Scolaro's Concrete Construction Pty Ltd v Schiavello Commercial Interiors (Vic) Pty Ltd
[1995] FCA 861
•27 Oct 1995
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION VG No 3260 of 1995
IN THE MATTER OF SCOLARO'S CONCRETE CONSTRUCTION PTY LTD
SCOLARO'S CONCRETE CONSTRUCTION PTY LTD
Applicant
-and-
SCHIAVELLO COMMERCIAL INTERIORS (VIC) PTY LTD
Respondent
Coram: Olney J
Place: Melbourne
Date: 27 October 1995
MINUTE OF ORDER
THE COURT ORDERS THAT the application be dismissed with costs.
NOTE:Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION VG No 3260 of 1995
IN THE MATTER OF SCOLARO'S CONCRETE CONSTRUCTION PTY LTD
SCOLARO'S CONCRETE CONSTRUCTION PTY LTD
Applicant
-and-
SCHIAVELLO COMMERCIAL INTERIORS (VIC) PTY LTD
Respondent
Coram: Olney J
Place: Melbourne
Date: 27 October 1995
REASONS FOR JUDGMENT
The applicant has made application under s 459G(1) of the Corporations Law for an order setting aside a statutory demand dated 28 April 1995 (the demand) served on the applicant by the respondent. The demand required the payment of $36,352.50 in respect of a debt described in the demand as "Goods and services provided". It is common cause that the application was made within the time limited by s 459G(2). No technical issues have been raised. The ground upon which the order is sought is that there is (as the applicant says) a genuine dispute as to the existence of the debt to which the demand relates.
I propose to first canvass those aspects of the evidence that appear to me to be most relevant to the question in issue.
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.
In his affidavit sworn on 18 May 1995 filed in support of the application Orazio Scolaro (who is also known as George Scolaro and is referred to as such in some of the evidence), (Scolaro), a director of the applicant, expresses his belief that the demand relates to goods and services provided by the respondent in respect of the construction of a building for the Department of Social Services at the corner of Duncans Road and Synnot Street, Werribee (the DSS building) and has exhibited a bundle of statements and an invoice from the respondent addressed to Alert Constructions for the amount claimed in the demand. He says that Alert Constructions was a business name used by a company known as De Pellegrin Pty Ltd ACN 004 479 163 (De Pellegrin) in respect of which company a receiver and manager and a liquidator have been appointed. The statements and invoice are all addressed to "Alert Constructions C/o Scolaros Concrete Const". Other evidence establishes that on 10 May 1994 a receiver and manager of De Pellegrin was appointed and that on 25 May 1994 a liquidator was appointed in a creditors' voluntary winding up.
Scolaro further says that he believes that De Pellegrin contracted with the City of Werribee to construct the DSS building and he has exhibited a copy of a lump sum building contract dated 25 May 1993 made between the City of Werribee and "Alert Constructions Pty Ltd ACN 004 479 163" (the building contract) and which relates to a project described as "Office Accommodation corner Duncan Road and Synnot Street, Werribee". Although the contractor is described in the building contract 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 ACN 004 479 163. It is said that the applicant was not a party to the building contract, that it has not entered into any agreement with the respondent for the supply by the respondent to it 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 for the purposes of the building contract. Furthermore, it is said that the applicant has not agreed with the respondent that it would pay the respondent any money due to it by De Pellegrin in respect of any goods and services supplied for the purposes of the building contract.
Initially the respondent filed affidavits of Robert Spielman (Spielman) and of Bob Grbin (Grbin), both sworn 31 May 1995, in opposition to the application.
Robert Spielman is an employee of the respondent. He says that the demand refers to goods and services provided by the respondent in respect to the fitout, and not the construction, of the DSS building. He says that the fitout agreement was initially negotiated between Alert Constructions and the respondent and in early 1994 the applicant took over 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 he attended with Grbin and Scolaro on the previous day. The fax is on a printed coversheet in the name of "Scolaro's Concrete Construction Pty Ltd" and is expressed to be from "Alert Scolaro". It is 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/o Scolaro Concrete Const". This invoice was paid by a cheque for $100,000 dated 27 April 1994 drawn on the same account as the cheque previously referred to.
Grbin is a site supervisor employed by the respondent. He says that he approached Scolaro on site at the DSS building on about 21 March 1994 and said 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 applicant. Scolaro then proceeded to instruct the respondent with respect to all site work and variations. On about 27 April 1994 Scolaro telephoned and asked that the next progress invoice be sent to Alert Constructions but addressed to the applicant. Invoice 22136 for $100,000 is exhibited to the affidavit. In the same telephone conversation Scolaro told Grbin to pick up the cheque from the applicant at Werribee which he did on 27 April 1994. The cheque for $100,000 previously referred to is exhibited and identified as the cheque in question.
Scolaro replied to the respondent's evidence by a further affidavit sworn 23 June 1995. He says that the fitout agreement was part of the construction of the building and he denies that any fitout agreement was taken over by the applicant. However, shortly after the commencement of the contract the directors of De Pellegrin approached him to act as site foreman principally, he believes, because the applicant was a subcontractor to De Pellegrin for a considerable part of the construction work and as he lived at Werribee and was well known to the officers of the City of Werribee, this would facilitate the progress of the contract. He says he accepted the role of site foreman and opened an account at his own bank in the name of the applicant but in trust for De Pellegrin into which money received by De Pellegrin from the City of Werribee was to be deposited and out of which all subcontractors and employees of De Pellegrin were to be paid. He denies having told Grbin that the applicant would pay the respondent for any work performed by it in respect of the DSS building.
Scolaro's second affidavit drew further responses from Spielman and Grbin. Both swore affidavits on 10 July 1995.
Spielman says that a tender price was negotiated and submitted by the respondent for the fitout and same was accepted by Stephen De Pellegrin for De Pellegrin and Scolaro for the applicant. A copy of a fax said to be the acceptance of the tender is exhibited. 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)". It is addressed to the respondent for the attention of Rob Spielman. The date is not entirely clear but appears to be "27/1/94". 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 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.
The fax is unsigned.
Also exhibited is a fax received by the respondent on 18 February 1994 on the applicant's printed coversheet which is said to be from "Scolaro Alert" and another fax dated 8 March 1994 on the applicant'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 Company: Scolaro/Alert".
In his second affidavit Grbin disputes the assertion that Scolaro was site foreman and says that that position was held by one Fabio Caversan. Following the final inspection on 2 May 1994, in which Caversan participated, Grbin received a fax on the applicant's printed coversheet identifying items to be attended to. The fax is said to be from "Fab" and is signed similarly. The inference is that "Fab" refers to Fabio Caversan.
The only other evidence before the Court is an affidavit sworn by the respondent's corporate solicitor Anthony Calvi on 18 October 1995. Calvi says that he has inspected documents relating to the liquidation of De Pellegrin and found the following documents -
An unexecuted document described as "Joint Venture Agreement" which bears date 12 August 1993 and purports to be between De Pellegrin of the one part and the applicant of the other. This document deals with a purported agreement between De Pellegrin and the applicant to jointly carry out the works specified in the building contract.
An unexecuted deed of assignment which is undated and in which the parties are De Pellegrin (assignor), the applicant (assignee) and the City of Werribee. The document recites, inter alia -
a)details of the building contract;
b)that the assignor and assignee are parties to a joint venture agreement dated 12 August 1993 under which they agreed on terms to jointly carry out the project at Werribee;
c)that the assignor wishes to withdraw from the joint venture and assign its rights under the contract to the assignee.
Calvi says that he made enquiries of an officer of the City of Werribee concerning the existence of documents relating to a joint venture between the applicant and De Pellegrin and in response received a copy of a fax dated 29 April 1994 addressed to the City of Werribee sent by the applicant's solicitors Messrs Best Hooper. The same solicitors are the solicitors for the applicant in this proceeding. The text of the fax is as follows:
Dear Sir
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.
If you require any further information, please let us know.
Yours faithfully,
Best Hooper
per:
J.D. Cicero
Although the mere production of copies of the unexecuted joint venture agreement and the unexecuted assignment of contract
does not constitute evidence of a joint venture between the applicant and De Pellegrin or of an assignment of De Pellegrin's interest in the building contract to the applicant, the fax dated 29 April 1994 sent by the applicant's solicitors to the City of Werribee does provide evidence of a joint venture agreement between the applicant and De Pellegrin entered into on 12 August 1993 and also evidence that the joint venture still subsisted at least until 29 April 1994. The applicant has not sought to contradict or qualify the very clear terms of the fax and in the circumstances I draw the inference that as from 12 August 1993 until at least 29 April 1994 the applicant and De Pellegrin carried out the building contract as joint venturers. The evidence provided by the invoices put in evidence by both parties establishes that on 29 April 1994 the respondent debited the sum of $29,895.35 (invoice 22137) and $6,457.15 (invoice 22138). The total of these sums represents the amount of the debt claimed in the demand. Such sum was originally debited during the subsistence of the joint venture between the applicant and De Pellegrin.
The fax of 27 January 1994 accepting the respondent's tender for the fitout was sent at a time when the applicant and De Pellegrin regarded themselves as joint venturers in the project. The acceptance is expressed in the plural. 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 the applicant and De Pellegrin is consistent with those companies being joint venturers and consistent with the respondent dealing with them as such.
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.
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 application will be dismissed with costs.
I certify that this and the preceding 10 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated:
Heard: 24 October 1995
Place: Melbourne
Judgment: 27 October 1995
Appearances:
Mr S.R. Horgan (instructed by Best Hooper) appeared for the applicant.
Mr R.T. Burns (instructed by Anthony Calvi) appeared for the respondent.
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