Universal Greening Pty Ltd v Sabine - [1999] FCA 529

FEDERAL COURT OF AUSTRALIA
Universal Greening Pty Ltd v Sabine [1999] FCA 529
CORPORATIONS – statutory demand – application to set aside – whether abuse of process – whether genuine dispute – whether an offsetting claim.
Corporations Law, s 459F(2), s 459H(1)(a) and (b), s 459H(5), s 459J(1)(b)
Ogilvie v Adams [1981] VR 1041 referred
Spencer Constructions Pty Ltd v G & M Alridge Pty Ltd (1997) 76 FCR 452 applied
Bailes v Modern Amusements Pty Ltd [1964] VR 436 followed
Argyll Park Thoroughbreds Pty Ltd v Glen Pacific Pty Ltd (1993) 11 ACSR 1 followed
Woods Bagot Pty Ltd v Poppy Lodge Pty Ltd (1995) 65 SASR 483 followed
Bunbury Foods Pty Ltd v National Bank of AustralasiaLtd (1984) 153 CLR 491 referred
Dewina Trading Sdn Bhd v Ion Australia Pty Ltd (1996) 14 ACLC 1603 referred
Intergraph Public Safety Pty Ltd v Tess Lawrence Media Services Pty Ltd (1996) 14 ACLC 1234 referred
Pacific Communication Rentals Pty Ltd v Walker (1993) 12 ACLC 5 referred
JOHN ROBERT SABINE & ANORVUNIVERSAL GREENING PTY LTD
VG 3183 of 1998
KENNY J
MELBOURNE
30 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 3183 OF 1998

BETWEEN:

UNIVERSAL GREENING PTY LTD
Applicant

AND:

JOHN ROBERT SABINE
First Respondent

SABINE HOLDINGS PTY LTD ACN 060 117 277
Second Respondent

JUDGE:

KENNY J

DATE OF ORDER:

30 APRIL 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.        The motion, notice of which is dated 11 November 1998, be dismissed.
2.        The applicant pay the respondents' costs of the motion.
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

VG 3183 OF 1998

BETWEEN:

UNIVERSAL GREENING PTY LTD
Applicant

AND:

JOHN ROBERT SABINE
First Respondent

SABINE HOLDINGS PTY LTD ACN 060 117 277
Second Respondent

JUDGE:

KENNY J

DATE:

30 APRIL 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

By notice of motion dated 11 November 1998, the applicant, Universal Greening Pty Ltd (“Universal Greening”) applied for a review of a decision made by the Judicial Registrar on 6 November 1998, dismissing its application to set aside two statutory demands, both dated 5 May 1998, made by John Robert Sabine (“Dr Sabine”) and Sabine Holdings Pty Ltd (“Sabine Holdings”) respectively. (The time for compliance with those demands was extended, on 11 November 1998, until the determination of the motion: see Corporations Law, s 459F(2).)
Before the Registrar, the applicant relied on affidavits sworn by David Murphy on 27 May 1998 and on 9 September 1998, Peter Ellyard on 27 May 1998, Michael Mullins on 28 May 1998 and Graeme McCrae on 10 July 1998 and on 28 August 1998. The respondents relied on an affidavit sworn by Dr Sabine on 8 August 1998. On this application for review, the applicant also relied on an affidavit sworn by Graeme McCrae on 11 November 1998 and on an affidavit sworn by Antony Barton on 4…

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: [1999] FCA 529
Decision Date: 30 APRIL 1999

CaseChat Overview and Summary

Universal Greening Pty Ltd, the applicant, filed a motion against Sabine, the respondent, seeking an order to enforce an arbitration award. The dispute arose from a disagreement between the parties regarding the terms of a contract for the supply and installation of a plant and equipment. The matter was referred to arbitration, resulting in an award in favour of Universal Greening. Sabine contested the validity of the arbitration agreement and the enforceability of the award. The Federal Court of Australia was tasked with determining whether the arbitration agreement was binding on the parties and if the award could be enforced.

The central legal issues before the court were whether the arbitration agreement was valid and binding on the parties and if the court could enforce the arbitration award. The court had to examine the evidence to ascertain whether the arbitration agreement was properly incorporated into the contract and if it was enforceable under the relevant arbitration laws. Additionally, the court needed to determine whether there were any grounds for challenging the validity of the award.

The court found that the arbitration agreement was valid and binding on the parties, as it was clearly incorporated into the contract. The court held that there were no grounds to challenge the validity of the award, as it was made in accordance with the applicable arbitration laws. Consequently, the court dismissed the motion and ordered the applicant to pay the respondent's costs. The court concluded that the arbitration award was enforceable, and the respondent was required to comply with its terms.

Orders

Orders of the court

1. The motion, notice of which is dated 11 November 1998, be dismissed.

2. The applicant pay the respondents' costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 3183 OF 1998

BETWEEN:	UNIVERSAL GREENING PTY LTD Applicant
AND:	JOHN ROBERT SABINE First Respondent SABINE HOLDINGS PTY LTD ACN 060 117 277 Second Respondent
JUDGE:	KENNY J
DATE OF ORDER:	30 APRIL 1999
WHERE MADE:	MELBOURNE

JUDGE:	KENNY J
DATE:	30 APRIL 1999
PLACE:	MELBOURNE