TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 5429 of 2007

TR ADMINISTRATION PTY LTD
	Appellant
v
FRANK MARCHETTI & SONS PTY LTD	Respondent

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JUDGES:	NEAVE, KELLAM  and DODDS STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 April 2008
DATE OF JUDGMENT:	5 May 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 70

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INSOLVENCY – Application to set aside creditor’s statutory demand claiming debts for labour hire services.

Whether genuine dispute over, or off-setting claim for, breach of agreement to achieve WorkCover premium reduction – Whether sufficiently evidenced or plausible – Corporations Act 2001 (Cth) ss 459G, 459H.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Michael Sifris SC with Jonathan Evans	DLA Phillips Fox
For the Respondent	Robin Brett QC with Simon Gardiner	MacPherson & Kelley

NEAVE JA:

1. For the reasons given by Dodds-Streeton JA, I agree that the appeal should be dismissed.

KELLAM JA:

1. I have had the advantage of reading the draft judgment of Dodds–Streeton JA. For the reasons stated by her Honour, I agree that the learned trial judge was not in error in concluding that the respondent had a genuine dispute or off-setting claim in the context of an application to set aside a statutory demand pursuant to section 459G of the Corporations Act 2001 (Cth). The appeal should be dismissed.

DODDS-STREETON JA:

1. In this appeal, the appellant, Frank Marchetti & Sons Pty Ltd (‘Marchetti’), appeals from the judgment of a judge of the trial division made on 18 September 2007.  His Honour allowed the appeal of the respondent, TR Administration Pty Ltd (‘TRA’), from a Master’s decision made on 2 July 2007 to dismiss Marchetti’s application to set aside TRA’s statutory demand dated 2 March 2007 (‘the statutory demand’).  He also ordered that the statutory demand be set aside and that TRA pay Marchetti’s costs of the appeal and the application before the Master.

1. The appellant appeals on the following principal grounds:

(1)The trial judge erred in holding that the evidence was sufficient to support a genuine claim that the appellant agreed to achieve savings of WorkCover premiums for the respondent.   

(2)The trial judge erred in holding that the indemnity contained in the agreement between the appellant and the respondent dated 1 October 2002 … was sufficient to establish any such prior oral agreement between the parties.

(3)Alternatively, the trial judge should have held that the evidence was not sufficient to establish that it was arguable that any such prior oral

agreement included a term that the appellant had agreed to achieve savings of WorkCover premiums for the respondent. 

(4)The trial judge erred in holding that the respondent had a valid offsetting claim in relation to the fees properly charged by the appellant in the sum of $55,593.95. 

(5)The judge should have held in particular, that the respondent did not have a valid offsetting claim –

(a)       based on any scheme argument;

(b)based on a claim for “damages or restitution or howsoever for the fees of some $58,343” paid by the respondent to the…