Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275 (24 May 2017): section 459G of the Corporations Act 2001, application to set aside a statutory demand, genuine dispute

June 5, 2017 |

In Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275  the Victorian Supreme Court, per Gardiner AsJ, dismissed an application to set aside a staututory demand on the basis that there was no genuine dispute.


Medusa claimed, per Likopoulos, that:

  1. on 24 October 2016, Nationwide issued several tax invoices to Ausform Constructions Vic Pty Ltd (‘Ausform Vic’), a company which had been deregistered since late 2014. Until it was deregistered Ausform Vic was a member of a group of companies associated with Mr Likopoulos and his family [9].
  2. on 26 October 2016, Nationwide reissued the tax invoices, this time to Medussa. The invoices noted that Medussa previously traded as ‘Ausform Constructions’ although Likopoulos stated that there had never been such an affiliation [10].
  3. later the same day, Nationwide reissued the same tax invoices to Medussa at its business address but omitting reference to the ‘Ausform Constructions’ connection. Likopoulos stated there is no contract or signed agreement between Medussa and Nationwide [11].
  4.  Medussa  was incorporated on 13 April 2016 and its sole director is Argyro Sylvia Barbardonis.
  5. the invoices reveal that the demand is in respect of concrete supplied by Nationwide to sites at Northcote and Toorak. The concrete was all supplied in the month of July 2016.

By affidavit in reply Likopoulos stated:

  1. that Ausform Projects Group Pty Ltd owns and trades under the business name Ausform Constructions and that he is a director.  Ausform Projects Group Pty Ltd was incorporated on 17 March 2016, at a time when Ausform Constructions Pty Ltd was still trading as a corporate entity, but it was not stated when Ausform Projects Group Pty Ltd assumed ownership of the name Ausform Constructions [26].
  2. that he is a director of Ausform Resources Group Pty Ltd which is a project management company that subcontracts work from Ausform Projects Group Pty Ltd. He states that Ausform Resources Group Pty Ltd subcontracts work to Medussa and engages contractors and labour for those works [27].
  3.  Ausform Constructions Vic Pty Ltd was deregistered on 2 September 2015 [28]
  4. Aaron Dooley is an employee of Ausform Projects Group Pty Ltd and an authorised representative of Ausform Resources Group Pty Ltd, not an employee of Medussa and that email signatures of emails sent by Dooley to Nationwide refer to Ausform Constructions, which is the trading name of Ausform Projects Group Pty Ltd, not the deregistered company as alleged by Nationwide. For good measure he asserted that Mr Dooley has no express or implied authority to bind or make any agreement between Medussa and Nationwide [29].

Nationwide, per Toh stated that:

  1. Nationwide, a supplier of concrete and concrete pumping services,  had some‘initial confusion’, in the trading relationship as the entity that initially approached Nationwide for the supply of concrete on 2 July 2016 was Ausform Constructions Pty Ltd  of which Likopoulos is the sole director. Nationwide was not aware that that company was in liquidation until an ASIC search on 8 December 2016 [14].
  2. a purchase order on Ausform Constructions Pty Ltd letterhead, directed to Nationwide, dated 5 July 2016, placed an order for concrete to be delivered to the Northcote site. Nationwide then proceeded to invoice Ausform Constructions Pty Ltd for concrete delivered to the two sites between 2 July 2016 and 30 July 2016 [15].
  3. when payment had not been received by August 2016, Nationwide’s accounts department pursued payment with  ‘Ausform’s accounts department’ on 17 September 2016 and 25 October 2016 [16].
  4. by email dated 25 October 2016 Dooley, who indicated that he was the general manager of Ausform, stated the company details was Medussa Enterprises Pty Ltd and “Any services you have provided to our company must have the correct details. Please send any relevant Invoices to us with the above company details so we can commence processing”[17].
  5. the email addresses provided were that of both Medussa and Ausform, and the address provided for Medussa is also the same address as Ausform’s at Cyber Loop in Dandenong South [18].
  6. on 26 October 2016, Nationwide emailed Mr Dooley with copies of the invoices made out to Medussa as requested [19].
  7. Toh spoke with John Likopoulos, the father of the Medussa’s director, a number of times in November 2016.  Likopoulos identified himself at one point as the finance manager of Medussa and then subsequently as its managing director [20]


The applicants submissions  that a genuine dispute arises on the evidence regarding the ostensible authority of Mr Dooley to make the representations in respect of Medussa being the contracting party. Counsel relied on Whelan J  in Flexirent Capital Pty Ltd v EBS Consulting Pty Ltd & Ors where the relevant principles in respect of ostensible authority were summarised as follows:

(a) Apparent authority operates as an estoppel preventing a principal from asserting that the principal is not bound by a contract where the principal has held the agent out as having authority.

(b) The holding out may be of a general character, arising for example out of an office or position in which the principal places the agent, or it may be specific to a particular transaction. The holding out may take the form of the setting up of an organisation or structure which presents to outsiders an appearance of authority in the agent.

(c) The holding out must be conduct by the principal, not the agent. A third party cannot rely upon the agent’s own representation as to authority. But this does not mean that the agent’s conduct is to be ignored. The principal may hold out the agent as having authority by permitting the agent to act in a certain way or to make representations about himself or herself, or the principal may hold the agent out by equipping or arming the agent with a document or thing which enables the agent to assert authority with the hallmark of authenticity.

(d) The holding out may also result from permitting an agent to act in a certain manner, or by equipping or arming the agent, or by a failure to take proper safeguards against misrepresentation by the agent.

(e) The principal’s conduct is to be assessed as a whole and in its totality.

As is his Honour’s practice he helpfully set out, at [7] & [8], the relevant principles relying on the Victorian Court of Appeal decision in Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq)  and per Dodds Streeton J in Powerhouse Australasia Pty Ltd v Viarc Pty Ltd.   In Malec the principles are summarised as:

  • on an application to set aside a statutory demand, the applicant is required only to establish a genuine dispute or offsetting claim.
  • the applicant is required to evidence the assertions relevant to the alleged dispute or offsetting claim only to the extent necessary for that primary task.
  • it is not necessary for the applicant to advance a fully evidenced claim. Therefore, the task faced by an applicant is by no means at all a difficult or demanding one.
  •  it is not necessary or appropriate for a court to engage in an in-depth examination or determination of the merits of the alleged dispute.
  • it is therefore not helpful to perceive that one party is more likely than the other to succeed or that the eventual state of the account between the parties is more likely to be one result than another.
  • the criterion of a ‘genuine’ dispute requires that the dispute be bona fide and truly exist in fact and that the grounds for alleging the existence of a dispute be real and not spurious, hypothetical, illusory or misconceived.
  • the dispute or offsetting claim should have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion. It must also have sufficient factual particularity to exclude the merely fanciful or futile. A rigorous curial approach is essential to the effective operation of the statutory scheme.
  • the court is not required to accept uncritically every statement in an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be, as it may not have sufficient prima facie plausibility to merit further investigation as to its truth.
  • the court is also not required to accept uncritically a patently feeble legal argument or an assertion of facts unsupported by evidence, although this should not be read as suggesting that the applicant must formally or comprehensively evidence the basis of its dispute or off-setting claim.

The relevant principles from Powerhouse were :

  • While it is not a very exacting standard it is legitimate role to consider evidence which ‘bears on whether or not the asserted dispute or off-setting claim is genuine’. Indeed, that is its necessary function.

The court found, at [33], that:

“..Mr Dooley was clearly held out as the general manager of the corporate group of which Medussa is a member who responded to demands by Nationwide to address the position regarding payment of the invoices. He is clearly a senior employee in the group of companies and he was permitted to represent himself as the general manager of this group of companies in his email signature template. His response was to identify Medussa as the relevant corporate entity in the group which was the contracting party with Nationwide.

Flowing from that the Court found that

  1. when the concrete was ordered from Nationwide, it could not have been on behalf of Ausform Constructions Vic Pty Ltd, which had been deregistered in 2015 or Ausform Constructions Pty Ltd, which was in liquidation[34]
  2. Dooley and John Likopoulos were armed by Medussa with ostensible authority in the communications they had with Nationwide  as to whom the relevant invoices should be directed to [34].
  3. Likopoulos while  revealing a “corporate labyrinth” did not explain how  Nationwide would have been made aware that it was contracting with Ausform Resources Pty Ltd particularly when those who had the ostensible authority to speak on behalf of the group of companies indicated that it was Medussa which was the contracting party but  they have not gone on oath to explain why they made such representations as they did when demand was being pressed for payment [35].

Medussa bore the onus of establishing that there is a genuine dispute.  The Court is entitled to have regard to the contemporaneous documents and the evidence of communications occurring at or about the time the relevant events occurred [36].

The Court found, at [37], that Medussa

has not in my opinion established the existence of a genuine dispute. Indeed I regard the position being put up by Medussa as being spurious and implausible. I do not regard the dispute which is raised by it as being genuine and I would dismiss the application with costs.


The applicant relied on a technical defence as to who the contracting party was and that any representations made were made without authority.  The facts got in the way of what was always going to be a difficult argument when the applicant operated through a group of companies, one now registered and another under liquidation.  The conduct of some of the applicant’s personnel was consistent with having the authority to act on behalf of Medussa.  It was telling that that personnel did not file an affidavit to address this critical question.  It is a common and sometimes fatal flaw to applications where the applicant chooses to rely on a general affidavit when affidavits of particular individuals who can give direct, specific evidence on key points is possible.  That can be a serious tactical error.

One Response to “Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275 (24 May 2017): section 459G of the Corporations Act 2001, application to set aside a statutory demand, genuine dispute”

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