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Trinh Optical Yllusion Pty Ltd v Van

Trinh Optical Yllusion Pty Ltd v Van

Case [2012] SASC 125 25 July 2012

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
TRINH OPTICAL YLLUSION PTY LTD v VAN
[2012] SASC 125
Judgment of Judge Burley a Master of the Supreme Court
25 July 2012
CORPORATIONS
Application to set aside a statutory demand - amount due under a trust - whether a debt for the purposes of the Corporations Act 2001 - creditor/beneficiary an eight year-old boy - statutory demand served on the instructions of his mother - whether mother had authority to do so.
Held:
1. amount under a trust may be a debt, and
2. mother had no authority to serve demand.
Statutory demand set aside.
Corporations Act 2001 s 459E and 459J, referred to.
Bentham Management Pty Ltd v Union Finance Pty Ltd (2008) 247 LSJS 103; John Holland Construction & Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250; Chianti Pty Ltd v Leume Pty Ltd (2007) 35 WAR 488; Gusdote Pty Ltd and Another v Ashley and Another (2011) 193 FCR 227; Bridges and Towers Pty Ltd v Surucic [2009] NSWSC 1180, applied.

TRINH OPTICAL YLLUSION PTY LTD v VAN
[2012] SASC 125
JUDGE BURLEY:

The plaintiff has applied for an order that a statutory demand dated 26 April 2012 in the sum of $5666 be set aside. The affidavits respectively filed by the parties were admitted on the application. There is only one material disputed fact between the parties: Ms Anh Trinh, a director of the plaintiff company, says that the plaintiff has already paid the amount referred to in the statutory demand to the defendant.
The plaintiff is a trustee company and is the trustee for the Trinh Family Trust. One of the discretionary beneficiaries of the Trust is the defendant, who is an 8 year-old boy.
At paragraph 9 of her affidavit, Ms Trinh said:
For the year ended 30 June 2010 the defendant asserts in its statutory demand that they[sic] trust distribution was credited but not paid. Exhibited hereto and marked with the letters ‘AT 3’ are true copies of the financial statements of the plaintiff company for the years ended 30 June 2010 and 30 June 2011. The 2010 accounts include a summary of the 2009 accounts. As can be seen from the accounts, the defendant was given a distribution of $2666 for the 2009 financial year and $3000 for the 2010 financial year. In both instances the defendant was paid each amount by way of drawings.
The first question to be decided is whether or not the unsubstantiated assertion in paragraph 9 that each amount has been paid by way of drawings is a plausible basis for the contention that the debt is genuinely disputed.[1] As was pointed out by Young J in John Holland Construction & Engineering Pty Ltd v Kilpatrick Green Pty Ltd,[2] “something between mere assertion and the proof that would be necessary in a court of law” is required. If it were otherwise, his Honour said, “anyone could merely say it did not…

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.

Continue reading Trinh Optical Yllusion Pty Ltd v Van

Details

AGLC: Trinh Optical Yllusion Pty Ltd v Van [2012] SASC 125
Case: [2012] SASC 125
Decision Date: 25 July 2012

CaseChat Overview and Summary

Trinh Optical Yllusion Pty Ltd has applied for an order to set aside a statutory demand dated 26 April 2012 in the sum of $5666. The demand was served on the defendant, who is an eight year-old boy, and who is a beneficiary under the Trinh Family Trust. The defendant's mother served the demand on the plaintiff's instructions, and the sole material disputed fact is whether the plaintiff has already paid the amount referred to in the statutory demand to the defendant. The plaintiff contends that it has paid the amount to the defendant, but the mother has only made an unsubstantiated assertion to this effect, and has not provided any documentary proof of the payments.

The court considered whether the statutory demand could be set aside on the basis that the debt was genuinely disputed, but concluded that the plaintiff's unsubstantiated assertion that the amounts had been paid did not constitute a plausible case supporting the contention that the amounts had been paid. The court also considered whether the debt referred to in the statutory demand was a debt for the purposes of the Corporations Act 2001. It concluded that the amount of the distribution could be the subject of a statutory demand, as it had been recorded as drawings. However, the court held that the defendant's mother had no authority to serve the statutory demand on behalf of the defendant, as the Act does not confer upon a parent or other guardian of a minor who is a creditor the authority to undertake the statutory demand procedures. Accordingly, the statutory demand was made without authority and ought to be set aside pursuant to s 459J(1)(b).

The court set aside the statutory demand and made no order as to costs.

Orders