Re Roberts Construction Group Pty Ltd

Case [2024] VSC 679


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2024 01491

IN THE MATTER of ROBERTS CONSTRUCTION GROUP PTY LTD (ACN 641 105 580)

BETWEEN:

ROBERTS CONSTRUCTION GROUP PTY LTD (ACN 641 105 580) Plaintiff
v 
C & N MCNAMARA ENTERPRISES PTY LTD (ACN 646 386 692) Defendant

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JUDGE:

Steffensen AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

18 July 2024

DATE OF RULING:

7 November 2024

CASE MAY BE CITED AS:

Re Roberts Construction Group Pty Ltd

MEDIUM NEUTRAL CITATION:

[2024] VSC 679

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CORPORATIONS – Application to set aside statutory demand under s 459H by reason of a genuine dispute or offsetting claim – Where the statutory demand states the debt arises from shop drawings delivered pursuant to a contract and subsequently issued payment claim and tax invoice – Whether the defendant is permitted to argue an alternative legal basis of the debt under the Building and Construction Industry Security of Payment Act 2002 (Vic) – CM Luxury Pty Ltd v Menzies Civil Australia Pty Ltd [2023] WASC 340 considered – Where plaintiff claims parties agreed the payment was in the nature of deposit – Where plaintiff issued a payment schedule accepting the payment claim and debt – Where defendant prepared shop drawings but did no further work and did not purchase materials - Where contract terminated and plaintiff issued further payment schedule reducing amount owed by reference to the asserted deposit – Genuine dispute or offsetting claim established as to whether parties agreed the payment was to be a deposit – No genuine dispute established with respect to the second payment schedule – Genuine offsetting claim for legal costs not established – Service of demand not an abuse of process under s 459J(1)(b) – Substantiated amount calculated and demand varied – Corporations Act 2001 (Cth) ss 459G, 459H, 459J; Building and Construction Industry Security of Payment Act 2002 (Vic) ss 15, 17.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff A Carruthers   Eidelweisz Lawyers Pty Ltd
For the Defendant S Rubenstein Merton Lawyers

TABLE OF CONTENTS

A.. Introduction

B.. Does the demand claim a SOP Act debt?

B.1          Applicable principles

B.2          Consideration

C.. Is there a genuine dispute or offsetting claim?

C.1          Applicable principles

C.2          Is there a genuine dispute or offsetting claim re the payment being a deposit?

C.3          Is there a genuine offsetting claim for costs?

D.. Was the demand an abuse of process?

E... What is the substantiated amount?

F... Other Issues

G.. Orders

HER HONOUR:

A               Introduction

  1. This is an application pursuant to ss 459G and 459H of the Corporations Act2001 (Cth) (‘CorporationsAct’) to set aside a statutory demand on the basis that there is a genuine dispute and/or offsetting claim in respect of the debt the subject of the demand, or alternatively, that it should be set aside for ‘some other reason’ under s 459J on the basis that it was served in an abuse of process.

  2. The plaintiff and the defendant…

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AGLC
Re Roberts Construction Group Pty Ltd [2024] VSC 679
Case
[2024] VSC 679
Decision Date

CaseChat Overview and Summary

Roberts Construction Group Pty Ltd applied to set aside a statutory demand issued by its creditor. The dispute centred around whether a debt of $187,574.66, arising from shop drawings and a payment claim and tax invoice, was genuinely disputed or if there was an offsetting claim. The application was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the defendant could argue an alternative legal basis for the debt under the Building and Construction Industry Security of Payment Act 2002 (Vic) and whether a genuine dispute or offsetting claim existed. The court had to determine if the defendant could present an alternative legal basis for the debt, in light of the statutory demand asserting the debt arose from shop drawings and a payment claim and tax invoice. The court also had to examine if the defendant's claim that the payment was a deposit and not the full amount due constituted a genuine dispute or offsetting claim.

The court found that the defendant could argue an alternative legal basis for the debt but ruled that there was a genuine dispute regarding whether the payment was a deposit. The court concluded that the statutory demand was not an abuse of process and varied the demand to reflect the substantiated amount. The court held that the genuine dispute as to the nature of the payment did not extend to the second payment schedule, and no genuine offsetting claim for legal costs was established. The court's decision was influenced by the case CM Luxury Pty Ltd v Menzies Civil Australia Pty Ltd [2023] WASC 340.

The court ordered that the statutory demand be varied to reflect the substantiated amount of $116,574.66 and dismissed the application to set aside the statutory demand in part. The court found that while a genuine dispute existed regarding the nature of the payment, it did not extend to the second payment schedule or the claim for legal costs. The court's decision was based on the evidence presented and the applicable sections of the Corporations Act 2001 (Cth) and the Building and Construction Industry Security of Payment Act 2002 (Vic).

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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