others.
Relevantly, cl 4 of the terms and conditions provides for certain payment terms, including that:
4.2If goods and or services are sold to the customer on credit then all invoiced amounts are payable within 30 days of the date of the invoice, unless otherwise agreed by the “Company” in writing.
4.3The “customer” hereby agrees to indemnify and / or reimburse the “Company” in relation to any costs incurred by the “Company” in attempting to recover amounts owed by the “customer” to the “Company” pursuant to these terms and conditions of sale.
Beneath cl 4.3 of the terms and conditions is the table which makes provision for payment to AES by reference to certain stages of work and applicable percentages in accordance with the ‘commercial’ and ‘domestic’ classifications. The table is extracted earlier in these reasons.
In the first Daou affidavit, Mr Daou disputes the plaintiff owes the defendant the $35,000 claimed in the statutory demand because:
(a) the defendant has not completed all of the works required in accordance with the agreement between the parties and is therefore only entitled to 50% of the contract price, namely $54,523.65; and
(b) the plaintiff has already paid the defendant more than 50% of the contract price.
In his affidavit, Mr Wright deposes that following initial contact by Mr Daou on 24 February 2020 via text message, he and Mr Daou had a telephone conversation where the two discussed details of the relevant project, including timing and payment. He says that during the conversation, Mr Daou indicated that J Build wished to operate on ‘30-day credit terms’. Mr Wright said that if AES was to offer such terms instead of its usual commercial terms, J Build would first need to pass a credit check (which it apparently did).
Mr Wright further deposes that, at around the time that AES sent the first quotation to J Build via email, he had a further telephone call with Mr Daou. He states that during this conversation, and consistent with an alleged prior request by Mr Daou, the parties agreed that the ‘commercial’ payment terms (including the requirement for payment of 20% of the contract price upfront) set out in the first quotation would not apply. Instead, AES would issue J Build with ‘progress payment claims’ as the sub‑contracting works progressed based on the proportion of the total work completed at the time of each claim, such claims to be issued by AES monthly and, at the end of any relevant month, payable within 30 days of the invoice (‘the 30 day EOM term’). Mr Wright states that such payment terms are common in the construction industry.
Mr Wright also deposes that the parties ‘understood’ the ‘commercial’ payment terms contained in the terms and conditions would not operate in respect of the second quotation as they had previously agreed to the 30 day EOM term at the time of the first quotation. He says that Mr Daou emailed him on 28 October 2020 to confirm his approval of the second quotation (as amended by the revised second quotation), thereby ‘incorporating the payment terms … earlier discussed’. Similarly, as regards the third quotation, Mr Wright says he had already discussed with Mr Daou that the commercial payment terms did not apply and would instead remain as agreed. Whilst Mr Wright does not identify precisely when the contract between the parties was entered into, the defendant’s written submissions suggest the contract was formed after approval by Mr Daou of the second quotation (as amended by the revised second quotation) on 28 October 2020.
Mr Wright explains that the terms ‘commercial’ and ‘domestic’ in the payment table located at cl 4 of the terms and conditions ‘relate to the nature of the party entering into the contract with AES, and not the type of works to be undertaken by AES’. He says that because J Build is a building company and commercial enterprise and the underlying head contract is a commercial contract, the ‘commercial’ payment terms in the table would have ordinarily applied had the parties not reached an oral agreement about the 30 day EOM term.
Conversely, in his later affidavits Mr Daou says he understood the terms ‘commercial’ and ‘domestic’ to relate to the nature of the works being undertaken. He considered the domestic category of the table applied because AES was completing works associated with the construction of three dwellings at the property which were domestic in nature, as opposed to commercial buildings. Accordingly, he understood that 50% of the contract price was payable to AES prior to work commencing at the site with the balance payable upon completion of the works. Mr Daou deposes that he signed the third quotation, accompanied by the terms and conditions, on this basis and understood the written payment terms contained in the quotations as continuing to apply. He characterises the agreement between the parties as coming into existence upon the acceptance of the third quotation. Critically, Mr Daou denies the parties ever agreed, verbally or in writing, to the 30 day EOM term alleged by Mr Wright.
Consideration
Having regard to the circumstances of the case, including the terms and conditions contained within the various quotations provided by the defendant to the plaintiff, I am satisfied there is a genuine dispute as to the existence of the debt the subject of the demand. The genuine dispute manifests in a number of ways.
First, there is a genuine dispute as to whether the terms comprising the contractual relationship between the parties were located solely within the terms and conditions and the other document titled ‘Conditions’ which accompanied the relevant quotations provided by AES, or whether the terms were varied or superseded by oral agreement between the parties. Although Mr Wright deposes to a conversation between himself and Mr Daou around the time of the first quotation purportedly varying the written terms and conditions, it is noteworthy that:
(a) in relation to the second quotation, Mr Wright does not say it was expressly agreed between the parties that the 30 day EOM term would apply, but rather suggests that it was ‘understood’ by the parties to be the case given the earlier verbal agreement about the incorporation of the term. He does not explain how that understanding was arrived at. Similarly, in relation to the third quotation, Mr Wright does not give evidence of any further discussion between the parties about whether the 30 day EOM term applied, but rather he appears to have simply assumed that it had already been agreed;
(b) although the 30 day EOM term was allegedly verbally agreed to between the parties around the time the first quotation was provided by AES on 5 March 2020, neither the second quotation nor the third quotation make reference to this arrangement. Whilst the second invoice did require payment of the amount claimed within 30 days, the first invoice required payment within 14 days;
(c) none of the contemporaneous correspondence passing between the parties and accompanying the relevant quotations and invoices refers to the 30 day EOM term or to any conversation between Mr Wright and Mr Daou about that matter;
(d) whilst the terms and conditions annexed to each of the relevant quotations contain an introductory paragraph stipulating that the terms and conditions apply unless expressly agreed by AES in writing, AES has not adduced any evidence that the alleged variation concerning the 30 day EOM term was reduced to writing; and
(e) J Build has put forward sworn testimony denying the conversation alleged by Mr Wright about the 30 day EOM term and further denying that Mr Daou agreed, at any stage, to payment terms other than those stipulated in the various quotations.
Whether an oral agreement varied the written terms of the agreement in place between the parties is a triable issue. It will ultimately turn on the evidence of witnesses under cross-examination.
Secondly, assuming the written terms and conditions were not displaced or modified by oral agreement, there are unresolved questions as to the proper construction of those terms. Some aspects of the written documentation are internally inconsistent and ambiguous. For example, the table located under cl 4.3 of the terms and conditions is not preceded by any introductory words and it is not clear how the table is intended to operate in conjunction with other provisions contained in the terms and conditions or the separately titled ‘Conditions’ document also annexed to each quotation. While the table requires certain payments of different percentages of the contract price at different times depending on whether the ‘commercial’ or ‘domestic’ classification applies, it is unclear how the table interacts with one of the two clauses numbered ‘3’ found in the terms and conditions which provides for progress claims to be made at predetermined intervals agreed between the parties and payable within 14 days.
Thirdly, I accept the plaintiff’s submission there is a genuine dispute in relation to whether the ‘commercial’ or ‘domestic’ category of the table applies. Whilst Mr Wright deposes that were it not for the alleged oral agreement about the 30 day EOM term, the ‘commercial’ classification in the table would have otherwise applied, it is Mr Daou’s evidence that given the project being undertaken by J Build was domestic in nature, he understood the ‘domestic’ classification in the table to have applied. Neither of these terms are defined in the terms and conditions or the separate ‘Conditions’ document.
The defendant argues that the ‘commercial’ classification must have applied because the head contract was commercial in nature; the defendant refers to the front page of that document which states that the ‘contract is not suitable for ‘‘Domestic Building Work” under the Domestic Building Contract Acts 1995 (Vic)’ in addition to the Master Builders Association of Victoria website which suggests the contract is for use between a ‘proprietor and a contractor for commercial construction’. However, this argument assumes that the ‘commercial’ / ‘domestic’ dichotomy in the relevant table located below cl 4.3 should be construed according to the nature of the party entering into the contract with AES and not by reference to the type of work undertaken. That is by no means clear. Further, it assumes the head contract does not meet the statutory definitions of ‘domestic building contract’ or ‘major domestic building contract’ in s 3 of the Domestic Building Contract Acts 1995 (Vic), and does not contemplate whether the type of work identified in s 5 of that legislation has application. Those are not appropriate questions for determination in this proceeding.
The plaintiff’s contention that the ‘domestic’ classification applies is plausible and clearly open having regard to the ambiguous wording of the terms and conditions.
Fourthly, depending on the applicable classification of the agreement between the parties as ‘commercial’ or ‘domestic’, different payment amounts at different intervals are required. On J Build’s case, according to the ‘domestic’ classification, a 50% deposit was due prior to the commencement of the agreed works with the remaining 50% payable upon completion. Because J Build had paid AES the aggregate sum of $63,379.16 (inclusive of GST) in respect of the sub-contracting works, it had already paid more than 50% of the total contract price of $109,047.31 (inclusive of GST) in circumstances where Mr Daou has given uncontradicted evidence that those works remain incomplete.
The defendant questions the genuineness of the plaintiff’s construction of the agreement because it did not pay 50% of the contract price (or at least the difference between 50% of that price and the first invoice) to the defendant on or around 14 May 2021 (ie when the plaintiff contends the underlying agreement was reached upon acceptance of the third quotation). I am unpersuaded by this argument because:
(a) in light of the history of continual variations to the scope of work and changes to the contract price, the precise timing of payments does not seem particularly decisive;
(b) at any rate, by 22 July 2021, the plaintiff had paid $58,379.16, which was more than half of the total contract price of $109,047.31 (inclusive of GST) at the time of the third quotation.; and
(c) the terms and conditions themselves give the dispute a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion.
I accept J Build has at least an arguable contention that it has already paid AES more than that to which it was entitled and that the debt claimed in the statutory demand is therefore not owing.
Fifthly, it is not appropriate for the Court to decide between the plausible and competing constructions of the relevant agreement in an application to set aside a statutory demand under s 459G of the Act. There are no compelling reasons to resolve the disputed questions of contractual interpretation in this proceeding.
Sixthly, even if it is assumed that the 30 day EOM term forms part of the agreement between the parties, given the uncontroverted evidence of Mr Daou that the variations contemplated by the third quotation were not completed, there is also a genuine dispute as to whether the defendant is entitled to payment for work not yet completed. However, because neither party has sought to quantify the value of the incomplete work claimed in the second invoice, it is not possible for the Court to calculate the ‘substantiated amount’ for the purposes of ss 459H(2) and (5) of the Act in order to vary the statutory demand under s 459H(4). In any event, it is unnecessary to vary the demand because I am satisfied there is a genuine dispute as to whether the debt the subject of the demand is due and payable in its entirety.
In reaching the above findings, I do not accept a number of further submissions made by the defendant as to why the plaintiff’s arguments about a genuine dispute are implausible.
The defendant notes that Mr Daou did not challenge the second invoice when it was issued in the months that followed or otherwise prior to the issue of the demand. Whilst this evidence is relevant to assessing the existence of a genuine dispute that is bona fide and which truly exists in fact, it is not of itself determinative. There is no rule or principle requiring a company to communicate the dispute upon which a s 459G application is based prior to making the application.[66] Regardless, the plaintiff did in fact challenge the basis of the second invoice in its 5 October 2021 payment schedule which asserted that the defendant was not entitled to payment because work was incomplete and because the plaintiff was not obligated to pay more than 50% of the contract price until the work was finished.
[66]Yoogalu Pty Ltd v Intentia Australia Pty Ltd [2006] NSWSC 278 [28] (Barrett J).
The defendant also submits that the plaintiff’s position is inconsistent with the fact that over a period of several months between 7 July 2021 and 20 September 2021 Mr Daou sent Mr Wright a number of text messages whereby he apparently promised to pay the second invoice and in fact did make two payments towards the invoice. However, in his evidence, Mr Daou does not attribute these payments to being made with respect to the second invoice and instead characterises the payments as having been made consistently with his understanding that the plaintiff was only obliged to pay 50% of the contract until work was completed. To the extent the total payments exceeded 50% of the contract price, Mr Daou says this was done as a goodwill gesture because he appreciated many contractors were financially struggling as a result of COVID-19 lockdowns and restrictions imposed by the Victorian Government at the time. Further, whilst a number of the messages referred to by Mr Wright appear to have been personally addressed to the defendant, others appear to be more generic in nature and were apparently sent to other sub-contractors during the COVID-19 restrictions. Whilst this evidence is relevant and might weigh against the existence of a genuine dispute, it is not conclusive when considered against the balance of the evidence in the case, including the objective evidence constituted by the terms and conditions and the plaintiff’s payment schedule of 5 October 2021 which directly challenged the basis of the second invoice.
I am satisfied that the plaintiff has cleared the evidentiary hurdle in establishing a genuine dispute in relation to the existence of the debt the subject of the statutory demand. The demand should be set aside under s 459H(3) of the Act on that basis.
Offsetting claims
I turn now to the offsetting claims raised by the plaintiff under s 459H(1)(b) of the Act. I will deal with these aspects of the plaintiff’s application briefly.
The plaintiff asserts it has genuine offsetting claims against the defendant in respect of two matters but accepts that the total of the offsetting claims is insufficient to set aside the statutory demand. The two alleged offsetting claims are for:
(a) recovery of the alleged overpayment to the defendant for the sum of $8,855.51 which is the amount in excess of 50% of the contract price the plaintiff was required to pay on its interpretation of the agreement with the defendant; and
(b) a claim of $6,271.90 for loss and damage for breach of contract as represented by the cost incurred by the plaintiff for the disposal of rubbish and excess material allegedly left on site by the defendant after it had suspended works on the property in or around July 2021.
The first offsetting claim is premised on the plaintiff’s contention, which has been previously discussed, that the domestic classification in the table beneath cl 4.3 of the terms and conditions applied and that a 50% deposit was due prior to the commencement of the agreed works with the remainder to be payable upon completion. Given my finding that there is a genuine dispute in respect of this question, and that work remains incomplete, it is unnecessary to deal with this offsetting claim. However, had I been required, I would have ultimately found, for the same reasons discussed above, that the plaintiff can demonstrate the existence of a genuine offsetting claim for the amount of $8,855.51 representing the amount paid in excess of 50% of the total contract price of $109,047.31.
As regards the second offsetting claim, the defendant submits the plaintiff is prevented from raising this ground because it was not identified expressly, or by reasonable inference in the s 459G affidavit filed in support of the application within the 21 day statutory period, being the first Daou affidavit.[67] I accept that submission.
[67]See Sceam [38], [42].
Mr Daou first made reference to clean-up costs in the second Daou affidavit (which was filed outside the requisite 21 day period to make a s 459G application). In the first Daou affidavit, Mr Daou only relevantly deposes that:
The Plaintiff … has an offsetting claim against the Defendant regarding the overpayment of $8,855.51 as well as other loss and damage it has suffered due to the Defendant’s failure and refusal to complete the contractual works pursuant to the terms of the Agreement.
Whilst the first Daou affidavit does contemplate an offsetting claim for loss and damage arising from the defendant’s alleged breach of contract, both the nature of the contractual breach and the resulting loss are unspecified and at large. The works the defendant has allegedly failed to complete are not identified even in a general sense. No term of the agreement between the parties is referred to and no supporting documents are exhibited that may have rendered the claim ascertainable as a matter of reasonable inference. A contractual claim for loss arising from the defendant’s failure to remove debris was not, as a matter of reasonable inference, raised in the first Daou affidavit and the plaintiff cannot rely on it now.
Even if I am wrong that the plaintiff is prevented from now raising the second offsetting claim, I accept the defendant’s submission that it is not a genuine claim advanced in good faith.
In the second Daou affidavit, Mr Daou states that the clean-up costs totalling $6,217.90 were incurred:
[a]s a result of the Defendant’s failure to complete all of the works required by the Agreement and refusal to perform any further works at the Property after 31 May 2021 …
Mr Daou says these costs were incurred because the defendant had failed to dispose of rubbish and excess materials left at the property and that the plaintiff was required to hire a skip bin and engage carpenters and a labourer, who were supervised and assisted by the plaintiff’s foreman to remove these materials.
However, the claim does not appear to be advanced in good faith and the limited facts asserted lack sufficient particularity to enable the Court to determine the claim is not fanciful. The tax invoices exhibited to the second Daou affidavit in support of the offsetting claim do not specify the nature of the work undertaken by the contractors and the site foreman. It is unclear from the invoices to what extent (if any) the work performed concerned clean-up tasks relating to the defendant’s debris and to what extent (if any) it related to other work. It appears inherently implausible that a total of 46 hours was exclusively spent by contractors cleaning up rubbish and materials left by the defendant, or that 38 hours were spent by the foreman supervising and assisting that specific work. It is also unclear whether the skip bin was used exclusively for debris left by the defendant. It is Mr Wright’s uncontradicted evidence that the skip bin was delivered to the site when the defendant was still performing work at the site before any rubbish could possibly have been left behind.
Further, Mr Wright has given unchallenged evidence that the defendant was never informed about any clean-up costs supposedly incurred at its expense until the service of the second Daou affidavit. There appears to be an element of recent invention to the claim. In addition, the plaintiff has not identified the legal basis of its alleged contractual right to be repaid for the clean-up costs it claims it incurred.
I turn now to the plaintiff’s remaining grounds under s 459J of the Act.
Section 459J grounds
The plaintiff argues that the statutory demand and the accompanying affidavit are defective for two reasons:
(a) the documents are ambiguous because they describe the debt claimed in the demand of $35,000.00 as ‘relating to monies due and owing pursuant to [the second invoice]’ in circumstances where that invoice was for a materially different amount of $81,504.61; and
(b) the accompanying affidavit fails to verify the nature of the debt relied upon as required by s 459E(3)(a) of the Act. In particular, the affidavit refers to monies owing under the second invoice but the issuing of an invoice does not of itself create a debt.
I will deal with each argument in turn.
Whether demand and supporting affidavit ambiguous in referring to debt
In LSI Australia v LSI Holdings,[68] Austin J explained the need for a statutory demand to clearly and unambiguously articulate the matters required by s 459E of the Act:
A statutory demand is required by Form 509H to “describe” the debt that is claimed. If the demand is so vague or ambiguous that it fails to identify, to a reasonable person in the shoes of a director of the debtor company, the general nature of the debt to a sufficient degree that the director can assess whether there is a genuine dispute as to the existence or amount of the debt or an offsetting claim, then there is a lack of something necessary for completeness, and therefore a defect in the demand.[69]
[68][2007] NSWSC 1406 (‘LSI Australia’).
[69]Ibid [54].
In Re Simmoll Pty Ltd,[70] I held:
A statutory demand and, by extension, its accompanying affidavit, must put the debtor company on notice in an unambiguous way of the matters the legislation requires, including: the nature of the debt;[71] a statement that the debt is due and payable;[72] and an explanation of how the amount claimed is composed or calculated.[73] Although a debtor company may be presumed to have some familiarity with the relevant subject matter of the statutory demand, it is not obliged to speculate upon what it is that the creditor demands.[74] At the same time, whilst a failure to specify in the demand the precise legal basis of the debt claimed may constitute a defect, it will not necessarily be causative of substantial injustice sufficient to justify its setting aside.[75]
[70][2021] VSC 693 [29] (‘Re Simmoll’).
[71]LSI Australia [54] (Austin J); Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 1257 [18] (Austin J); and Business to All Australia Pty Ltd v North East Developments Pty Ltd (recs and mgrs apptd) [2011] NSWSC 668 [11] (Hammerschlag J).
[72]Main Camp [23] (Barrett J).
[73]RadioMio Pty Ltd v Kendell (2011) 254 FLR 33, 46 [56] (Gardiner AsJ).
[74]Assaf’s Winding Up in Insolvency, citing Main Camp (n 21) [37] (Barrett J) and Embleton Motor Co Pty Ltd v Saedi [2014] WASC 308 [7] (Sanderson M).
[75]Assaf’s Winding Up in Insolvency [8.38], citing Aspermont Ltd v Robash Pty Ltd (1998) 16 ACLC 485; Arrow Asset Management Pty Ltd v Sportsworld Group plc [1999] NSWSC 1207.
In Pluton Resources Limited (Recs and Mgrs Apptd) v Lefty Resources Pty Ltd,[76] Siopis J said:
… it is well recognised that there will not be a substantial injustice when the statutory demand makes clear sufficient information so that a debtor, if its own record keeping has been adequate, is able to determine whether it is liable for the amounts claimed.[77]
[76][2015] FCA 894.
[77]Ibid [16] citing Delta Beta Pty Limited v Vissers (1996) 20 ACSR 583, 586 (Nicholson J).
In my view, the demand and its affidavit are not presented in such vague and ambiguous terms that they would fail to explain to a reasonable person in the position of director of the plaintiff the general nature of the alleged debt to which it refers and how it is composed.
Although the workings out are not included within the demand or the affidavit, the demand clearly refers to the amount which is outstanding against the second invoice. I am satisfied that the plaintiff had sufficient familiarity with the demand’s subject matter without having to speculate as to how the sum claimed was arrived at. When considering the demand alongside the second invoice and the plaintiff’s own record of payments, it would have been readily apparent to a reasonable person in the position of the plaintiff’s director that the sum specified in the statutory demand ($35,000) has been calculated by subtracting the total payments received from the plaintiff ($46,504.61) from the amount of the second invoice ($81,504.61) following its service.
Even if the discrepancy and ambiguity complained of by the plaintiff gave rise to a defect under s 459J(1)(a), I am not convinced that it has occasioned any substantial injustice.
Whether affidavit in support fails to verify nature of debt claimed in demand
The plaintiff submits there is a defect in the affidavit in support of the demand because it refers to an amount owing under an invoice rather than the contractual basis of the debt itself. It is said that this constitutes ‘some other reason’ to set aside the demand pursuant to s 459J(1)(b) of the Act. Reference is made to a number of authorities in apparent support of that proposition.[78]
[78]Plaintiff’s submissions filed 14 February 2022 [42], referring to Growth Equities Corporation Ltd v Genesis Growth Investments Pty Ltd [2010] NSWSC 1302 [4] (Barrett J) (‘Growth Equities Corporation Ltd’); Aromas CaféToowoomba Pty Ltd v Aromas Tea & Coffee Merchants Pty Ltd [2019] FCA 1699 [58] (Reeves J) (‘Aromas Café’) and AMD Resources Ltd v TRS Management Pty Ltd [2021] VSC 202 [40], [43]-[44] (Randall AsJ) (‘AMD Resources’).
In Growth Equities Corporation Ltd, the plaintiff company successfully applied to set aside a statutory demand solely on the genuine dispute ground. In the judgment, Barrett J made the following obiter comments concerning the wording of the relevant demand:[79]
The first of the alleged debts referred to in the statutory demand is said to be “pursuant to” the particularly described invoice. It must be said at once that an invoice of its nature cannot in general create or be the source of a debt. Rather, it has the character of a request or demand for payment in respect of a sum for which liability has already arisen from some independent source, such as by the supply of goods or services.
[79]Growth Equities Corporation Ltd [4].
His Honour was not referring to those matters in the context of s 459J of the Act.
In AMD Resources, Randall AsJ considered the requirements of an affidavit in support of a statutory demand and relevantly stated:
[16]By operation of r 5.2 [of the Corporations Rules] and s 459E(3) [of the Act], it is a statutory requirement to state the nature of the debtor debts relied upon. Referring to an invoice or referring to the statutory demand itself does not satisfy the requirement. One would expect a short description such as: ‘for accounting services at the request of the debtor company during the period X to Y’ or something similar.
…
[44] … The obligation of verification extends not only to the fact that the debts are due and payable and that there is no genuine dispute as to the existence or amount of the debt, but also extends to the nature of the debt claimed. The nature of the debt claimed is the foundation of the statutory demand. Even if the reference to the debts in the statutory demand is a reference to the unpaid invoices, it is insufficient given that it does not refer to what the invoices were in relation to. The invoices do not create the debts but merely record the claims.[80] Following Aromas Cafe, this defect would constitute a substantive departure from the Corporations Rules and the requirement in s 459E(3) and therefore may constitute ‘some other reason’ to set aside the statutory demand under s 459J(1)(b).
[80]Growth Equities [4]; Core Toughened Pty Ltd v Lisec Australia Pty Ltd [2015] VSC 534 [18] (Randall AsJ).
His Honour ultimately held that the failure of the supporting affidavit to describe the nature of the debt was sufficient reason for him to set aside the statutory demand under s 459J(1)(b) of the legislation.[81]
[81]AMD Resources [18], [48], [130].
In the earlier decision of Aromas Café, referred to by Randall AsJ in AMD Resources,[82] Reeves J held that reference in the supporting affidavit to mere invoices rather than the underlying contractual debts did not provide requisite verification of the debt claimed in the demand as required by s 459E(3)(a) of the Act. However, it was only when this deficiency was taken together with other (and arguably more serious) matters that there was held to be ‘some other reason’ to set the demand aside under s 459J(1)(b).[83] In particular, the relevant demand had also claimed items that could not have genuinely been claimed as debts and the creditor had sought to use the statutory demand procedure in Pt 5.4 within the context of a broader dispute to achieve a collateral purpose by foreclosing on, or at least hampering, litigation that the debtor company was likely to commence.[84] Justice Reeves considered that those matters jointly constituted ‘some other reason’ for the demand to be set aside under s 459J(1)(b).
[82]Aromas Cafe [59].
[83]Ibid.
[84]Ibid [38], [59].
In Re Simmoll, I observed:[85]
The authorities make clear that a failure by a creditor to properly verify matters required by the prescribed form of affidavit found in Form 7 of the Corporations Rules may constitute ‘some other reason’ to set aside the statutory demand under s 459J(1)(b) of the [Act].[86] The absence of a specific reference to the nature of the debt in the affidavit may warrant the setting aside of the statutory demand under s 459J(1)(b) of the legislation,[87] although it is not necessary for the deponent of the affidavit to set out every element of the cause of action upon which the demand is founded.[88] Similarly, where the subject words of the affidavit are ambiguous, the affidavit may not provide the requisite verification of the debt claimed in the statutory demand pursuant to s 459E(3) of the [Act] and the demand is susceptible to being set aside under s 459J(1)(b).[89]
[85]Re Simmoll [37].
[86]See in particular: Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd (1996) 20 ACSR 746 and IFA Homeware Imports Pty Ltd v Shanghai Jerrys Candle Co Ltd [2003] FCA 533 [22]‑[26] (Tamberlin J) (failure to state belief that no genuine dispute in relation to the debt claimed); Main Camp [23] and Saferack Pty Ltd v Marketing Heads Australia Pty Ltd (2007) 214 FLR 393, 402‑3 [39]-[41] (Barrett J) (failure to verify that the debt is due and payable). See also Assaf’s Winding Up in Insolvency [8.53]-[8.54] and the additional authorities referred to therein.
[87]AMD Resources [37].
[88]See Azed Developments Pty Ltd v Frederick & Co Ltd (in liq) (1994) 14 ACSR 54.
[89]Referring to Aromas Café [59].
In that case, the relevant supporting affidavit described the debt as relating to payments invoiced pursuant to a building contract for works which were not performed. I held that the affidavit did not comply with Form 7 of the Corporations Rules and s 459E(3)(a) of the Act because it did not clearly state the nature of the debt, refer to the source of the obligation on the plaintiff to make payment or illuminate the basis upon which the debt set out in the demand is calculated.[90] There were also a litany of other problems with the supporting affidavit including: the reference to and inclusion of four invoices which was confounding in circumstances where the demand itself did not apparently relate to all of those invoices; inconsistency in the description of the debt as between the affidavit in support and the demand itself; and inconsistency between information in the affidavit and its exhibits and the demand itself.[91] Taken together, the affidavit in support of the statutory demand and its annexures were ‘an amalgam of confusing, inconsistent and unclear information’ which constituted ‘some other reason’ to set the demand aside under s 459J(1)(b) of the legislation.[92]
[90]Re Simmoll [39].
[91]Ibid [40]-[41].
[92]Ibid [42].
As previously mentioned, the demand in this case refers to:
Monies due and owing pursuant to Airconditioning and Electrical Services (Aust) Pty Ltd tax invoice no. 6494 dated 31 May 2021 [the second invoice].
The affidavit accompanying the demand affirmed by Mr Wright on 14 October 2021 relevantly states:
1.I am the Director of the Creditor named in the Statutory Demand which this Affidavit accompanies in respect of a debt of $35,000.00 owed by the Debtor company, J Build Developments Pty Ltd (ACN 142 153 544), relating to monies due and owing pursuant to Airconditioning and Electrical Services (Aust) Pty Ltd’s tax invoice no. 6394 dated 31 May 2021.
…
4.The debt mentioned in paragraph 1 of this affidavit, is due and payable by the Debtor company.
The reference in the supporting affidavit to the second invoice and not also to the underlying contractual basis pursuant to which goods and services were provided by AES means the affidavit does not strictly conform with Form 7 of the Corporations Rules and s 459E(3)(a) of the Act. However, in my view, this deficiency, of itself, is not sufficient for the Court to exercise its discretion to set aside the statutory demand for ‘some other reason’ under s 459J(1)(b) of the Act.
Unlike in Aromas Café and Re Simmoll, there are no additional factors and circumstances in this case which, when taken in combination, would justify an order setting aside the demand for ‘some other reason’ under s 459J(1)(b). There is nothing to suggest such an order is required to maintain the integrity of the statutory demand procedure in Pt 5.4 of the Act and to counter its subversion.[93] Further, I have already found that the demand and supporting affidavit are not presented in such a vague and ambiguous way that they would fail to explain to a reasonable person in the position of director of the plaintiff the general nature of the alleged debt to which it refers and how it is composed. As already noted, a defect in a demand constituted by a failure to specify the precise legal basis of the debt will not necessarily be causative of substantial injustice sufficient to warrant its setting aside for the purpose of s 459J(1)(a).[94] It would therefore be a rare case where a similar deficiency in the supporting affidavit would, without more, justify the setting aside of a statutory demand under s 459J(1)(b).
[93]Rinfort Pty Ltd v Arianna Holdings Pty Ltd (2016) 111 ACSR 607, 633 [84] (Black J); Re MHC Pathology [75].
[94]Assaf’s Winding Up in Insolvency [8.38], citing Aspermont Ltd v Robash Pty Ltd (1998) ACLC 485; Arrow Asset Management Pty Ltd v Sportsworld Group plc [1999] NSWSC 1207; Re Simmoll [29].
In coming to this conclusion, I respectfully decline to follow the decision of Randall AsJ in AMD Resources on this aspect.
Conclusion
For the reasons set out above, the statutory demand will be set aside by reason of a genuine dispute pursuant to s 459H(1)(a) of the Act and because of an associated offsetting claim under s 459H(1)(b) of the legislation. A further offsetting claim and other grounds advanced under s 459J have not succeeded.
I will hear the parties on the question of costs.
SCHEDULE OF PARTIES
| S ECI 2021 04062 | |
| BETWEEN: | |
| J BUILD DEVELOPMENTS PTY LTD (ACN 142 153 544) | Plaintiff |
| - v - | |
| AIRCONDITIONING AND ELECTRICAL SERVICES (AUST) PTY LTD (ACN 132 544 793) | Defendant |
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