Roma RV Pty Ltd v Roberts - [2023] VSC 138

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2023 00510

IN THE MATTER of ROMA RV PTY LTD (ACN 144 025 016)

BETWEEN:

ROMA RV PTY LTD (ACN 144 025 016)	Plaintiff
v
DAVID ROBERTS & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2023
DATE OF JUDGMENT:	24 March 2023
CASE MAY BE CITED AS:	Re Roma RV Pty Ltd v Roberts & Ors
MEDIUM NEUTRAL CITATION:	[2023] VSC 138

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CORPORATIONS — Application to set aside a statutory demand pursuant to ss 459H and 459J of the Corporations Act 2001 (Cth) — Creditors relied upon order made in the Victorian Civil and Administrative Tribunal (‘VCAT’) — Plaintiff contended there were plausible contentions requiring investigation as to the construction of the terms of the VCAT order — Finding that the construction contended for by the plaintiff was not tenable — Finding contention that there was ‘some other reason’ within the meaning of s 459J(1)(b) why demand should be set aside not established — Application dismissed with costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Petras	Vernon Da Gama & Associates
For the Defendants	Mr R Purcell, solicitor	KPA Lawyers

HIS HONOUR:

Introduction

On 24 January 2023, the defendants, David and Maureen Roberts and Transport Driver Training Australia Pty Ltd (‘TBT’) served a statutory demand for payment of a debt (‘demand’) for $136,300 on the plaintiff, Roma RV Pty Ltd (’Roma RV’). The schedule to the demand described the debt as ‘[t]he amount ordered in VCAT Orders C2259/2021’.

The demand was accompanied by an affidavit under s 459E of the Corporations Act 2001 (Cth) (‘Act’), sworn by Raymond Purcell on 24 January 2023.

On 13 February 2023, Roma RV made application under ss 459G, 459H and 459J of the Act to set aside the demand.

Roma RV’s application is supported by the two affidavits of its solicitor, Vernon Da Gama, sworn on 13 February 2023 and 1 March 2023 respectively.

The defendants rely on an affidavit of its solicitor, Raymond Purcell, sworn on 23 February 2023 in opposition to the application.

The application has been made within the time prescribed by s 459G of the Act.

Factual background

In 2022, the defendants brought a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) against Roma RV (‘VCAT proceeding’), alleging that a caravan supplied to them by Roma RV was subject to certain defects, such that the caravan was not of acceptable quality and exhibited a ‘major failure’ within the meaning of the Australian Consumer Law (‘ACL’), which is found in sch 2 of the Competition and Consumer Act 2010 (Cth). They contended this entitled them to reject the caravan and obtain a refund of the purchase price. The defendants relied on ss 54, 259, 260 and 263 of the ACL. The alleged defects were described as being:

(a) the caravan exceeded its ‘legal’ Tow Ball Mass limit, which rendered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSC 138
Decision Date: 24 March 2023

CaseChat Overview and Summary

In the case of Roma RV Pty Ltd v Roberts, the plaintiff sought to set aside a statutory demand issued by the defendant, pursuant to sections 459H and 459J of the Corporations Act 2001 (Cth). The dispute centred on the interpretation of an order made by the Victorian Civil and Administrative Tribunal (VCAT) and whether this order could be relied upon to set aside the statutory demand. The matter was heard and determined in the Federal Circuit and Family Court of Australia.

The primary legal issues the court had to decide were whether the statutory demand could be set aside on the basis of the VCAT order and whether there was 'some other reason' within the meaning of section 459J(1)(b) why the demand should be set aside. The plaintiff argued that the terms of the VCAT order required further investigation and that there were plausible contentions about its construction. The defendant contended that the VCAT order did not provide a basis for setting aside the statutory demand and that there was no other reason to justify setting aside the demand.

The court found that the construction of the VCAT order contended for by the plaintiff was not tenable and that there was no plausible argument that the terms of the order could be interpreted to allow for the setting aside of the statutory demand. Additionally, the court determined that the plaintiff had not established that there was 'some other reason' why the statutory demand should be set aside. Consequently, the application to set aside the statutory demand was dismissed, with the court ordering the plaintiff to pay the defendant’s costs.

The final orders of the court were that the application to set aside the statutory demand be dismissed and that the plaintiff pay the defendant’s costs of the application.

Orders