Teras Australia Pty Ltd v Blue Ore Pty Ltd [No 2]
[2015] WADC 120
•15 OCTOBER 2015
TERAS AUSTRALIA PTY LTD -v- BLUE ORE PTY LTD [No 2] [2015] WADC 120
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 120 | |
| Case No: | CIV:878/2014 | 27 AUGUST 2015 | |
| Coram: | WAGER DCJ | 15/10/15 | |
| PERTH | |||
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | TERAS AUSTRALIA PTY LTD BLUE ORE PTY LTD JUSTIN HEATH RIDLEY |
Catchwords: | Appeal Summary judgment voidable transaction no triable issue |
Legislation: | District Court Rules 2005 (WA) Corporations Act 2001 (Cth) Rules of the Supreme Court 1971 (WA) |
Case References: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Banque de Paris et des Pays–Bas (Suisse) S.A. v de Naray [1984] 1 Lloyd's Rep 21 Birch Investments Pty Ltd v Kiap Khee Lim (Unreported, WASC, Library No 7396, 12 July 1988) Clarke v Union Bank of Australia Ltd (1917) 23 CLR 5 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; (1983) 48 ALR 1; (1982) 57 ALJR 621 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 Nissho Iwai (Australia) Ltd v Oskar [1984] WAR 53 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159 Swansdale Pty Ltd v Whitcrest Pty Ltd [2009] WASC 117 Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 ALL ER 513; [2001] UKHL 16 Westpoint Management Pty Ltd v Goakes [2002] WASCA 317 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
BLUE ORE PTY LTD
First Defendant
JUSTIN HEATH RIDLEY
Second Defendant
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DEPUTY REGISTRAR HEWITT
Citation : TERAS AUSTRALIA PTY LTD -v- BLUE ORE PTY LTD [2015] WADC 40
File No : CIV 878 of 2014
Catchwords:
Appeal - Summary judgment - voidable transaction - no triable issue
Legislation:
District Court Rules 2005 (WA)
Corporations Act 2001 (Cth)
Rules of the Supreme Court 1971 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
Plaintiff : Ms JR Cass
First Defendant : No appearance
Second Defendant : Mr P Mendelow
Solicitors:
Plaintiff : Jackson McDonald
First Defendant : Not applicable
Second Defendant : WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Banque de Paris et des Pays–Bas (Suisse) S.A. v de Naray [1984] 1 Lloyd's Rep 21
Birch Investments Pty Ltd v Kiap Khee Lim (Unreported, WASC, Library No 7396, 12 July 1988)
Clarke v Union Bank of Australia Ltd (1917) 23 CLR 5
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; (1983) 48 ALR 1; (1982) 57 ALJR 621
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Nissho Iwai (Australia) Ltd v Oskar [1984] WAR 53
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159
Swansdale Pty Ltd v Whitcrest Pty Ltd [2009] WASC 117
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 ALL ER 513; [2001] UKHL 16
Westpoint Management Pty Ltd v Goakes [2002] WASCA 317
1 WAGER DCJ: The second defendant Mr Ridley appeals against the decision of Deputy Registrar Hewitt made on 21 April 2015 granting summary judgment in favour of the plaintiff Teras Australia Pty Ltd solely in respect of the relief claimed. The judgment was for the sum of $164,781.86 together with $17,000 in respect of legal costs that Teras asserts were incurred.
2 The appeal proceeds as a hearing de novo of the summary judgment application: s 15(6) District Court Rules 2005.
3 It is common ground that on 14 August 2010 Teras entered into a hire agreement with the first defendant Blue Ore Pty Ltd (Blue Ore) to hire equipment to them. Mr Ridley was the sole director of Blue Ore and he signed a guarantee and indemnity guaranteeing Blue Ore's obligations under the terms of the hire agreement. Blue Ore failed to make the payments due in respect of the agreement and failed to pay interest on the overdue amounts in breach of the terms of the hire agreement. Teras terminated the agreement and commenced proceedings against Blue Ore and against Mr Ridley as guarantor.
4 On 8 April 2014 the parties entered into an agreement to settle the matter at an informal settlement conference. The settlement agreement was handwritten and signed by the parties. The agreement was:
1. Teras Australia will pay Justin Ridley's airfare from Perth to Darwin and return.
2. Teras Australia will pay Justin Ridley's accommodation and meals while in Darwin. Teras Australia will arrange the accommodation. The allowance for meals will be capped at $100 per day.
3. Teras Australia will provide the machinery and labour required to assemble the equipment, the Red Wolff Extreme Wash Unit ('Unit').
4. Justin Ridley will provide his time involved in assembling and commissioning the Unit at no cost.
5. Justin Ridley will provide the technical drawings and operating manual for the Unit.
6. Subject to clause 7 Blue Ore and Justin Ridley are jointly and severally liable to commission the equipment and ensure that it is operating.
7. Blue Ore and Justin Ridley will be responsible for repair or replacement costs in ensuring the Unit is operating (including completing the item set out in the email from Justin Ridley to Mike Milton dated 10.12.2013 by 31 May 2014 or such other date as agreed by the parties, such costs to be borne by Blue Ore and Justin Ridley to be kept at $30,000 in total.
8. The sum of $182,628.49 be paid into an interest bearing account and held in escrow pending the commissioning of the Unit.
9. Within 7 days of the parties being satisfied that the Unit is operational:
(a) the funds held in the interest bearing account will be paid to Teras Australia; and
(b) the parties will cause their lawyers to file a minute of consent orders discontinuing the proceedings commenced by Teras against Blue Ore and Justin Ridley with no order as to costs.
10. Upon satisfaction of clause 9 the parties release one another from any claims arising from the equipment hire agreement made on 14 August 2010.
5 The sum referred to in cl 8 was deposited into an interest bearing account held by Jackson McDonald on Teras' behalf on 11 April 2014.
6 By email dated 28 June 2014 Teras' solicitors advised Mr Ridley's solicitors that Teras 'does not anticipate that the equipment will be commissioned until the end of June 2014'. A directions hearing in June 2014 was vacated by consent to be listed on or after 4 July 2014. At a further listing on 9 July 2014 the parties adjourned the listing by consent to 28 November 2014.
7 However on 22 October 2014 Teras' solicitors sent the following email to the solicitors for Blue Ore and Mr Ridley:
We confirm that on 17 April 2014, we received the sum of $182,628.49 to be held by us on trust on behalf of our client, pursuant to the terms of the settlement negotiated between the parties on 11 April 2014.
On about 29 May 2014, our client received a notice from Clifford Sanderson of Dissolved Liquidators informing it that Mr Sanderson was appointed as liquidator of Blue Ore on 28 May 2014.
The liquidator was of the view that the funds paid into our account on 17 April 2014 may be a preference payment and therefore may be clawed back in the liquidation of Blue Ore. Our client disputes that it has received a preference payment.
As both Justin Ridley and Blue Ore are responsible for the payment of the debt to our client, would you kindly inform us of the identity of the party that deposited the funds into our account and provide evidence of the transfer.
Should the settlement funds be clawed back by the liquidator, our client intends to proceed with the proceedings against Justin Ridley as guarantor of the debt.
We look forward to hearing from you as a matter of urgency.
8 Consistent with this email on 28 May 2014 Blue Ore had been placed into voluntary liquidation. Mr Sanderson had been appointed liquidator and the liquidator advised Teras' solicitors that the sum held on trust was a voidable transaction pursuant to s 588FE(2) of the Corporations Act 2001 (Cth).
9 Despite Teras' request in the email, the solicitors for Blue Ore and Mr Ridley did not advise Teras who had deposited the funds. Teras' solicitors conducted a search of a National Australia Bank account held by Jackson McDonald that disclosed an account held in the name of Blue Ore Pty Ltd. The relevant annexure consistent with is dated 9 December 2014 and the account by that date contained the sum of $185,901.18 consistent with $182,628.49 being placed in an interest bearing account on 11 April 2014.
10 By email dated 4 December 2014 Teras' solicitors wrote to the solicitors for Blue Ore and Mr Ridley. Relevantly, the email said:
We confirm that your client is seeking an adjournment to consider his position.
Our client considers that you [sic] client has had sufficient time in which to consider whether or not he intends to defend the proceedings.
We confirm that our client has agreed to pay back the funds deposited into the trust account by Blue Ore. These funds have been clawed back by the liquidator and will be returned to the liquidator in the next couple of days. Should your client require further confirmation of this, we suggest that he contact the liquidator directly.
We note that your client has been on notice of the possibility of the funds being clawed back since 22 October 2014. In this regard I refer to my email of that date in which we requested that your client inform us as to the identity of the party which deposited the funds into the trust bearing account. In that correspondence we informed you that should the funds be clawed back, our client would proceed against Justin Ridley as guarantor of the debt. Your client did not respond to that correspondence.
We therefore do not consider that there is any reason for your client to claim that he requires additional time to consider his position.
Our client intends to seek the following orders at the hearing tomorrow:
(1) Mr Ridley file and serve a defence by 19 December 2014;
(2) The Plaintiff file and serve any application for summary judgment by 16 January 2015.
We attach a draft minute of the orders we intend to seek at the hearing.
11 Neither Mr Ridley nor his solicitors responded to this email prior to the hearing on 5 December 2014. Teras subsequently filed the application for summary judgement.
12 Mr Ridley now argues that there is a defence to Teras' claim and the following issues arise to be determined:
1. Whether the sum paid into the account was in fact and in law an unfair preference within the meaning of s 588FA of the Corporations Act 2001 (Cth).
2. Whether the sum was received in good faith on Teras' behalf and a reasonable person in Teras' position would have had no reasonable grounds for suspecting that Blue Ore was insolvent or would be insolvent having regard to s 588FG of the Corporations Act 2001 (Cth)(this ground has been abandoned).
3. Whether Teras' solicitors were justified in remitting the payment to the liquidator.
4. Whether it was appropriate to grant summary judgment in circumstances in which no final distributions had been made to creditors of Blue Ore inclusive of Teras.
5. Whether Teras failed to afford Mr Ridley the opportunity to perform his obligations under the settlement agreement.
13 Teras argues that on the evidence it has established a prima facie right to an order for summary judgement. The burden has shifted to Mr Ridley to satisfy the court why judgement should not be granted. Mr Ridley has not presented any evidence that discharges this burden.
Legal principles on an application for summary judgment pursuant to O 14 Rules of the Supreme Court 1971
14 The summary judgment procedure is designed to deal with cases that are not fit for trial at all: Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 ALL ER 513, 516, 543, 547; [2001] UKHL 16 [1], [95], [111].
15 Even if the facts which are established are inconclusive, if it is not possible to say without doubt on the whole of the material that there is no question to be tried, there should be leave to defend: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99; (1983) 48 ALR 1, 10; (1982) 57 ALJR 621. If facts are in dispute then the action should not be disposed of summarily.
16 However, where the plaintiff has satisfied all of the criteria identified in O 14 Rules of the Supreme Court 1971 the defendant bears the onus of satisfying the court why judgment should not be given against it. In order to discharge this onus the defendant must lead evidence disclosing some triable issue either of fact or law, an arguable defence or a defence on the merits, or any other matters establishing that the case ought to be heard for some other reason: Clarke v Union Bank of Australia Ltd (1917) 23 CLR 5, 8; Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110 (Brinson J); O 14 r 3 and r 4 Rules of the Supreme Court 1971. The matters contained in the defendant's affidavit material must condescend upon particulars if a defence is to be raised in the affidavits filed in support: Moscow Narodny Bank Ltd (113).
17 Summary judgment proceedings are not to be decided by simply weighing up two affidavits. Rather, the court must look at the situation as a whole and ask whether the defendant has satisfied the court that there is a fair and reasonable probability of the defendant having a real or bona fide defence: Banque de Paris et des Pays–Bas (Suisse) S.A. v de Naray [1984] 1 Lloyd's Rep 21, 23.
The issues
18 Accordingly, I need to determine:
1. Has Teras established a prima facie right to an order for summary judgement?
2. If so, has Mr Ridley produced evidence of some triable issue of either fact or law?
Has Teras established a prima facie right to an order for summary judgement?
19 The parties agree that the settlement agreement was a binding contract between them.
20 Under the terms of the agreement Blue Ore had paid $182,628.49 into the account on 11 April 2014. It was to be held in escrow pending the commissioning of the Unit (cl 8).
21 Mr Ridley argues that he was ready, willing and able to repair and commission the Unit pursuant to cl 1 to cl 7 but Teras stopped this from occurring.
22 However, although Mr Ridley deposes that it was his intention to do the work, when proceedings relevant to the settlement agreement were listed in court, the court date was vacated by consent. Relevantly, prior to the directions hearing listed in June 2014 Teras' solicitors requested an adjournment and said 'We are instructed that our client does not anticipate that the equipment will be commissioned until the end of June 2014.'
23 That directions hearing was adjourned by consent until 28 November 2014.
24 Further, consistent with cl 9(a) of the agreement the funds held in the account (cl 8) were to be paid to Teras within 7 days of the parties being satisfied that the Unit was operational. Consistent with the agreement it was only when cl 9(a) had been complied with that cl 9(b) would apply, that is, that the parties will cause their lawyers to file a minute of consent orders discontinuing the proceedings commenced by Teras against Blue Ore and Justin Ridley with no order as to costs.
25 Once the sum held in the account was remitted to the liquidator for Blue Ore no other sum was paid into that account or any other as required by cl 8. The sum was remitted to Blue Ore from the account at the direction of the liquidators for Blue Ore who claimed the sum was an unfair preference within the meaning of s 588FA of the Corporations Act2001 (Cth). Section 588FA and s 588E of the Corporations Act 2001 (Cth) state:
Section 588FA of the Corporations Act 2001 (Cth)
Division 2 voidable transaction
Section 588FA – unfair preferences
1. A transaction is an unfair preference given by a company to a creditor of the company if and only if:
(a) the company and the creditor are parties to the transaction (even if someone else is also a party); and
(b) the transaction results in the creditor receiving from the company, in respect of an unsecured debt that the company owes to the creditor, more than the creditor would receive from the company in respect of the debt if the transaction was set aside and the creditor were to prove for the debt in a winding up of the company; even if the transaction is entered into, is given effect to, or is required to be given effect to, because of an order of an Australian court or a direction by an agency.
(2) The transaction is voidable if:
(a) it is an insolvent transaction of the company; and
(b) it was entered into, or an act was done for the purpose of giving effect to it:
(i) during the six months ending on the relation – back day; or
(ii) after that day but on or before the day when the winding up began.
27 Once the sum was remitted the onus was on Mr Ridley to pay the sum into the account in order to comply with cl 8, not on Teras to go behind the bona fides of the liquidators' request. Teras claims that the settlement agreement was repudiated because cl 8 was not complied with after the sum was remitted.
Legal principles applicable to repudiation
28 Breach of contract by repudiation occurs when a party evinces an intention no longer to be bound by it, or to fulfil it only in a manner substantially inconsistent with his obligations. An alternative formula defines repudiation as the manifestation of an intention to perform only 'if and when it suits' or 'as and when it suits'. Repudiation means 'renunciation', either of the contract as a whole or of a fundamental obligation under it: Cheshire & Fifoot Law of Contract (10th Aust ed, 2012) 21.12, footnotes omitted.
29 In the Foskett D, Law and Practice of Compromise with Precedents (7th ed, 2012) the author said at 8-9:
Where an agreement, on its proper construction does provide for recourse to the original claim in the event of a breach by the other party, the question arises as to whether the innocent party is obliged to revert to that claim or whether he can proceed to enforce the compromise. Whilst it would not be possible to conceive of an agreement which expressly provided that the innocent party in such a situation must revert to the original claim, the most likely formulation of such an agreement is that he may do so. If this is not spelt out expressly, it is likely to be implied in the sense that it is the obvious inference to be drawn from the agreement. In this situation it would appear that the innocent party may elect between reverting to the original claim and pursing his rights under the compromise.
30 If a party accepts the repudiation the original cause of action may be revived and enforced: Nissho Iwai (Australia) Ltd v Oskar [1984] WAR 53 (58) and Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159 [33].
Was the settlement agreement repudiated and did Teras elect to revive the original cause of action?
31 Teras submits that it made it clear to Blue Ore and to Mr Ridley by the email dated 22 October 2014 and by the email dated 4 December 2014 that it intended to proceed with the original proceedings against Mr Ridley as guarantor in the event of repudiation of the settlement agreement. Once the money was remitted Teras accepted the repudiation. The original cause of action was revived.
32 Mr Ridley challenges the receipt into evidence of the affidavit of Jennifer Rose Cass filed 18 August 2015 on Teras' behalf. On 26 May 2015 Deputy Registrar Hewitt had ordered that the plaintiff file and serve any additional affidavit upon which it intends to rely by 12 June 2015.
33 Counsel for Mr Ridley argues that I should not receive the affidavit into evidence and submits that the circumstances of its filing are analogous to those dealt with in Swansdale Pty Ltd v Whitcrest Pty Ltd [2009] WASC 117. In that case the Court of Appeal dealt with an interlocutory appeal that related in part to the reception of late material. Three affidavits were filed four days before the hearing of the substantive argument. The material was not brought to the attention of the master until the time of hearing and there was no explanation to justify or rationalise the late filing. Kenneth Martin J described the filing as being a 'last minute flurry of activity from the appellants' [29].
34 The affidavit filed on Teras' behalf contains a number of attachments, however all of the attachments are documents that were sent to the solicitors for Blue Ore and Mr Ridley or that relate to the court proceedings involving Blue Ore and Mr Ridley. The affidavit does not contain any new evidence that was not known by the parties or that had not been disclosed earlier. The affidavit was served on Mr Ridley's solicitors nine days prior to the hearing. Given that Mr Ridley was aware of the content of each of the attachments, the material did not take him by surprise. It is unfortunate that Teras' solicitors did not comply with the order of the deputy registrar, however applying the principles set out in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, I accept the evidence and I take it into account.
35 Counsel for Mr Ridley also objects to the court's consideration of the whole of the affidavit material filed by Teras because, he submits, it does not comply with O 14 r 2 Rules of the Supreme Court 1971. Order 14 r 2(1) says:
An application under r 1 shall be made by someone and supported by an affidavit verifying the facts on which the claim or the part of claim to which the application relates is based and stating that in the deponent's belief there is no defence to that claim or part thereof.
36 Counsel asserts that the deponents to affidavits filed in a matter of this type must depose that 'I verily believe that there is no defence to the claim of the plaintiff'.
37 These words are not contained in any of the affidavit material filed on behalf of Teras. Although I accept the affidavits filed on Teras' behalf do not contain these precise words, I find that the only reasonable conclusion to be drawn from the content of the affidavit material is that Teras asserts a belief that there is no defence to the claim or part thereof. I do not consider the absence of the precise words to be a reason to reject the affidavit evidence filed on Teras' behalf.
38 Counsel for Mr Ridley further objects to the receipt into evidence of the affidavit of Clifford John Sanderson sworn 13 February 2015 filed on Teras' behalf because Teras relies on the evidence as expert opinion evidence when pars 4 to 7 are inadmissible because the source of the knowledge and belief of Mr Sanderson included in the affidavit.
39 The affidavit of Mr Sanderson contains both matters of fact and opinion. Paragraphs 1 to 3 contain matters of fact and state:
1. I am both a registered liquidator and a chartered accountant and have practised in the insolvency/accountancy space since approximately 1986.
2. Blue Ore Pty Ltd (Blue Ore) was placed into creditors voluntary liquidation on 28th May 2014 by a Resolution of its Shareholders and I was appointed liquidator. My appointment was ratified by creditors at the first Creditors Meeting on 18 June 2014.
3. The facts contained in this affidavit are within my personal knowledge save where otherwise stated where they have been obtained from the sources stated, and from my knowledge of the books and records of Blue Ore. The facts deposed to in this affidavit are both true and correct to the best of my knowledge, information and belief.
40 However, pars 4 to 7 relate to expressions of opinion and state:
4. From my review of the books and records of Blue Ore after my appointment, I formed the view that Blue Ore was insolvent as of June 2013.
5. I also became aware that on about 11 April 2014, Blue Ore transferred the sum of $182,628.49 to the Jackson McDonald trust account.
6. From my review of the books and records of Blue Ore, I knew that the payment made to Jackson McDonald was for an amount greater than Teras Australia Pty Ltd (Teras) would have received if the transaction was set aside and Teras was required to prove the debt in the winding up of Blue Ore.
7. Having regard to the insolvency of Blue Ore at the time the transfer was made and the relation back day of 28 May 2014, I formed the view that the payment was a voidable transaction as it was an unfair preference on the basis that it was a payment made within six months prior to Blue Ore having gone into Liquidation, it was a payment made at a time when Blue Ore was insolvent and it was a payment made which saw, on my estimation, Teras receiving more than it would have received on the basis that, at the time of my appointment, the realisable assets of Blue Ore were some $18,755 with creditors owed approximately $460,685.
41 Mr Sanderson further deposes at par 8:
8. Accordingly, I demanded that Teras return the funds held in Jackson McDonald's trust account and be remitted to Blue Ore and on 9 December 2014 the funds were remitted to Blue Ore.
42 There are no documents attached to Mr Sanderson's affidavit to support the opinion upon which the conclusions are reached. Counsel for Mr Ridley argues that the evidence set out in pars 4 to 7 purports to be expert evidence in circumstances in which the primary evidence relied upon for the opinion is not in evidence before the court.
43 Where an expert relies on the existence or non-existence of some fact which is basic to the question on which he is asked to express an opinion, that fact must be proved by admissible evidence: Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, 375 (Ipp J). Counsel also argues that it is clear that direct primary evidence is readily available to the party and it should have been placed before the court: Birch Investments Pty Ltd v Kiap Khee Lim (Unreported, WASC, Library No 7396, 12 July 1988); LexisNexis Butterworths, Civil Procedure Western Australia, vol 1 (161-01-15) [14.2.6].
44 The requirement for a statement of the sources and grounds of information and belief is important because it reveals the original source of the hearsay information, provides some opportunity to counter or to challenge it and enables a prosecution for perjury in a proper case if necessary: Westpoint Management Pty Ltd v Goakes [2002] WASCA 317 [14], [15]; LexisNexis Butterworths, Civil Procedure Western Australia, vol 1 (161-01-15) [37.6.2].
45 I accept that direct primary evidence was readily available to Mr Sanderson. The opinion he expresses in his affidavit is not supported by evidence. There is no factual foundation for the conclusions reached in pars 4 to 7. I rule that pars 4 to 7 are inadmissible. I admit pars 1 to 3 into evidence.
46 However, given the facts in this case Teras does not need to rely on the opinion evidence of Mr Sanderson in order to establish a prima facie right to summary judgment. I am satisfied on the evidence that I do accept that Teras has established a prima facie right to an order for summary judgment.
Has Mr Ridley produced evidence of some triable issue of either fact or law?
Is there a triable issue that the sum in the account was in fact or in law an unfair preference within the meaning of s 588FA of the Corporations Act 2001 (Cth)?
47 Counsel for Mr Ridley argues that Teras remitted the sum to the liquidator without consultation with Mr Ridley. He asserts that when Teras' solicitors wrote to Mr Ridley's solicitors on 4 December 2014 and said 'the funds will be returned to the liquidator in the next couple of days' and suggested Mr Ridley contact the liquidator directly should he require further confirmation, Teras should not have proceeded to pay back the funds. Counsel argues that Teras had never received the information as to the identification of the party who had deposited the sum into the account in response to the email dated 22 October 2014 and says that if information came to the attention of Teras as to why it was required to pay the sum held in trust to the liquidator such evidence would have been placed before the court. Counsel asserts that there has been no evidence adduced by Teras as to why Teras moved from making inquiries as to who had deposited the sum on 22 October 2014 to returning the sum and acknowledging it to be a preference payment on 4 December 2014.
48 I do not accept that Teras has failed to file evidence supporting its decision to remit the sum to Blue Ore. Teras has led evidence that a party named Blue Ore was recorded as paying the sum consistent with cl 8 into the account at a time consistent with 11 April 2014. The only reasonable conclusion is that Blue Ore deposited the sum. Further, it was Blue Ore's liquidators who requested that the funds be remitted back.
49 Neither Blue Ore nor Mr Ridley filed any evidence contrary to the conclusion that Blue Ore paid the sum into the account. Relevantly, Mr Ridley was the sole director of Blue Ore. Mr Ridley was a party to the settlement agreement so he was aware of its conditions. Given that no evidence has been filed by Mr Ridley contrary to the conclusion reached by Teras, I find that Mr Ridley has not presented any evidence to support a triable issue in relation to the identity of the party who paid the sum into the account.
Has Mr Ridley produced evidence that Teras' solicitors were not justified in remitting the payment to the liquidator?
50 There is no evidence that Teras should not have acceded to the liquidator's request. For the reasons I have outlined there is no evidence that discloses this to be a triable issue.
Has Mr Ridley produced evidence of a triable issue that Teras failed to afford him the opportunity to perform his obligations under the settlement agreement?
51 Counsel for Mr Ridley argues that the settlement agreement was a binding and enforceable legal agreement. He asserts that no evidence exists to the effect that Mr Ridley breached the settlement agreement. For the reasons I have outlined I accept that on the evidence before me Blue Ore deposited the sum into the account. The liquidators for Blue Ore requested the sum be remitted as a preferred payment and this occurred. No additional or further sum was paid into an account consistent with the requirements of cl 8. No evidence has been led by Mr Ridley that supports a contrary position.
Has Mr Ridley produced evidence that it was inappropriate to grant summary judgment in circumstances in which no final distribution had been made to creditors or of Blue Ore inclusive of Teras?
52 Counsel for Mr Ridley argues that because Teras acted on the repudiation of the settlement agreement and chose to revive its original claim, the sum in dispute has become the sum of damages relevant to the original claim and this sum has not been determined. It is therefore premature to award summary judgment in the sum of $180,059.10 or in any sum at all.
53 I reject Mr Ridley's position. Mr Ridley was guarantor of the original contract and the facts relevant to the original claim are not in dispute. Mr Ridley has not filed a defence and as guarantor, he has an obligation to pay the sum outstanding. No evidence has been led by Mr Ridley to the contrary. There is no evidence that supports Mr Ridley's position. This is not a triable issue. Similarly, I do not accept that because a final distribution has not been made by the liquidator the sum cannot be determined.
Is there any other reason for the matter to proceed to trial?
54 Counsel for Mr Ridley argues that an investigation of the question of whether the sum paid into the account was an unfair preference should proceed to trial. However, because it was the liquidators for Blue Ore who requested the sum be remitted as a preference payment, there is no evidence that the sum was not a preference payment. This is not a triable issue that requires investigation.
55 I dismiss Mr Ridley's appeal in this matter.
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