Roma RV Pty Ltd v Roberts
[2023] VSC 138
•24 March 2023
| 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 it illegal to use (‘Tow Ball Mass Claim’); and
(b) a number of minor defects, which collectively amounted to a major failure.[1]
[1]Competition and Consumer Act 2010 (Cth) sch 2 s 260.
Roma RV argued the Caravan had only minor defects that, at most, entitled the defendants to have these defects repaired at Roma RV’s expense.
The defendants’ application was heard in VCAT on 16 and 17 June 2022 before Deputy President Lulham.
On 19 October 2022, Deputy President Lulham made orders (‘VCAT Orders’) and gave reasons.[2] The VCAT Orders state:
[2]Roberts v Roma RV Pty Ltd(Civil Claims) [2022] VCAT 1208 (‘VCAT Proceeding’).
1.The respondent’s application for summary dismissal of the proceeding is dismissed.
2.The Tribunal declares that the purchaser of the caravan which is the subject of this proceeding was the third applicant.
3.Costs of the respondent’s application for summary dismissal, and of the proceeding generally, are reserved.
4.The Tribunal declares that the third applicant has rejected the caravan and that it was entitled to do so.
5.The applicants have only sought an order that the respondent refund to them the purchase price of the caravan, and the evidence establishing that the applicants together paid the respondent $136,300.00, the respondent shall pay the applicants $136,300.00.
6.Any application for costs shall be made in writing by 1 December 2022. Any such application should not be accompanied by a formal bill of costs, but should be accompanied by a brief written submission addressing the question of liability for costs. [3]
[3]On 14 March 2023, Deputy President Lulham ordered that Roma RV pay the defendants’ costs of the VCAT proceeding to be assessed by the Costs Court.
Paragraph 11 of Deputy President Lulham’s reasons stated:
In paragraph 5 of the Amended Points of Claim the applicants plead that Mr and Mrs Roberts paid $29,000.00 to the respondent in three tranches, and that a finance company paid $95,300.00 to the respondent pursuant to a commercial loan and mortgage between the financier and TDT. Mr Roberts gave evidence that he had worked in TDT, as an ‘owner’ in non-technical terms, and that he had retired from active service although he remained a director. The Roberts’ son ‘had taken over the business’ and the company TDT was contributing to the purchase of the caravan as a ‘retirement package’. Mr Roberts gave evidence to that effect in the hearing. The respondent did not have any evidence to give in reply. Given that TDT not only provided the vast majority of the purchase price, but gave security over the caravan in order to obtain the loan, I find that TDT was the purchaser. I think that the contribution by Mr and Mrs Roberts to the purchase price is better understood as being an unsecured loan by them to TDT, as a means of the ‘retirement package’ being less than the entire purchase price of the caravan.
In his reasons, Deputy President Lulham found the caravan was not fit for purpose because of the Tow Ball Mass claim.[4] Further, by reason of a number of defects in the caravan, he considered that this constituted a major failure within the meaning of the ACL and the defendants were entitled to reject the caravan under s 259(3) of the ACL.[5]
[4]VCAT Proceeding (n 2) [156].
[5]Ibid [161]–[165].
At the time of service of the demand, the orders of Deputy President Lulham had not been registered in the County Court under s 121 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) so as to transform them into a judgment debt. However, I consider the effect of the VCAT Orders is to create a debt under the terms of the orders.[6]
[6]See the observations of Hetyey AsJ in Re Sceam Construction Pty Ltd [2021] VSC 437, [34], [37].
Roma RV’s affidavit evidence in opposition to the application
In his affidavit sworn on 13 January 2023, Mr Da Gama refers to paragraph 4 of Mr Purcell’s affidavit accompanying the demand, which deposed that:
In the VCAT proceeding, VCAT ordered by an Order dated 19 October 2022, that the company is to pay the creditors the amount of $136,300.00 (‘the debt’).
Mr Da Gama states ‘this was not the order made by Deputy President Lulham’, rather, the orders of Deputy President Lulham ‘clearly convey that it is only [TDT] that has any entitlement to the amount of $136,300.00’.
Mr Da Gama also contends there is a genuine dispute as to whether TDT or Roma RV ought to bear the cost of returning the caravan to Roma RV. He states that ‘[t]his is a cost that relates to the $136,000 being the subject of the demand’. He asserts that an application was being made in VCAT that day, 13 February 2023, to determine this issue.
Mr Da Gama contends that the defendants’ statutory demand is fundamentally defective and must be set aside.
Defendants’ affidavit evidence in opposition to the application
In his affidavit sworn on 23 February 2023, Mr Purcell states he represented the defendants in the VCAT proceeding before Deputy President Lulham. He refers to Mr Da Gama’s contention that only the third defendant, TDT, was owed the sum of $136,300 by Roma RV. He takes issue with this contention and refers to the express terms of order 5 of Deputy President Lulham, which are extracted above.
Mr Purcell denies that only TDT is entitled to the amount claimed in the demand.
Mr Purcell also takes issue with Mr Da Gama’s statement that there is a genuine dispute as to who should bear the cost of returning the caravan the subject of the VCAT proceeding to Roma RV. Mr Purcell states this issue was not in question in the VCAT proceeding and Deputy President Lulham did not address this issue. Mr Purcell states this does not give rise to a genuine dispute in respect of the amount ordered to be paid by Roma RV to the defendants under the VCAT Orders.
Mr Purcell also observes that Roma RV has not appealed the orders of Deputy President Lulham.
Mr Purcell concludes his affidavit with the reference to the terms of s 263 of the ACL.[7] He contends this provision applies in the present matter as TDT notified Roma RV that it wished to reject the caravan and VCAT determined it was entitled to do so. Mr Purcell contends that s 263(2)(b)(ii) of the ACL applies to the present matter as the caravan, the subject of the VCAT proceeding, cannot be returned, removed or transported without significant costs to the defendants by reason of the size of the caravan.
[7]This provision is concerned with consequences of rejecting goods, including costs associated with the return of those goods to the supplier.
Mr Da Gama’s affidavit of 1 March 2023
In this affidavit, Mr Da Gama exhibits correspondence between his firm and VCAT in respect of an application he states was made on 13 February 2023 to VCAT to determine the question of who should bear the cost of returning the caravan to Roma RV, as well as an application to amend order 5 of the VCAT Orders under the ‘slip rule’ to provide that only TDT has any entitlement to be paid by Roma RV (‘VCAT application’). That application has not yet been given a return date.
Plaintiff’s submissions
Roma RV submitted that its application relies primarily on s 459J(1)(b) of the Act and alternatively, upon ss 459H(1)(a) and 459J(1)(b). It contended that where an applicant to set aside a statutory demand claims to prove a debt is not due and payable as a ground under s 459J(1)(b), all that is required is there be a ‘plausible contention requiring investigation’ that the debt is not presently due and payable.[8]
[8]Citing Re ReNu Waste Pty Ltd [2020] NSWSC 108,[32] (Rees J) (‘ReNu Waste’).
In Re ReNu Waste Pty Ltd (‘ReNu Waste’),[9] Rees J stated:
Thus, when a company applies to set aside a statutory demand on the basis that there is a genuine dispute, not as to the existence or the amount of the debt, but whether it is due and payable within the meaning of section 459E, then the Court may set it aside either under section 459H(1)(a), 459J(1)(a) or 459J(1)(b), but, whichever route is taken, the Court must be satisfied before doing so that there is a “plausible contention requiring investigation” that the debt is not presently due and payable.
[9]Ibid.
Similarly, in Longjing Pty Ltd (‘Longjing’),[10] Gleeson JA observed:
[It] is common ground that the same approach in terms of “onus” should apply under s 459J(1)(b) to the issue whether the debt the subject of the demand is not presently due and payable, as would be the case if the issue arose in the context of whether there was a “genuine dispute” in relation to the debt under s 459H(1). That is, the relevant question is whether there is a “plausible contention requiring investigation” that the debt is not presently due and payable: Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601 at [55] (Beazley P, Meagher JA and Gleeson JA).
[10][2017] NSWSC 1534 at [46] (‘Longjing’)
Roma RV’s submissions focused on the interpretation of order 5 of the VCAT Orders, which read:
The applicants have only sought an order that the respondent refund to them the purchase price of the caravan, and the evidence establishing that the applicants together paid the respondent $136,300.00, the respondent shall pay the applicants $136,300.00.
In exchanges between Mr Petras, counsel for Roma RV, and I at the hearing of this matter on 22 March 2023, I observed that it appeared the contention which Roma RV was seeking to press was in the nature of a conventional genuine dispute by which Roma RV sought to contend TDT alone was a creditor as a result of the VCAT Orders. As such, Roma RV’s application would not, in my view, properly be characterised as an application that for ‘some other reason’ under s 459J(1)(b) the demand should be set aside. The issue is, in any event, somewhat arid as ReNu Waste and Longjing indicate that Roma RV, whatever provision Roma RV’s application was made under, would be required to establish the existence of a plausible contention requiring investigation.
The essence of Roma RV’s application is the observations made by Deputy President Lulham, in paragraph 11 of his reasons which are extracted above, and order 5 of his orders, are inconsistent.
The submissions contend there are two possible interpretations of order 5. First, it is contended that a ‘mere description’ construction is open. Adopting this approach, Roma RV submits that order 5 can be broken down into the following propositions:
(a) the applicants have only sought an order that the respondent refund to them the purchase price;
(b) the applicants have only sought to establish that the applicants together paid the respondent $136,300; and
(c) the applicants have only sought an order that the respondent shall pay the applicants $136,300.
Alternatively, it is submitted that order 5 can be construed as a ‘liability reading’, by which the order is broken down into the following propositions:
(a) the applicants have only sought an order that the respondent refund to them the purchase price;
(b) the evidence establishes that the applicants together paid the respondent $136,300; and
(c) the respondent shall pay the applicants $136,300.
Roma RV submitted it is open to construe the VCAT Orders by adopting the ‘mere description reading’ and the demand should be set aside by reason that:
(a) there is no debt as against all three defendants and therefore there is a genuine dispute as to the existence of the debt;
(b) there is no debt against all three defendants and therefore the inclusion of all three defendants in the statutory demand is a defect in the demand that is productive of substantial injustice;
(c) there is no debt due and payable as against the third defendant as VCAT made no order for a refund and that the mere reliance on the ACL for a ‘refund’ does not create a debt until the return of the vehicle; or
(d) alternatively to (c), that the debt as against the third defendant, although due and payable, is subject to an offsetting claim arising out of the failure to return the caravan.
Roma RV submits that if the Court were to accept the ‘liability reading’, then there is a genuine dispute as to whether:
(a) order 5 was so declared in error and is liable to be set aside under the slip rule giving rise to a controversy as to whether all three defendants are in fact creditors; or
(b) there is a legal error affecting order 5, giving rise to no appeal.
It is further submitted that if the Court is unconvinced as to either construction, this itself suggests that such a difficulty is best rectified, affirmed or otherwise clarified by VCAT and gives rise to ‘some other reason’ for the Court to set aside the demand under s 459J(1)(b).
In its written submissions,[11] Roma RV seeks to fashion an argument relating to the operation of s 263 of the ACL, a provision concerned with the consequences of rejecting goods including the return of such rejected goods.
[11]Plaintiff’s written submissions filed on 16 March 2023, [9]–[12].
In its submissions,[12] Roma RV seeks to make an argument that the caravan is ‘currently being held by either, any or all of the defendants against the wishes of the [plaintiff]’ and this ‘creates an action in detinue or conversion of the caravan’ and that this is a claim that would be capable of offsetting the debt now alleged against the plaintiff. In my opinion, Mr Da Gama’s affidavit could not be read so as to give fair notice of such a ground.[13] If I am not correct on that view, such an offsetting claim is not, in any event, developed at all in the evidence. In particular, while such a claim is asserted, there is no substantiation or quantification of such a claim as is required. There was no impediment to Roma RV putting on material to establishing that it had an offsetting claim constituted by the cost of return of the caravan. Such a claim was susceptible of being quantified by evidence as to the cost of transporting the caravan from Queensland to Victoria. Its cogency could have been supported by evidence and contentions going to why it was arguable that the defendants would be made to pay the costs of return of the caravan despite their succeeding in their claim and being awarded costs in their favour.
[12]Ibid [13]–[15].
[13]See Sceam Construction Pty Ltd v Clyne (2021) 64 VR 404, [38]–[43].
The written submissions then contend there is no basis for the allegation that all three creditors are owed the alleged debt and that to construe the VCAT Orders as creating an entitlement in all three purported creditors would be to say that VCAT intended to create legal entitlements in contradiction to the written reasons. It is said that order 5 should be read as a ‘mere declaration as to the manner in which the purported creditors brought their proceeding in VCAT’. I understood this to be a submission very similar in substance to Roma RV’s ‘mere description’ submission.
The submissions then return to the subject of the costs of returning the caravan. The defendants had contended such costs would fall on the supplier under s 263(2)–(3) of the ACL. Roma RV submits that to allow the defendants to press a substantive case in relation to s 263(2) would be to ‘circumvent the proper determination of the matter in VCAT’. Roma RV submits this proceeding is not the appropriate forum to determine the question of which party ought to bear the return costs of the caravan. Section 263(2) of the ACL involves an assessment of particular factual matters that are properly the subject of evidence.
Defendant’s submissions
The defendants’ submissions reiterated the events that lead to the proceeding, including the purchase of the allegedly defective caravan and the VCAT proceeding. The submissions take issue with the claims in Mr Da Gama’s affidavit sworn on 13 February 2023 that the VCAT Orders state only the third defendant is owed the amount claimed in the demand.
Statutory provisions and legal principles
Section 459G of the Act provides:
Company may apply
(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 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.
Section 459H of the Act provides:
Determination of application where there is a dispute or offsetting claim
(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.
(2)The Court must calculate the substantiated amount of the demand in accordance with the formula:
Admitted total minus Offsetting total
where:
“admitted total” means:
(a) the admitted amount of the debt; or
(b) the total of the respective admitted amounts of the debts;
as the case requires, to which the demand relates:
“offsetting total” means:
(a)if the Court is satisfied that the company has only one offsetting claim--the amount of that claim; or
(b)if the Court is satisfied that the company has 2 or more offsetting claims--the total of the amounts of those claims; or
(c)otherwise--a nil amount.
(3)If the substantiated amount is less than the statutory minimum, the Court must, by order, set aside the demand.
(4)If the substantiated amount is at least as great as the statutory minimum, the Court may make an order:
(a)varying the demand as specified in the order; and
(b)declaring the demand to have had effect, as so varied, as from when the demand was served on the company.
(5) In this section:
“admitted amount” , in relation to a debt, means:
(a)if the Court is satisfied that there is a genuine dispute between the company and the respondent about the existence of the debt--a nil amount; or
(b)if the Court is satisfied that there is a genuine dispute between the company and the respondent about the amount of the debt--so much of that amount as the Court is satisfied is not the subject of such a dispute; or
(c)otherwise--the amount of the debt.
“offsetting claim” means 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).
“respondent” means the person who served the demand on the company.
(6) This section has effect subject to section 459J.
Section 459J provides:
Setting aside demand on other grounds
(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 the decision of the Court of Appeal in this State in Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq)[14], the Court summarised the approach to be taken in applications to set aside statutory demands as follows:
In determining such an application, it is not necessary or appropriate for a court to engage in an in-depth examination or determination of the merits of the alleged dispute. This is because an application alleging a genuine dispute or offsetting claim is akin to one for an interlocutory injunction and requires the applicant to establish that there is a ‘plausible contention requiring investigation’ of the existence of either a dispute as to the debt or an offsetting claim. It is therefore not helpful to perceive that one party is more likely than the other to succeed or that the eventual state of the account between the parties is more likely to be one result than another. Further, the determination of the ‘ultimate question’ of the existence of the debt at a substantive hearing should not be compromised.
The court is required to determine whether the dispute or offsetting claim is ‘genuine’. It has been said that the criterion of a ‘genuine’ dispute requires that the dispute be bona fide and truly exist in fact and that the grounds for alleging the existence of a dispute be real and not spurious, hypothetical, illusory or misconceived. It has also been observed that the dispute or offsetting claim should have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion. It must also have sufficient factual particularity to exclude the merely fanciful or futile. A rigorous curial approach is essential to the effective operation of the statutory scheme.
The court is not required to accept uncritically every statement in an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be, as it may not have sufficient prima facie plausibility to merit further investigation as to its truth. The court is also not required to accept uncritically a patently feeble legal argument or an assertion of facts unsupported by evidence, although this should not be read as suggesting that the applicant must formally or comprehensively evidence the basis of its dispute or off-setting claim. Except in such extreme cases, the court should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on by the applicant to set aside a statutory demand.[15]
[14][2015] VSCA 330 (per Kyrou, Ferguson and Kaye JJA).
[15]Ibid [48]–[50] (emphasis added) (citations omitted).
In the decision of the New South Wales Court of Appeal in Ligon 158 Pty Ltd v Huber,[16] Barrett AJA stated:
The issue for the court is not whether the company would succeed on those grounds in defending a debt recovery action brought against it by the person who served the statutory demand. Rather, the court must decide whether the grounds of dispute delineated by the affidavit are grounds which, when viewed in the whole of the circumstances emerging from the evidence, indicate a plausible defence propounded in good faith and not one merely constructed in response to the pressure represented by the statutory demand. Issues of credibility will generally be confined to the question whether the asserted grounds are of that quality, as distinct from questions going to the ultimate merits of the postulated defence itself. …
The restraint that a court should exercise in considering the ultimate question of the indebtedness of a company served with a statutory demand was emphasised by Brooking and Charles JJA in Spacorp Australia Pty Ltd v Myer Stores Ltd [2001] VSCA 89; (2001) 19 ACLC 1270. They said (at [3]–[4]):
“The only question for us is whether the judge erred in determining that there was no genuine dispute. One can of course differ from the judge without deciding that the debt did not exist. A great range of states of mind on what we might call the ultimate question - the existence of the debt - may accompany the view that there is a genuine dispute, ranging from a clear conviction that the debt does not exist to the opinion that the genuine dispute hurdle has only just been cleared.
We think, if we may say so, that, except in a case in which it is as plain as a pikestaff that there is no debt (where bluntness may be in the interests of both sides), judges should, in general at all events, in dealing, whether at first instance or on appeal, with the question of genuine dispute, be at pains to perform the admittedly delicate task of disposing of that question without expressing a view on what we have called the ultimate question. For otherwise, on an application which resembles if it is not in law an interlocutory one, things may be said which embarrass the judge before whom the ultimate question comes.
[16](2016) 117 ACSR 495, 499 [10]–[11] (Barrett AJA, McColl JA agreeing at 496 [1] and Meagher JA agreeing at 496 [2]).
While the decision of the New South Wales Court of Appeal in Creata (Aust) Pty Ltd v Faull (‘Creata’)[17] was a decision concerned with competing constructions of contractual documents rather than interpretation of an order made by an administrative tribunal, I consider that the situation under consideration here is somewhat akin and the principles described have some application to resolution of the question of whether it is open to construe order 5 in the way that Roma RV submits. Barrett AJA stated:
The primary judge was confronted by a dispute about the content of Mr Faull’s contractual promise in cl 4(b), read in conjunction with the cl 4(c) definition or description of “Confidential Information” and, therefore, a dispute about whether cl 4(f) had operated to relieve Creata of its obligation to pay the instalment of US$400,000 to which the statutory demand related. The competing constructions of cll 4(b) and 4(c) for which counsel contended (albeit briefly, given the nature of the proceeding) were plausible. Neither side’s argument was so obviously correct or incorrect as to put the issue of construction beyond the realms of reasonable debate. Ultimate resolution could only come from an objective determination, in appropriately constituted proceedings, of what a reasonable business person would have understood the clauses to have meant. Central to any such determination would be the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract.
This was not a case in which counsel for Creata presented a “patently feeble argument” as to the true construction of cl 4(b) and cl 4(c). Nor was the answer to the question of construction “as plain as a pikestaff”, to quote again the words used in Spacorp (above). As this Court said in Infratel Networks Pty Ltd v Gundry’s Telco & Rigging Pty Ltd (2012) 297 ALR 372; 92 ACSR 27; [2012]NSWCA 365 (Infratel Networks) at [46], s 459G proceedings are not ordinarily the occasion for the court to construe a contract where there are competing views about its meaning. This was such a case; and there was nothing to displace the principle ordinarily applicable. Competing but plausible submissions on the question of construction should have led to a finding that there was dispute on that question and therefore dispute as to the existence of the debt the subject of the statutory demand.[18]
[17][2017] NSWCA 300.
[18]Ibid [36]–[37].
Consideration
In my view, I do not consider that Roma RV has demonstrated there is a plausible contention requiring investigation, whether its application be characterised as being under ss 459H or 459J of the Act. In my opinion, it has not established that there is a genuine dispute in respect of the debt claimed in the demand, the existence of a genuine offsetting claim or that there is ‘some other reason’ why the demand should be set aside.
I do not accept Mr Petras’ submission that it is open to interpret order 5 of the VCAT Orders as an expression of a ‘mere description’ as to how the defendants had put their case in VCAT. Order 5 appears in the body of the order, not in a segment of the order that makes background observations or remarks. It follows orders and declarations in respect of the defendants’ application and concludes with the words ‘the respondent shall pay the applicants $136,300’. The intent of the order is clear and I consider that when one bears in mind the general principles described in Creata, only the ‘liability reading’ construction of the order is available.
The order of Deputy President Lulham of 19 October 2022 have not been appealed and the time for an appeal has well expired. I do not consider it appropriate for me to second guess the outcome of any prospective application under the slip rule that is yet to be heard by VCAT. I am obliged to deal with this application on the evidence before me.
I accept there is an apparent inconsistency between paragraph 11 of the reasons extracted above and the terms of order 5, but I do not consider it appropriate for me to go behind the Deputy President’s order which, in my view, brings into existence a clear liability for Roma RV to pay all the defendants collectively the sum of $136,300 by way of a refund of the purchase price of the caravan.
Roma RV contended in its submissions that there was no debt due and payable as VCAT made no order for a refund.[19] I do not accept that submission. When read in context, order 5 clearly orders that Roma RV pay the defendants the $136,300 by way of a refund. The order provides that the defendants ‘have only sought an order that the respondent refund to them the purchase price of the caravan…’. It appears this is a reference to the fact the defendants made no claim for damages and the relief they sought was in the nature of a refund.
[19]See [32(c)] of these reasons.
I consider order 5 of the VCAT Orders to be clear in its terms and creates an obligation that Roma RV pay the defendants collectively the sum of $136,300.
It might well be, as the defendants contend, that ultimately VCAT would make an order in their favour for the costs of the return of the caravan, but this is not the forum to decide that issue. Roma RV has not established that the issue of the costs of return of the caravan constitutes an offsetting claim or in some way can be fashioned into ‘some other reason why the demand should be set aside’. There is no quantification of the costs of such return or what basis it would be arguable that given the defendants were successful in VCAT, it would be arguable that the defendant should meet the cost of return of the caravan.
Roma RV’s application is dismissed with costs, including any reserved costs.
SCHEDULE OF PARTIES
| S ECI 2023 00510 | |
| BETWEEN: | |
| ROMA RV PTY LTD (ACN 144 025 016) | Plaintiff |
| - v - | |
| DAVID ROBERTS | First Defendant |
| MAUREEN ROBERTS | Second Defendant |
| TRAINING AUSTRALIA PTY LTD (ACN 125 733 744) ATF DMR TRUST (ABN 89 773 164 541) | Third Defendant |
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