Vinten Nominees Pty Ltd (ACN 005 472 515) v Commonwealth Bank of Australia (ACN 123 123 124)

[1996] FCA 1181

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIAN REGISTRY               )
  )    No. VG 3520 of 1996
GENERAL DIVISION                 )

BETWEEN:  VINTEN NOMINEES PTY LTD

(ACN 005 472 515)

Applicant

AND:COMMONWEALTH BANK OF AUSTRALIA

(ACN 123 123 124)

Respondent

COURT:FINN J

PLACE:MELBOURNE

DATE:     10 DECEMBER 1996

EX TEMPORE MINUTES OF ORDERS

THE COURT ORDERS THAT:

the application be dismissed with costs, including reserved costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIAN REGISTRY               )
  )    No. VG 3520 of 1996
GENERAL DIVISION                 )

BETWEEN:  VINTEN NOMINEES PTY LTD

(ACN 005 472 515)

Applicant

AND:COMMONWEALTH BANK OF AUSTRALIA

(ACN 123 123 124)

Respondent

COURT:FINN J

PLACE:MELBOURNE

DATE:     10 DECEMBER 1996

EX TEMPORE REASONS FOR JUDGMENT
                   NOT FOR DISTRIBUTION

This is an application by Vinten Nominees Pty Ltd (“Vinten”) under s459G of the Corporations Law to set aside a statutory demand served on it by the Commonwealth Bank of Australia (“CBA”). It is totally without merit.

The affidavit material accompanying the application raised, as I understood it, merely one ground of objection to the statutory demand.  This was that the debt referred to in the demand was in fact not owed by Vinten but rather was owed by another company Gennaro Pty Ltd (in liq) (“Gennaro”) and that the CBA had proved in that company’s liquidation for the debt.

On the hearing before me the applicant sought to raise a number of matters said to constitute “defects” (cf s459J) in the demand.  The respondent having objected to this course, the applicant was asked to, but      could not, point to any material in the affidavits to suggest that these alleged defects were to be put in issue.  No amendment to the application was sought - and from what was said of the alleged defects, such would in all probability have been unsuccessful in any event.  In these circumstances, the application was heard on the basis that there was only one ground of challenge to the demand.  This was that Vinten was not the debtor.

As the affidavit accompanying the demand indicated, the debt was said to arise from:

“a Letter of Credit Facility (Account No. 3000 1025 1270) granted by the Creditor to the Debtor on 25 May 1992, which facility has expired and remains unpaid.”

It is not disputed that the CBA arranged such a facility.  Rather it is alleged that it was the intention both of Vinten and of the CBA that it was to be provided to Gennaro.

Mr Nibaldi, who was a director of both Vinten and Gennaro at the time of the grant of the facility and who was the person who conducted dealings with the CBA in arranging it, frankly conceded in his affidavit of 26 November 1996 that he was not concerned at the time as to which “vehicle” obtained the money but rather that the money was obtained.  Neither did he disavow the documentation prepared by the CBA and executed by him which related to the facility and associated security arrangements.

It would be pointless to set out here the documentary evidence over some number of years which on its face indicates conclusively that the CBA was dealing throughout with Mr Nibaldi on behalf of Vinten in relation to the facility.  I should add that I accept the account of this documentation set out in the written submissions of the respondent.  All that I find puzzling in this is that, in the face of the documentary evidence, it could be suggested that any company other than Vinten was the debtor in this matter.

The explanation of CBA’S proving for the debt in the liquidation of Gennaro - again amply supported by documentary evidence - was that Gennaro provided a guarantee of Vinten’s debt under the facility which the CBA sought to enforce.  The CBA’S action in this in no way casts any doubt on who was the principal debtor in the matter.

The only additional comment I would wish to make is to register my surprise that this application was prosecuted to a hearing.  There was nothing in it which could even remotely
suggest the glimmerings of a genuine dispute:  cf Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACLC 669.

I have already made my orders in this matter which were to dismiss the application with costs including reserve costs.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate

Dated:  12 December 1996

Counsel for the applicant        :  R Harris
Solicitors for the applicant     :  Molomby & Molomby

Counsel for the respondent       :  M Loughnan
Solicitors for the respondent        :  Ian F Purbrick

Date of hearing                  :  10 December 1996

Date of judgment                 :  10 December 1996