Scolaro's Concrete Construction Pty Ltd v Schiavello Commercial Interiors (Vic) Pty Ltd
[1996] FCA 133
•8 Mar 1996
CATCHWORDS
CORPORATIONS - statutory demand - application under s. 459G(1) for an order setting aside a statutory demand - whether appellant discharged onus of establishing a genuine dispute about the debt - whether primary Judge erred in holding that the onus was not established.
Corporations Law: s. 459G(1).
SCOLARO'S CONCRETE CONSTRUCTION PTY LTD v SCHIAVELLO COMMERCIAL INTERIORS (VIC) PTY LTD
VG 852 of 1995
LOCKHART, SHEPPARD and SUNDBERG JJ.
8 MARCH 1996
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 852 of 1995
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:SCOLARO'S CONCRETE CONSTRUCTION PTY LTD
Appellant
AND:SCHIAVELLO COMMERCIAL INTERIORS (VIC) PTY LTD
Respondent
COURT: Lockhart, Sheppard and Sundberg JJ.
DATE: 8 March 1996
PLACE: Melbourne
MINUTE OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellant pay the respondent's costs of the appeal.
NOTE: Settlement and entry of orders is dealt with under Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 852 of 1995
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:SCOLARO'S CONCRETE CONSTRUCTION PTY LTD
Appellant
AND:SCHIAVELLO COMMERCIAL INTERIORS (VIC) PTY LTD
Respondent
COURT: Lockhart, Sheppard and Sundberg JJ.
DATE: 8 March 1996
PLACE: Melbourne
REASONS FOR JUDGMENT
LOCKHART J.
This is an appeal from the judgment of a judge of the Court (Olney J.) who dismissed with costs an application under s. 459G(1) of the Corporations Law by the appellant, Scolaro's Concrete Construction Pty Ltd, for an order setting aside a statutory demand. The demand is dated 28 April 1995 and required payment by the appellant of $36,352.50 in respect of a debt described in the demand as 'goods and services provided'.
The sole ground upon which the appellant sought to set aside the demand was that there was said to be a genuine dispute concerning the existence of the debt to which the demand relates.
All the evidence before the learned primary Judge was by affidavit and none of the deponents were cross-examined.
The demand relates to the construction of a building for the Department of Social Services in Werribee. The appellant claims that it is not indebted to the respondent and that any indebtedness to the respondent is that of De Pellegrin Pty Limited (now in liquidation) ('De Pellegrin'), trading under the name of Alert Constructions ('Alert'). The amount of the debt is not disputed. But since the appellant denies owing the respondent any money, a genuine dispute between the parties is said to exist.
In addition to denials contained in its affidavits, the appellant sought to rely on a number of invoices and statements sent by the respondent to Alert, care of the appellant, and a copy of the prime contract, between the city of Werribee and Alert, dated 25 May 1993, as evidence that the debt was owed by Alert to the respondent. The respondent does not deny that the prime contract was between those parties; but it claims under a subcontract which it says was made between itself and Alert or the appellant.
The primary Judge made two basic findings. First, his Honour found that the appellant's case was supported only by a denial of liability; and the appellant failed to tender any evidence in its affidavits in support of its assertions that: (a) it acted as foreman on the construction site; (b) it had worked as a subcontractor of De Pellegrin; and (c) it operated a bank cheque account in trust, with De Pellegrin. His Honour said that these assertions went to the heart of the appellant's claim that it was an employee, not a joint venturer, and the onus was plainly on the appellant to make them good.
The second important finding of his Honour was that the other evidence adduced by the appellant in support of its case was equivocal.
The evidence before his Honour which was led by the respondent included evidence of the following:
.During a meeting held on 18 January 1994 the appellant, jointly with Alert, entered into tender negotiations with the respondent to act as a subcontractor.
.A tender price was negotiated and submitted by the respondent for the fit-out of the premises and it was accepted by Mr Stephen De Pellegrin for De Pellegrin and Mr Scolaro for the appellant. A copy of a fax said to constitute the acceptance of the tender is in evidence. It is headed 'Alert Constructions ...'. At the foot of the fax there is a notation 'A Division of De Pellegrin Pty Limited (Inc. in Vic)'. The fax is addressed to the respondent for the attention of Mr 'Rob Spielman'. Mr Spielman is an employee of the respondent. The date is not readily discernible, but it appears to be '27/1/94'. The project is identified as 'Werribee DSS offices' and the fax, which is unsigned, states that its senders are 'Stephen De Pellegrin and George Scolaro'. The text of the message is:
'We have pleasure in accepting your tender of the 18/01/94 for alternate tender "B" and reserve the right to delete some joinery fittings.
Commencement: Immediately
Completion: Within 33 working days.'
.There is a fax on the appellant's printed cover sheet which was received by the respondent on 18 February 1994 and which is said to be from 'Scolaro Alert', and another fax on the appellant's cover sheet dated 8 March 1994, signed by Mr Scolaro and said to be from Alert.
.On 3 May 1994 Mr Spielman sent a fax on the respondent's printed cover sheet, addressed as follows:
'To: George Scolaro Company: Scolaro - Alert'.
.There is in evidence an unexecuted document described as 'Joint Venture Agreement', dated 12 August 1993, purporting to be between De Pellegrin and the appellant.
.Also in evidence is an unexecuted and undated deed of assignment in which the parties are expressed to be De Pellegrin as assignor, the appellant as assignee, and the City of Werribee. It recited, inter alia, that the assignor and assignee were parties to a joint venture agreement dated 12 August 1993.
.On 29 April 1994 Messrs Best Hooper, then and now solicitors for the appellant, sent a fax to the City of Werribee stating, inter alia, that the appellant and Alert had:
'... under a joint venture agreement made 12 August 1993, agreed with Alert Constructions to jointly carry out the works specified in the contract between the Council and Alert Constructions Pty Limited ...'
.There are two cheques, each in favour of the respondent, drawn on the banking account of the appellant with the Commonwealth Bank, Werribee branch: one is for $100,000 and is dated 27 April 1994, the other is for $121,933.50 and is dated 28 March 1994.
His Honour said that:
'Although some of the evidence in the affidavits initially sworn by the respondent's witnesses is inconsistent with their later evidence, the objective facts, such as they are, and the inferences open to be drawn from those facts, fail to satisfy me that there is a genuine dispute between the parties as to the existence of the debt. The applicant's [appellant's] case is supported only by a denial of liability. The other evidence it relies upon is equivocal. The totality of the evidence before the Court is insufficiently persuasive to cross the threshold from mere assertion to genuine dispute.'
The approach to be taken by courts on hearing applications to set aside statutory demands under the new regime of the Corporations Law has been considered in a number of cases. They state the tests in various ways; but the differences are in emphasis, rather than in principle. The cases include Scanhill Pty Limited v Century 21 Australasia Pty Limited (1993) 12 ACSR 341 at 348 and 350; Chadwick Industries (South Coast) Pty Limited v Condensing Vaporisers Pty Limited (1994) 13 ACSR 37 at 40; Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 787; John Holland Construction & Engineering Pty Limited v Kilpatrick Green Pty Limited (1994) 14 ACSR 250 at 253; and Rohalo Pharmaceutical Pty Limited v R P Scherer Sp.A. (1994) 15 ACSR 347 at 352. The Court must be satisfied that the dispute is not vexatious or frivolous, and may have some substance.
At certain points in the reasons for judgment of the primary Judge, he appears to make positive findings of fact on matters in issue. For instance, his Honour drew the inference that the relevant fit-out contract was entered into by the respondent and the joint venturers. This approach was criticized by counsel for the appellant on the basis that his Honour went beyond the stage of determining whether there was a genuine dispute about the debt, and proceeded to make positive and final findings of fact as if he were presiding at the trial. But the task in which his Honour was engaged appears from the following passage towards the commencement of his reasons for judgment:
'As all of the evidence before the Court has been adduced on affidavit and as none of the deponents was called for cross-examination, it is not possible to make any determination as to the credit of any individual witness or to resolve any conflict in the evidence except to the extent that facts which are undisputed are capable of sustaining relevant inferences.'
When his Honour's reasons for judgment are read as a whole I am of the opinion that his essential finding was that the appellant had not discharged the onus of establishing a genuine dispute about the debt. He was not conducting the matter before him as if it were a final hearing on the merits.
His Honour's findings were made on the documents before him. Plainly he was of the opinion that the key documents which he identified, being contemporaneous documents, supported the respondent's case and negated the appellant's case; and that they must be given great weight in assessing whether a genuine dispute exists.
In my opinion it has not been established that his Honour fell into any error of principle.
I would dismiss the appeal with costs.
I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of the Honourable Justice Lockhart.
Associate
Dated: 8 March 1996
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG 852 of 1995
GENERAL DIVISION )
ON APPEAL FROM A JUDGMENT OF A JUDGE OF THE FEDERAL
COURT OF AUSTRALIA
BETWEEN: SCOLARO'S CONCRETE CONSTRUCTION PTY. LTD.
Appellant
AND: SCHIAVELLO COMMERCIAL INTERIORS (VIC) PTY.
LTD (ACN 006 778 641)
Respondent
CORAM: LOCKHART, SHEPPARD AND SUNDBERG JJ
PLACE: MELBOURNE
DATE: 8 MARCH 1996
REASONS FOR JUDGMENT
SHEPPARD J: This appeal from a judgment of a judge of this Court (Olney J) raises questions of the construction and application of s.459G of the Corporations Law. The section provides:
"(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 21 days after the demand is so served.
(3)An application is made in accordance with this section only if, within those 21 days:
(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."
Reference needs also to be made to other sections in Division 3 of Part 5.4 of Chapter 5 of the Law and also to some of the provisions of Divisions 2 and 4 of that Part. Part 5.4 is headed "Winding Up in Insolvency". Section 459E provides for the service of a statutory demand on a company. A person may serve such a demand on a company, inter alia, if the demand relates to a single debt that the company owes to the person that is due and payable. The section also provides for the contents of the demand and requires the demand to be accompanied by an affidavit which must state certain matters to which the section refers. Section 459F provides that, if, at the end of the period for compliance with the statutory demand, the demand is still in effect and the company has not complied with it, the company is taken to fail to comply with the demand at the end of that period. The period for compliance is provided for. Section 459H makes provisions relating to the determination of an application where there is a dispute or offsetting claim. Sections 459J and 459K deal with the setting aside of a demand on grounds other than those provided for in s.459G.
Division 4 of Part 5.4 deals with applications for orders to wind up companies in insolvency. Section 459P provides for the persons who may make an application for a company to be wound up. These, of course, include creditors. Section 459Q deals with applications which rely on the failure of a company to comply with a statutory demand served under s.459G. Section 459R provides that an application for a company to be wound up in insolvency is to be determined within six months after it is made but that the Court may by order extend the period within which an application must be determined in the circumstances there specified. Section 459S is in the following terms:
"(1) In so far as an application for a company to be wound up in insolvency relies on a failure by the company to comply with a statutory demand, the company may not, without the leave of the Court, oppose the application on a ground:
(a)that the company relied on for the purposes of an application by it for the demand to be set aside; or
(b)that the company could have so relied on, but did not so rely on (whether it made such an application or not).
(2)The Court is not to grant leave under subsection (1) unless it is satisfied that the ground is material to proving that the company is solvent."
It is to be observed that, although the provisions of s.459S leave some room for the Court to exercise its discretion against the grant of a winding up order based on failure to comply with a statutory demand which has not been set aside, it is clear that the legislature intended the procedure provided for in s.459G and the sections which accompany it to provide the usual means by which a company may avoid the prima facie inference of insolvency which arises from the failure to comply with a statutory demand. In most cases, if the application under s.459G fails, there will be little that a company may do to overcome the prima facie effect of the operation of the section resulting from the
dismissal of the application to set aside the statutory demand. Usually the company will only be able to resist the making of a winding up order if it discharges an evidentiary onus of establishing its solvency. Unless it does so, it will be found to be insolvent. Obviously enough, the policy of the legislature was to bring about a situation in which a company owing money to creditors could not unduly delay matters by putting on colourable defences to liquidated claims in courts of ordinary jurisdiction. Unless the company demonstrated that there was a genuine dispute about the claim, the inevitable result would be a prima facie conclusion of insolvency if the amount of the demand were not paid. The public interest is served by these provisions because they tend to bring about a situation in which insolvent companies are either discouraged from or prevented from continuing to trade. In this way their ability to incur yet further debts is curtailed. This is to the benefit of the commercial community and, indeed, the community generally.
There is, of course, another side of the coin. For a long time now persons claiming money from companies anxious to recover their debts and to avoid the inevitable delays which occur in actions to recover debts in the ordinary courts have sought short cuts. For many years companies legislation both here and overseas has included provisions which enable creditors to serve on companies notices which, if not complied with, may result in there being prima facie evidence of insolvency. From time to time this procedure has been abused. The threat of winding up proceedings hovering over a company may seriously affect its commercial reputation particularly if the application goes as far as advertising. For that reason it was common for there to be applications to the Court for injunctions to restrain reliance on such notices and the publication of advertisements. Usually interlocutory relief was granted to enable the position to be held and the Court then made an investigation which, not unlike the investigation required by s.459G, went into the question of whether there was a genuine basis for the company's resistance to the claim. If there was not, the proceedings for an injunction were dismissed and the winding up proceedings went ahead. There was not the embargo then on a company seeking to resist a winding up order endeavouring to continue to show that there was either no indebtedness at all or that there was a serious dispute about it. That, so it seems to me, is the essential difference which the new provision has made.
The fact that the law has changed in this way does not mean that there is not likely to be the abuses which have always been part of the problem. The abuse which the Law was designed to overcome may have been reduced but it is still possible for persons with no real defence to a claim to make out a colourable case and persuade a judge that there is a genuine dispute. The end result, perhaps after about a year or more in a court of ordinary jurisdiction, may well be that the company does owe the debt and has succeeded in avoiding the inevitable consequence of winding up for that period to the detriment of other creditors and perhaps its own officers. But it is equally likely that the abuse which the legislation does not purport to affect will also occur in some cases. Persons claiming that companies owe them money may endeavour to take the short cut well knowing that there is a genuine dispute about a claim. Companies faced with this problem need to be astute to establish that there is a genuine dispute about the claim; otherwise there will be likely to be created the prima facie evidence of insolvency for which the various provisions provide.
Courts dealing with applications under s.459G need to be careful to see that their proceedings are not being abused by one party or the other. In some cases this will be difficult to do, especially when it is likely that the evidence which is led in relation to a particular matter will be sketchy and may not represent the whole of the evidence that one or other party will eventually have available, particularly after discovery, in a full hearing. Many judges adopt the practice of not allowing cross-examination in these applications. That course is understandable because of the demands which are being made on courts' time and resources. But in some cases where it occurs, the fact that there has not been cross-examination needs, in my respectful opinion, to be taken into account in determining whether an applicant under s.459G has established that there is a genuine dispute.
It must be remembered that the court is unlikely to be provided with any evidence concerning the overall solvency or insolvency of the company. It will be concerned only with the question whether there is a genuine dispute about a particular debt. It will not be able to make any assessment of the overall position on the application. That will only occur when an application for the winding up of a company, if one is made, is heard. If an application under s.459G has failed, a company which may be on the edge of solvency will be faced with the prima facie evidence of insolvency for which the Law provides. That may be difficult to overcome in a given situation and yet the position may be that the company is solvent and, if left alone, may have traded out of any particular difficulties in which it might then be in. Each case must depend upon its own circumstances. My only point in saying what I have is to emphasise the serious nature of the exercise which is involved in a case such as this simply because of the consequences one result or the other may have for a company and its creditors.
Against that background I come to the facts of the present case. His Honour's conclusion was expressed as follows:
"Although some of the evidence in the affidavits initially sworn by the respondent's witnesses is inconsistent with their later evidence, the objective facts, such as they are, and the inferences open to be drawn from those facts, fail to satisfy me that there is a genuine dispute between the parties as to the existence of the debt. The applicant's case is supported only by a denial of liability. The other evidence it relies upon is equivocal. The totality of the evidence before the Court is insufficiently persuasive to cross the threshold from mere assertion to genuine dispute."
The appellant correctly acknowledges that it cannot succeed unless it demonstrates error on the part of the primary judge. The submission makes it necessary to review in a little detail the evidence which was led before his Honour.
The statutory demand served on the appellant said that it owed the respondent the amount of $36,352.50 being the amount of the debt described in the schedule. The schedule says that the amount is due for, "Goods and services provided". Attached to the demand was an affidavit of Mr Schiavello which is in the form required by s.459E of the Law. The affidavit merely says that to Mr Schiavello's knowledge, the amount of $36,352.50 is due and payable by the appellant and that the amount of the debt relates to goods and services provided by the respondent at the request of the appellant between March 1994 and April 1994.
On 18 May 1995, Mr Orazio Scolaro swore an affidavit which was filed on behalf of the appellant. He said that the appellant was the trustee of the Scolaro's Concrete Construction Unit Trust. Mr Scolaro said that he believed that the debts referred to in the statutory demand related to goods and services provided by the respondent in respect of the construction of a building for the Department of Social Security in Werribee. Exhibited to his affidavit was a bundle of invoices and statements from the respondent to an organisation described as Alert Constructions. Mr Scolaro said that he believed that Alert Constructions referred to in the invoices and statements was a business name belonging to a company known as De Pellegrin Pty Ltd. Mr Scolaro said that he believed that that company contracted with the City of Werribee for the construction of the building. Exhibited to the affidavit was a copy of what Mr Scolaro said he believed to be a copy of the building contract. The appellant was not a party to it. He said that he believed that a receiver and manager, and also a liquidator, had been appointed in respect of the De Pellegrin company. Mr Scolaro said that the appellant had not entered into any agreement with the respondent for the supply by it to the appellant of the goods and services referred to in the demand. He continued, "If those goods and services were supplied then I believe that they were supplied by the Respondent to De Pellegrin for the purposes of the building contract." Mr Scolaro also said that the appellant had no agreement with the respondent that it would pay to the respondent any moneys due to the respondent by De Pellegrin in respect of any goods and services supplied for the purposes of the building contract.
The invoices and statements referred to in the affidavit are, as Mr Scolaro said, addressed to Alert Constructions but after the name "Alert Constructions" there appear the words, "C/- Scolaros Concrete Const / 4 Aurora C Werribee 3030." The first of these accounts is dated 30 April 1994 and is for the amount claimed in the statutory demand. The amount is apparently made up of two invoices similarly addressed, one dated 29 April 1994 for $29,895.35 and the other also dated 29 April 1994 for $6,457.15.
The latter invoice was not annexed to Mr Scolaro's affidavit but to the affidavit of Mr Grbin sworn on 31 May 1995. Mr Grbin is an employee of the respondent. He said that he had read Mr Scolaro's affidavit of 18 May. He said that he approached Mr Scolaro, who was also known as George Scolaro, on the site of the building on or about 21 March 1994 and told him that the respondent was about to withdraw its labour and materials. He said that Mr Scolaro assured him that the project was going to be completed under his control and that all the work "would be paid for by his Company, the Applicant [i.e. the appellant]". Mr Grbin also said, "George Scolaro then proceeded to instruct the Respondent with respect to all site work and variations."
Mr Grbin said that Mr Scolaro attended a meeting in South Melbourne on 13 April 1994 in which variations costing $8,500 were discussed "which ultimately was resolved that each party pay $4,250 each." On or about 27 April 1994, Mr Scolaro telephoned Mr Grbin and asked him for "the next progress invoice not to be sent to Alert Constructions but to be addressed and sent to the appellant if the respondent wanted to be paid". Although the invoice is expressed to be
exhibited to the affidavit, no copy of it appears in the appeal book.
Mr Grbin also said that in the telephone conversation which occurred on 27 April 1994, Mr Scolaro told him to come and pick up the cheque from the appellant at Werribee. He said he did so. Exhibited to his affidavit is a cheque which is said to be a true copy of a cheque for $100,000 which he collected from Werribee on 27 April 1994. The cheque appears to have been signed by Mr Scolaro. It was drawn on an account with the Werribee branch of the Commonwealth Bank in the name of Scolaros Concrete Constructions. Mr Grbin said that on numerous occasions when he telephoned Mr Scolaro, he assured him that the final invoices would be paid in full. Copies of the invoices are exhibited to the affidavit. These comprise the two invoices to which I have earlier referred which make up the total of the amount of the statutory demand.
Mr Robert Spielman is an employee of the respondent. He swore an affidavit on 31 May 1995. He said that the fitout agreement referred to in Mr Scolaro's affidavit was initially negotiated between Alert Constructions and the respondent. However, by early 1994, "the Applicant [i.e. the appellant] took over full control of the fitout agreement." He said that the respondent was about to withdraw its labour and materials from the site when Mr Grbin told him that Mr Scolaro was taking over the fitout contract and would pay an invoice for $121,933.80. Exhibited to Mr Spielman's affidavit is a copy of a cheque said to be from the appellant for this sum. Again the cheque is drawn on the Scolaro account and appears to have been signed by Mr Scolaro.
Mr Spielman said that a meeting was held in South Melbourne on or about 13 April 1995 - he meant 1994 - which was attended by Mr Grbin, Mr Scolaro and himself along with some other persons. He said that the meeting discussed certain variations to the fitout works. Confirmation of the tentative agreement reached as to the costs of the variations was received by the respondent by facsimile. The facsimile is exhibited to the affidavit. It is on the appellant's letterhead. It is dated 14 April 1994. It is signed, although I cannot decipher the signature, and its opening words are, "Please supply and place...". The facsimile, although on the appellant's letterhead, is said to be from "Alert Scolaro".
On 23 June 1995, Mr Scolaro swore a further affidavit. He said that he had read the affidavit sworn by Mr Grbin and Mr Spielman. He said that he denied that the fitout agreement relating to the building at Werribee was taken over "in any way" by the appellant. He said that neither he nor any of the other directors of the appellant had at any time been a director of De Pellegrin. In para. 6 of his affidavit he said that he denied that the appellant ever took over the fitout contract. He continued:
"The directors of De Pellegrin shortly after the commencement of the contract approached me to act as the site foreman, principally, I believe, because:
(a)The Applicant was a sub-contractor to De Pellegrin for a considerable part of the construction works.
(b)As I lived in Werribee and was well known to the officers of the former City of Werribee ("the Principal") this would facilitate the progress of the contract.
(c)I accepted this role and a bank account was opened at the Werribee branch of the Commonwealth Bank into which monies received by De Pellegrin from the Principal under the contract were to be paid into and out of which all sub-contractors and employees of De Pellegrin were to be paid. The Commonwealth Bank is the Applicant's banker and because of that association, the Commonwealth agreed to provide the banking facility ("the Commonwealth Bank account") in the name of the Applicant but in trust for De Pellegrin and the trust of which the Applicant is the trustee. Myself and one of the directors of De Pellegrin were joint signatories to that account."
Mr Scolaro said that it was his "role" as site foreman to organise all works associated with the construction of the building and also his responsibility to attend meetings with relevant sub-contractors for the purposes of the contract. He referred to the cheque given Mr Grbin for the $100,000 and said that "it was my responsibility to organise payment of sub-contractors out of the Commonwealth Bank account on behalf of De Pellegrin". He said that the extent of his control over the contract was as site foreman and that he had never said to Mr Grbin that the appellant would pay the respondent for any work performed by it in respect of the building. He said that it was his responsibility as site foreman to issue site work instructions and variations where appropriate. In relation to
the cheque referred to in Mr Spielman's affidavit, Mr Scolaro said, "...the cheque was written on the Commonwealth Bank account."
Paragraph 15 of Mr Scolaro's affidavit is as follows:
"As to the matters alleged in paragraph 8 I say that I have told the Applicant [sic] that I have been endeavouring to obtain from the Principal monies due to sub-contractors. I deny that I ever said that in default of the Principal making such payments that the Applicant would make them."
Mr Grbin swore a further affidavit on 10 July 1995. He referred to Mr Scolaro's affidavit of 23 June 1995 and to an aspect of Mr Scolaro's earlier affidavit. He said that a final inspection of the work was done on 2 May 1994 by Mr Caversan, the appellant's foreman, who sent a "confirming facsimile" to the respondent. The facsimile is on the letterhead of the appellant. It is from Mr Caversan referred to in the facsimile as "Fab", his christian name being Fabio. The facsimile is a report on matters that needed attention.
There are some other documents exhibited to Mr Grbin's affidavit which I do not find it necessary to refer to except in one respect which I shall mention later. However, in para. 9 of his affidavit, Mr Grbin said that on many occasions "both in person and via telephone George Scolaro told me that the appellant 'had put its money into the project and that as a partner the respondent would be paid.'". He also said that at approximately 7.45 a.m. on 5 May 1995 Mr Scolaro rang him and
requested his assistance to go to the Werribee Council and help him collect "the Applicant's [i.e. appellant's] money." Mr Grbin said that he informed Mr Scolaro that he was unavailable and that the scheduled meeting for that morning with Werribee Council should be delayed until he was. He heard nothing more about the matter.
There is a further affidavit by Mr Spielman sworn on 10 July 1995. In it Mr Spielman said that a tender price was negotiated and submitted by the respondent which was accepted by Mr De Pellegrin for De Pellegrin Pty Ltd which was also known as Alert Construction, and Mr Scolaro for the appellant on 27 January 1994. Mr Spielman referred to this as the fitout agreement. He said that the fitout agreement was made by the respondent, Alert Construction and the appellant. Exhibited to his affidavit is what he describes as a copy of the acceptance of the tender by facsimile. The facsimile is dated, I think, 27 January 1994 although the date itself is somewhat obscure. It is addressed to the respondent for the attention of Mr Spielman and refers to the Werribee building. The facsimile is said to be from "Stephen Pellegrin & George Scolaro". The facsimile says that "we have pleasure in accepting your tender" of 18 January 1994 for a particular tender which is specified. The right to delete some part of the work is reserved.
Mr Spielman said that the full running of the fitout agreement was directed and administered by Mr Scolaro for the appellant "with a nominal representation of Alert Construction."
In para. 6 of his affidavit Mr Spielman said that there was a meeting on 18 June 1994 between Mr Scolaro, Mr Pellegrin and Mr Spielman. He said that during the course of the meeting it was apparent that the appellant was controlling the project. He said that there were further discussions in relation to the fitout agreement about certain variations. Directions were given at site meetings by Mr Scolaro and confirmed by facsimile. An example of such a facsimile is exhibited to the affidavit. It is dated 18 February 1994. It is on the letterhead of the appellant. It is said to be from "Scolaro Alert". There is a similar facsimile dated 8 March 1994 but this time, although it is on the appellant's letterhead, it is said to be from "Alert".
It remains to mention an affidavit of a solicitor, Mr Calvi, sworn on 18 October 1995. He swore the affidavit on behalf of the respondent. He said that he inspected certain documents relating to the "Liquidation" of De Pellegrin and discovered that there was an unexecuted joint venture agreement dated 12 August 1994 between De Pellegrin and the appellant for the Werribee building which, he said, was consistent with the respondent's assertions. A copy of the joint venture agreement is exhibited to the affidavit.
The agreement if made would have been an agreement made between Alert Constructions and the appellant. It was recited that Alert had entered into a contract with the City of Werribee to construct the building earlier referred to and that Alert and the appellant intended jointly to carry out the work specified in that contract. It was provided that, notwithstanding that Alert was responsible to the City of Werribee under the head contract, Alert and the appellant agreed that risks and liabilities pertaining to the head contract were to be shared equally between them. There were then provisions relating to profits and losses, accounts and so on.
Mr Calvi also referred to an unexecuted deed which was to have been made between De Pellegrin, the appellant and the Werribee Council. The appellant was described as "the assignee". The agreement provided that, in consideration of the assignee assuming all existing and future liability and responsibilities under the contract to all parties who were entitled to claim in any way either under the contract or under the joint venture, De Pellegrin assigned to the appellant all of its right, title and interest under the contract. Amongst other provisions there was a covenant by the appellant with De Pellegrin to perform the provisions of the contract binding upon De Pellegrin with effect from the date the deed was to be executed.
The final document referred to by Mr Calvi in his affidavit was a facsimile from a firm of solicitors to the City of Werribee dated 29 April 1994. The solicitors apparently acted for the appellant. The facsimile referred to the contract for the building. The substance of the facsimile was as follows:
"We refer to our telephone conversation with you this morning and confirm that we act on behalf of Scolaro Concrete Constructions Pty. Ltd.
As you may be aware, our client, under a joint venture agreement made 12th August 1993, agreed with Alert Constructions to jointly carry out the works specified in the contract between the council and Alert Constructions Pty. Ltd.
Alert Constructions wishes to withdraw from the joint venture agreement and to assign the contract to our client.
We have enclosed proposed Deed of Assignment and we seek the Council's consent in writing to the assignment.
If you require any further information, please let us know."
I have now referred to the totality of the evidence which was before his Honour. In his judgment his Honour analysed that evidence. It is necessary to refer to some of the remarks he made in the course of that exercise.
In relation to the unexecuted joint venture agreement and deed of assignment his Honour said that, although the mere production of copies of the unexecuted joint venture agreement and the unexecuted assignment of contract did not constitute evidence of a joint venture between the appellant and De
Pellegrin or of an assignment of De Pellegrin's interest in the contract to the appellant, the facsimile dated 29 April 1994 sent by the solicitor to the City of Werribee did provide evidence of a joint venture agreement between the appellant and De Pellegrin entered into on 12 August 1993 and also evidence that the joint venture still subsisted at least until 29 April 1994. His Honour said that the appellant had not sought to contradict or qualify the very clear terms of the facsimile. In the circumstances he drew the inference that as from 12 August 1993 until at least 29 April 1994 the appellant and De Pellegrin carried out the building contract as joint venturers. The evidence provided by the invoices put in evidence by both parties established that on 29 April 1994 the respondent debited the two sums making up the amount of the statutory demand to the appellant.
His Honour also referred to the facsimile of 27 January 1994 in which the respondent's tender for the fitout was sent out at the time "when the appellant and De Pellegrin regarded themselves as joint venturers in the project." As his Honour pointed out, the acceptance is expressed in the plural. His Honour said, "I draw the inference that the fitout contract was entered into between the respondent and the joint venturers. The apparent indiscriminate use of the stationery of both of the applicants and De Pellegrin is consistent with those companies being joint venturers and consistent with the respondent dealing with them as such." His Honour continued:
"Neither party has sought to put in evidence, or to explain the absence of, the tender document which was the basis of the acceptance notified to the respondent on 27 January 1994. If the tender had been addressed to Alert Constructions it might be expected that the mere production of the document would have assisted the applicant's case. The failure to produce, or to explain the non-production of the document, suggests that the document, if produced, would not have assisted the applicant's case. The same may well be said of the respondent's failure to produce the tender document, but it is the applicant and not the respondent who seeks to satisfy the Court that there is a genuine dispute as to the existence of the debt."
At the outset it must be stressed that the borderline between deciding a case on a final basis and the determination of the question whether there is a genuine dispute concerning a claim which one party asserts against another may be difficult to identify. In analysing evidence of the kind which there is in this case one has to avoid the danger that one may treat the exercise as one involving the final determination of the rights and obligations of the parties in relation to the claim. That is not the exercise upon which the Court is embarked. In the present case, except in one minor respect, there was no objection to any of the statements made in any of the affidavits and no cross-examination. Counsel for the appellant stressed the nature of the exercise on which we were embarked and also cautioned us against following his Honour's course of endeavouring to draw inferences from the overall facts and circumstances of the case and from the documents without there having been an adequate investigation of the oral evidence or, indeed, the leading of evidence in an admissible form.
I think there is force in these submissions. In relation to the unexecuted documents and the solicitor's letter, counsel for the appellant said that the documents, not having been executed, proved nothing nor was it to be inferred from the terms of the solicitor's letter to the Werribee Council that there necessarily existed a joint venture agreement. Furthermore, assuming there were some evidence of such an agreement, there was the question of what the terms of it were - it is unlikely that they would have been the same as the terms of the unexecuted joint venture agreement. For example, they might not have made the appellant liable as a principal for amounts incurred by Alert. In a final hearing, his Honour's comment relating to the failure of the appellant to explain the documents referred to by Mr Calvi may have carried great weight. But to me they do not have nearly the same significance in an exercise such as this. Indeed, in the absence of a full hearing - and this was certainly not a full hearing - it would be dangerous in my respectful opinion to place weight on them or upon the failure of the appellant to give evidence in relation to them.
Nevertheless, it seems to me that what is significant in the evidence is the facsimile of 27 January 1994. It is clear and specific. It is on Alert's letterhead but it is from both Mr De Pellegrin and Mr Scollaro. It is addressed to the appellant and it says, "We have pleasure in accepting your tender of the 18/01/94 for alternate Tender "B" and reserve the right to delete some joinery fittings." On the face of that document the parties are accepting a tender jointly. Each on the face of the document is jointly liable to pay for the work which has been ordered.
Mr Scolaro's explanation for the document is to be found only in Mr Scolaro's affidavit of 23 June 1995 which was sworn before Mr Spielman's affidavit of 10 July 1995 to which the facsimile of 27 January 1994 was exhibited. Mr Scolaro did not deal specifically with the document. Nevertheless, counsel relied on para. 6 of Mr Scolaro's affidavit sworn on 23 June. It will be recalled that in that paragraph Mr Scolaro said that the appellant was a subcontractor to De Pellegrin for a considerable part of the construction work. A bank account was opened at the Werribee branch of the Commonwealth Bank into which moneys received by De Pellegrin from the Council under the contract were to be paid and out of which all sub-contractors and employees of De Pellegrin were to be paid. He said that the Commonwealth Bank was the appellant's banker and, because of that association, the Commonwealth Bank agreed to provide the banking facility in the name of the appellant but in trust for De Pellegrin and the trust of which the appellant is the trustee. He said that he and one of the directors of De Pellegrin were joint signatories to the account. Counsel sought to explain the facsimile of 27 January 1994 on the basis of this evidence and also evidence in para. 7 of the same affidavit in which Mr Scolaro said that it was his role as site foreman to organise all works associated with the construction of the building and it was his responsibility to attend meetings with relevant sub-contractors for the purpose of the contract. He made further statements insisting that his role was only that of site foreman and that it was his responsibility to organise the payment of sub-contractors out of moneys in the Commonwealth Bank account.
Counsel for the respondent said - and this is a submission which his Honour appears to have accepted - that many of the statements, if not all the statements, made in Mr Scolaro's affidavits were mere assertions and not accounts of the evidence upon which those assertions were based. I do not think that this criticism is entirely justified but there is a degree of truth at least in relation to some of the statements in the affidavit.
In my opinion it may be conceded that the evidence given in para. 6 of Mr Scolaro's second affidavit explains the cheques which were drawn on his company's account but I have the gravest difficulty in understanding how he overcomes the significance of the facsimile of 27 January 1994. This is a document which is critical. It is true that it did not come to light until late in the piece but, not overlooking the nature of the exercise upon which the Court is embarked, I do think that it required some specific explanation by Mr Scolaro. The fact that no such explanation emerged during the evidence is I think significant. Although the nature of this exercise is to determine whether there is a genuine dispute, the document is so central to the whole case that a failure to deal with it by Mr Scolaro is I think a matter which persuades me that there really could not be said to be any genuine dispute about the debt which is claimed.
Counsel for the appellant stressed the fact that the claim had arisen out of a building contract and that it was especially dangerous to take the view that there was no genuine dispute about an aspect of the dealings of parties engaged in a building contract. But Mr Scolaro does not suggest that this is the problem. That is not his evidence. The whole of his evidence is directed to the question whether the debt was De Pellegrin's debt or the joint debt of De Pellegrin and the appellant. That is the issue which he tendered for resolution and the enquiry which needed to be made was in relation to that issue and that issue alone.
I have perhaps examined the evidence in this case in too much detail but it did seem to me that there was a real question concerning his Honour's entitlement to take the view he did about the unexecuted documents and the facsilime to the council from the solicitor. What I think worries judges in these cases is that there is sometimes a temptation to take a superficial view of the evidence without seeing or hearing either of the principal participants in the witness box. Experience teaches that not infrequently what is unlikely before witnesses are called becomes the probable after the evidence is complete. An exercise such as this calls for a degree of caution. Otherwise there is a substantial risk of injustice.
Having reflected on the matter, however, I have reached the clear conclusion that the appellant has failed to establish that there is a genuine dispute about the debt. My conclusion in that respect rests largely upon the facsimile of 27 January 1994 set in the context of the other documents in the case. In the result I do not consider that error is disclosed in his Honour's conclusion with the consequence that the appeal should be dismissed with costs.
I certify that this and the twenty-four (24) preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Sheppard.
Associate
Dated
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No VG 852 of 1995
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:SCOLARO'S CONCRETE CONSTRUCTION PTY LTD
Appellant
AND:SCHIAVELLO COMMERCIAL INTERIORS (VIC) PTY LTD
Respondent
COURT:Lockhart, Sheppard and Sundberg JJ.
DATE:8 March 1996
PLACE:Melbourne
REASONS FOR JUDGMENT
SUNDBERG J:
The respondent served on the appellant a statutory demand under s.459E of the Corporations Law. The demand was dated 28 April 1995 and required the appellant to pay the respondent $36,352 for "goods and services provided". The appellant applied under s.459G to set the demand aside on the ground that there was a "genuine dispute" between the parties about the existence of the debt the subject of the demand. See s.459H(1)(a). Olney J. dismissed the application, and the appeal is against that order.
The evidence before the primary judge was in affidavit form. The deponents were not cross-examined.
In the affidavit filed together with the application Orazio Scolaro (who is also known as George Scolaro), a director of the appellant, expressed his belief that the demand related to goods and services provided by the respondent in respect of the construction of a building for the Department of Social Services at Werribee. He exhibited a bundle of statements and invoices from the respondent addressed to Alert Constructions for the amount claimed in the demand. He said that Alert Constructions was a business name used by De Pellegrin Pty Ltd the ACN of which is 004 479 163. The statements and invoices were all addressed to "Alert Constructions C/- Scolaros Concrete Const".
Scolaro believed that De Pellegrin Pty Ltd had contracted with the City of Werribee to construct the building, and he exhibited a copy of a building contract dated 25 May 1993 made between the City of Werribee and "Alert Constructions Pty Ltd ACN 004 479 163". Although the contractor was described as "Alert Constructions Pty Ltd (ACN 004 479 163)", the contract was executed by the affixing of the common seal of De Pellegrin Pty Ltd. Scolaro said the appellant was not a party to the building contract, that it had not entered into any agreement with the respondent for the supply of the goods and services referred to in the demand, and that if those goods and services were supplied, they were supplied by the respondent to De Pellegrin Pty Ltd for the purposes of the building contract. Furthermore, the appellant had not agreed to pay the respondent any money due to it by De Pellegrin Pty Ltd in respect of any goods and services supplied for the purposes of that contract.
In opposition to the application the respondent relied on affidavits sworn by Robert Spielman and Bob Grbin.
Spielman was an employee of the respondent. He said the demand referred to goods and services provided by the respondent in respect to the fitout, and not the construction, of the
building. He said the fitout agreement was initially negotiated between Alert Constructions and the respondent, and that in early 1994 the appellant "took over full control" of the agreement. The respondent's invoice No. 22101 dated 21 March 1994 for $121,933.50 was paid by a cheque dated 28 March 1994 drawn on the account of "Scolaros Concrete Constructions" at the Commonwealth Bank at Werribee. On 14 April 1994 the respondent received a fax concerning a contract variation agreed to at a meeting Spielman attended with Grbin and Scolaro on the previous day. The fax was on a printed coversheet in the name of "Scolaro's Concrete Construction Pty Ltd" and was expressed to be from "Alert Scolaro". It was signed by Scolaro. On 29 April 1994 the respondent raised invoice No. 22136 for the sum of $100,000 which was addressed to "Alert Constructions, C/- Scolaros Concrete Const". This invoice was paid by a cheque dated 27 April 1994 also drawn on the account of "Scolaros Concrete Constructions".
Grbin was a site supervisor employed by the respondent. He said he approached Scolaro at the building site on about 21 March 1994 and told him the respondent was about to withdraw its labour and material. Scolaro replied that the project would be completed under his control, and that all work would be paid for by his company, the appellant. Scolaro then proceeded to instruct the respondent with respect to all site work and variations. On about 27 April 1994 Scolaro telephoned Spielman and asked that the next progress invoice be sent to the appellant and not to Alert Constructions. Spielman produced invoice No. 22136 for $100,000. In the same telephone conversation Scolaro told Grbin to pick up the cheque from the appellant at Werribee, which he did. This is the cheque for $100,000 previously referred to.
In an affidavit in response Scolaro said that the fitout agreement was part of the construction of the building, and denied that the appellant had taken over any fitout agreement. However, shortly after the commencement of the contract the directors of De Pellegrin Pty
Ltd approached him to act as site foreman. He accepted that role and opened an account at his own bank in the name of the appellant but in trust for De Pellegrin Pty Ltd. Money received by De Pellegrin Pty Ltd from the City of Werribee was to be deposited in the account, and subcontractors and employees of De Pellegrin Pty Ltd were to be paid out of it. He denied having told Grbin the appellant would pay the respondent for any work performed by it in respect of the building.
Scolaro's second affidavit drew responses from Spielman and Grbin.
Spielman said that a tender price for the fitout was negotiated and submitted by the respondent, and was accepted by Stephen De Pellegrin for De Pellegrin Pty Ltd and Scolaro for the appellant by a fax dated 27 January 1994 marked for the attention of Rob Spielman. The fax is on a printed coversheet headed "Alert Constructions ACN 004 479 163". At the foot there is the notation "A Division of De Pellegrin Pty Ltd (Inc. in Vic)". The project is identified as "Werribee DSS Offices" and the fax is said to be from "Stephen De Pellegrin & George Scolaro". The text of the unsigned message was - "We have pleasure in accepting your tender of the 18/01/94 for alternate Tender 'B' and reserve the right to delete some joinery fittings".
Spielman also produced a fax dated 18 February 1994 on the appellant's cover sheet said to be from "Scolaro Alert", and another dated 8 March 1994 on the appellant's coversheet signed by Scolaro and said to be from "Alert". On 3 May 1994 Spielman sent a fax on the respondent's printed coversheet addressed to George Scolaro of "Scolaro/Alert".
In his second affidavit Grbin disputed the assertion that Scolaro was site foreman, and said that that position was held by Fabio Caversan. Following the final inspection of the building on 2 May 1994, in which Caversan participated, Grbin received a fax on the appellant's
printed coversheet identifying items to be attended to. The fax purports to be from "Fab" and is signed "Fab". "Fab" presumably refers to Fabio Caversan.
The respondent's corporate solicitor Anthony Calvi swore an affidavit to which were exhibited three documents. The first was an unexecuted "Joint Venture Agreement" dated 12 August 1993 between De Pellegrin Pty Ltd and the appellant. This purported to be an agreement between them jointly to carry out the works specified in the building contract. The second was an unexecuted and undated deed of assignment between De Pellegrin Pty Ltd as assignor, the appellant as assignee and the City of Werribee. It recited the making of the building contract, that the assignor and assignee were parties to a joint venture agreement dated 12 August 1993 under which they agreed jointly to carry out the project, and that the assignor wished to withdraw from the joint venture and assign its rights under the contract to the assignee.
The third document was a copy of a fax dated 29 April 1994 sent to the City of Werribee by the appellant's solicitors, Messrs Best Hooper, which reads as follows:
Re: Contract - Office Accommodation corner Duncan Road and Synnot Street, Werribee
We refer to our telephone conversation with you this morning and confirm that we act on behalf of Scolaro Concrete Constructions Pty Ltd.
As you may be aware, our client, under a joint venture agreement made 12th August 1993, agreed with Alert Constructions to jointly carry out the works specified in the contract between the Council and Alert Constructions Pty Ltd.
Alert Constructions wishes to withdraw from the joint venture agreement and to assign the contract to our client.
We have enclosed proposed Deed of Assignment and we seek the Council's consent in writing to the assignment.
The appellant did not seek to contradict or qualify the very clear terms of this fax, and in the circumstances the primary judge inferred that as from 12 August 1993 until at least 29 April 1994 the appellant and De Pellegrin Pty Ltd carried out the building contract as joint venturers. The invoices put in evidence by both parties established that on 29 April 1994 the respondent debited the sum of $29,895.35 (invoice No. 22137) and $6,457.15 (invoice No. 22138). The total of these sums is the amount of the debt claimed in the demand. This sum was originally debited during the subsistence of the joint venture.
The fax of 27 January 1994 accepting the respondent's tender for the fitout was sent at a time when the appellant and De Pellegrin Pty Ltd regarded themselves as joint venturers. The acceptance is expressed in the plural. The judge inferred that the fitout contract was entered into between the respondent and the joint venturers.
Olney J. concluded his judgment by saying that in the light of the objective facts and the inferences he drew he was not satisfied that there was a genuine dispute between the parties as to the existence of the debt. He said that the totality of the evidence put forward by the appellant did not serve to cross the threshold from mere assertion to genuine dispute.
The approach to be adopted in determining applications under s.459H(1)(a) has been expressed in different ways by different judges. The present appeal is not one which requires a general review of the various formulations. It is sufficient to refer to the observations of McLelland C.J. in Eq. in Eyota Pty. Ltd. v. Hanave Pty. Ltd. (1994) 12 A.C.S.R. 785, at p.787. His Honour said:
It is, however, necessary to consider the meaning of the expression "genuine dispute" where it occurs in s.450H. In my opinion that expression connotes a plausible contention requiring investigation, and raises much the same sort of considerations as the "serious question to be tried" criterion which arises on an application for an interlocutory injunction or for the extension or removal of a caveat. This does not mean that the court must accept uncritically as giving rise to a genuine dispute, 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" not having "sufficient prima facie plausibility to merit further investigation as to [its] truth" (cf Eng Mee Yong v Letchumanan [1980] AC 331 at 341), or "a patently feeble legal argument or an assertion of facts unsupported by evidence": cf South Australia v Wall (1980) 24 SASR 189 at 194.
But it does mean that, except in such an extreme case, a court required to determine whether there is a genuine dispute should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on as giving rise to the dispute. There is a clear difference between, on the one hand, determining whether there is a genuine dispute and, on the other hand, determining the merits of, or resolving, such a dispute.
The fax from the appellant's solicitors to the City of Werribee asserted the currency of a joint venture agreement made between the appellant and Alert Constructions on 12 August 1993. As I have said, the appellant did not by evidence or otherwise seek to explain away or qualify the clear terms of the document. Nor did counsel attempt to deal with it on the hearing of the appeal. The fax of 27 January 1994 from Stephen De Pellegrin and George Scolaro to the respondent, accepting its tender, was sent at a time when the appellant and De Pellegrin Pty Ltd regarded themselves as joint venturers. The primary judge was entitled to conclude, as he did, that the fitout contract was entered into between the respondent and the joint venturers. Further, after the conversation of 21 March 1994 deposed to by Grbin, in which he claims that George Scolaro said the project was to be completed under his control and that the work would be paid for by the appellant, the respondent sent an invoice for $100,000 to Alert Constructions C/- "Scolaros Concrete Const", which the appellant paid. An earlier invoice dated 21 March 1994 for $121,933.50, the date on which Scolaro is alleged to have said the appellant would pay for the work, was paid by the appellant though it was addressed to Alert Constructions, with no mention of the appellant. The appellant's claim that at all material times it was the employee of De Pellegrin Pty Ltd trading as Alert Constructions, and that the debt claimed is not owed by it but by Alert Constructions is, to
use the language of the Chief Judge in Equity, "inconsistent with undisputed contemporary documents", namely the De Pellegrin/Scolaro fax of 27 January 1994 and the solicitors' fax of 29 April 1994.
I do not accept the appellant's submission that the primary judge went beyond deciding whether there was a genuine dispute between the parties and determined the merits of the case. Although his Honour did not refer to Eyota Pty Ltd v. Hanave Pty Ltd, it is clear that he regarded the appellant's claim of a genuine dispute to be inconsistent with the contemporaneous documents to which I have referred.
The appellant has not satisfied me that the learned judge erred in holding that the appellant's material did not establish a genuine dispute. The appeal should be dismissed.
I certify that this and the preceding 7 pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg
........ ........ ........ ........ ........ ........ .
Associate
8 March1996
Counsel for the Appellant: S R Horgan
Solicitors for the Appellant: Best Hooper
Counsel for the Respondent: R T Burns
Solicitor for the Respondent: Mr A Calvi
Date of Hearing: 5 March 1996
Place of Hearing: Melbourne
Date of Judgment: 8 March 1996
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