Sceam Construction Pty Ltd v B. T. Windows Pty Ltd - [2018] VSC 769

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2018 00783

SCEAM CONSTRUCTION PTY LTD (ACN 141 136 816)	Plaintiff
v
B. T. WINDOWS PTY LTD (ACN 080 431 812)	Defendant

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JUDGE:	GARDINER AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2018
DATE OF JUDGMENT:	7 December 2018
CASE MAY BE CITED AS:	Sceam Construction Pty Ltd v B. T. Windows Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 769

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CORPORATIONS – Corporations Act 2001 (Cth), ss 459G – Application to set aside statutory demand by reason of alleged genuine dispute and offsetting claim in respect of the debt – Application to set aside statutory demand for some other reason under s 459J of the Corporations Act 2001 (Cth) – Plaintiff’s evidence in relation to alleged claims and disputes inconsistent with contemporaneously generated electronic communications and not plausible or genuine – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Greenway	SLF Lawyers
For the Defendant	Mr D Harrison	JBT Lawyers

HIS HONOUR:

The plaintiff, Sceam Construction Pty Ltd (ACN 141 136 816) (‘Sceam’), applies under ss 459G and 459J of the Corporations Act 2001 (Cth) (‘the Act’) by originating process filed 2 March 2018 to set aside a statutory demand served on it by the defendant, B. T. Windows Pty Ltd (ACN 080 431 816) (‘BT Windows’), on 12 February 2018.

The demand claims that Sceam owes BT Windows $146,352.00 (‘the debt’). The debt is described in the schedule to the demand as money due and payable by Sceam to BT Windows pursuant to invoices for the supply and installation of aluminium windows and doors in the period December 2016 to July 2017.

In or about November 2015, Sceam was engaged as the head contractor on a 9 town house development at Abbott Street, Sandringham (‘the site’).[1] The principal under that contract was 71 Abbott Street Pty Ltd (’71 Abbott Street’).
[1]Exhibit MA-6 to the second affidavit of Matthew Charles Allen.

Sceam put out a tender for the supply and installation of windows in or around May 2016 and BT Windows submitted a quote to Sceam in response to that tender.

The alleged debt relates to an amount claimed under the quotation submitted by BT Windows, dated 14 June 2016 (‘quote’), a written short form subcontract for BT Windows to supply and install all windows at the site in accordance with the quote dated 14 September 2016 (‘subcontract’), and a purchase order issued by Sceam to BT Windows dated 14 September 2016 confirming acceptance of the quote in the amount of $241,692.00 (‘purchase order’).[2] The subcontract also states the total subcontract price to be $241,692 inclusive of GST.
[2]The Quote, Subcontract and Purchase Order are each exhibited as JBT-1 to the first affidavit of Jonathon Bowers-Taylor sworn 20 March 2018.

Sceam relies on two affidavits of its director Matthew Charles Allen (‘Mr Allen’), affirmed 2 March 2018 and 12 April 2018. BT Windows relies on two affidavits of…

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: [2018] VSC 769
Decision Date: 7 December 2018

CaseChat Overview and Summary

The matter between Sceam Construction Pty Ltd and B. T. Windows Pty Ltd was before the Federal Circuit and Family Court of Australia, where the plaintiff sought to set aside a statutory demand issued by the defendant. The plaintiff alleged a genuine dispute regarding the debt claimed and sought to offset the amount claimed against other debts owed by the defendant. The defendant opposed the application, contending that the plaintiff's claims were not genuine and were inconsistent with contemporaneously generated electronic communications. The court was required to determine whether the plaintiff had a genuine dispute or if the statutory demand should be set aside for some other reason under section 459J of the Corporations Act 2001 (Cth).

The court examined the plaintiff's evidence and the contemporaneous electronic communications to assess the plausibility and genuineness of the claims made. It was found that the plaintiff's evidence was inconsistent with the electronic communications, which undermined the credibility of the plaintiff's case. The court held that the plaintiff's claims were not plausible or genuine, and therefore, the statutory demand could not be set aside. Furthermore, the court found that there were no other grounds under section 459J of the Corporations Act 2001 (Cth) that would justify setting aside the statutory demand.

The court dismissed the plaintiff's application to set aside the statutory demand. The defendant was granted its costs of the application on an indemnity basis. The dismissal of the application meant that the statutory demand remained in effect, and the defendant could proceed with its rights under the statutory demand.

Orders