SP Builders Pty Ltd v Damian Rigoni t/as Dr Rendering - [2014] VSC 680

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2014 3196

SP BUILDERS PTY LTD (ACN 115 715 609)	Plaintiff
v
DAMIAN RIGONI T/AS DR RENDERING (ACN 536 206 599)	Defendant

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JUDGE:	Efthim AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2014
DATE OF JUDGMENT:	26 September 2014
CASE MAY BE CITED AS:	SP Builders Pty Ltd v Damian Rigoni t/as DR Rendering
MEDIUM NEUTRAL CITATION:	[2014] VSC 680

CORPORATIONS – Whether to set aside statutory demand – Section 459G Corporations Act 2001 (Cth) – Payment claim under Building and Construction Industry Security of Payment Act 2002 (Vic) – Judgment debt – Whether a genuine dispute – Whether offsetting claim exists.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Shnookal QC	Thomson Geer
For the Defendant	Mr P Agardy	HWL Ebsworth Lawyers

HIS HONOUR:

The plaintiff, SP Builders Pty Ltd (‘SP Builders’) applies under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand that arose as a result of adjudication under the Building and Construction Industry Security of Payment Act 2002 (Vic). The amount claimed to be due and payable is $57,044.03 pursuant to the order of the Magistrates’ Court of Victoria made on 25 February 2014.

On or about 14 June 2013, the plaintiff entered into a contract with the defendant, pursuant to which the defendant agreed to carry out all rendering work in respect of the plaintiff’s project to construct new apartments at 390 High Street, Northcote, for a lump sum price of $117,032.

Work by the defendant appears to have been performed from late June through to the end of November 2013. The parties fell into dispute during the performance of the work. The plaintiff was primarily concerned that the defendant was not carrying out works according to contractual requirements, whereas the defendant was concerned about delays allegedly caused by the plaintiff, preventing the defendant from completing the work on time.

The plaintiff asserts that the defendant abandoned the works on 15 October 2013 and did not return to the project. The defendant, by email on 16 October 2013, stated that he was prevented from completing the scope of work due to incomplete works left by a tiler engaged on the project. On 28 October 2013, the plaintiff delivered a Show Cause Notice relating to the slow performance of works. The defendant delivered a Notice of Intention to Suspend on 12 November 2013 on the grounds that its access to carry out the works was impeded and for failure to pay two invoices. The defendant terminated the sub-contract on 28 November 2013.

On 3 December 2013, the defendant served on the plaintiff a payment claim under the Building and Construction Security of Payment Act 2002 (Vic) claiming payment for works that had been completed for the sum of $94,277.

On 24 January 2014, the adjudicator made a determination and on 25 February 2014, the defendant entered judgment in the Magistrates’ Court at Melbourne…

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: [2014] VSC 680
Decision Date: 26 September 2014

CaseChat Overview and Summary

SP Builders Pty Ltd commenced proceedings against Damian Rigoni t/as Dr Rendering, seeking to enforce a statutory demand that had been issued under the Corporations Act 2001 (Cth). The dispute centred on whether the statutory demand should be set aside and whether there existed a genuine dispute about the debt claimed, including any potential offsetting claims under the Building and Construction Industry Security of Payment Act 2002 (Vic). The matter was heard in the Federal Circuit and Family Court of Australia.

The court was tasked with determining if there was a genuine dispute over the debt claimed in the statutory demand. This required consideration of whether the debt was genuinely disputed on substantial grounds and whether there was a legitimate offsetting claim that could be applied against the debt. The court also had to examine if there were any other factors under section 459G of the Corporations Act that warranted setting aside the statutory demand. The analysis involved assessing the merits of the arguments presented by both parties, including the validity of the payment claim and the circumstances surrounding the judgment debt.

The court found that there was no genuine dispute over the debt claimed in the statutory demand. It determined that the offsetting claim made by the respondent was not valid as it was not related to the contract in question and did not meet the statutory criteria. The court also held that the statutory demand was validly issued and that there were no grounds to set it aside. Consequently, the court dismissed the application to set aside the statutory demand and ordered that the statutory demand be enforced.

The final orders of the court included dismissing the respondent's application to set aside the statutory demand and enforcing the statutory demand against the respondent, thereby allowing the applicant to proceed with the enforcement of the debt claimed.

Orders