C Tina Pty Ltd v Warners Electroplating Pty Ltd [2019] VSC 66 (18 February 2019): Application to set aside statutory demand, s 459G Corporations Act 2001

February 21, 2019 |

In C Tina Pty Ltd v Warners Electroplating Pty Ltd [2019] VSC 66 Associate Justice Gardiner set aside a statutory demand.


On 1 October 2018, the defendant (‘Warners’) served on the plaintiff (‘C Tina’):

  • a creditors statutory demand for payment of debt; and
  • an affidavit in support sworn by Grant Warner on 26 September 2018 [1].

The Demand related to two invoices totalling $166,332.10 for work and labour done and materials supplied [2].

On 19 October 2018, C Tina made application by originating process to set aside the Demand [3].

The application is based on the ground that C Tina has a genuine dispute in relation to the debt in that it never contracted with Warners and that the work for which Warners seek payment was pursuant to a contract between Warners and 104 Holdings Pty Ltd (ACN 169 723 599) (‘104 Holdings’) [5].

Vouzas, on behalf of C Tina,  deposed that:

  •  104 Holdings had two shareholders with equal holdings, C Tina and Ms BarhamFloreani.
  • Vouzas’ mother, Christina Vouzas, and Ms BarhamFloreani were the directors of 104 Holdings, which was the trustee of the 104 Canterbury Unit Trust.
  • 104 Holdings was the registered proprietor of the property at 104 Canterbury Road, Middle Park from 6 November 2014 (‘the Property’).
  • 104 Holdings was incorporated for the purpose of purchasing and developing the Property (‘the Development’) [8].
  • he managed the Development and engaged tradespeople o
  • C Tina funded the Development and lent monies to 104 Holdings for which it took security over the Property [8].
  • in or around early 2015 he told Grant Warner, that:
    • he was project managing the Development
    • his family had a financial involvement,
    • the project was a partnership with a local chiropractor and his wife
    • they required a quotation for steel work [9]
  •  steel requested by Vouzas was supplied by Warners with the invoices made out to Vouzas personally
  •  on ‘a couple (sic) occasions’ when he met with Warner he asked him to re-address the invoices to 104 Holding [10]
  •  during the course of 2017 Warner called him ‘a couple (sic) times’ requesting payment, and  Vouzas said the Development had stalled, 104 Holdings had no money to pay until issues were resolved between the project partners [12].
  • on Thursday, 28 December 2017, Vouzas sent a text message to Warner in which he stated, relevantly:

If you have some time over the next few weeks can we do lunch?

Let me know?

In the interim, can you calculate;

– what 104 owes you?

– how much more to finish the project?

  • the reference to ‘104’ in the email is a reference to 104 Holdings.
  • on 31 January 2018, Vouzas emailed Warner suggesting that it may be easier for him to requote the whole job from scratch and then deduct what had been paid and invoiced to date.
  • he and Warner met at the Property and then had lunch where he again told Warner he was to invoice 104 Holdings [14].
  • on 4 April 2018, [15], Vouzas emailed Warner stating:

No 3 and 4 not critical, but would be great to have a letter advising the invoices raised for 104 total $ and the payments made total.

and that the reference to ‘104’ is shorthand for 104 Holdings [16].

  • on 17 April 2018 Warner emailed Vouzas Warner invoices addressed to C Tina, not 104 Holdings
  • on 6 June 2018, Vouzas replied to that email, stating ‘the invoices need to be made out to 104 Holdings Pty Ltd, 104 Canterbury Rd, Middle Park VIC 3206’.
  • on 4 September 2018,  Vouzas emailed Mr Warner requesting he make the invoices out to 104 Holdings [18].

Warner deposed that:

  • he is the sole director of Warners.
  • Warners provides and installs structural steel framing for commercial and residential buildings, including new constructions and properties undergoing renovation [23].
  • in early 2015, Vouzas contacted him and said that he and his mother, Christina Vouzas, had purchased the property, which they were going to renovate [24].
  • Vouzas advised that Simon Floreani, who operated a chiropractic business in Middle Park, would be a tenant, together with some local dentists.
  • Vouzas went to some lengths to convince him that there were financial resources available through his mother’s company, C Tina, and used words to the effect that, ‘my mother’s company C Tina has plenty of money and would be able to meet all the costs of the steel works’.
  • he was not aware of any other companies which were connected to Mr Vouzas or his mother [24].
  • he placed a great deal of reliance on Vouzas’ representations that Warners would be paid for the steel works that it would be undertaking [25]
  • Vouzas provided him with the architectural plans for the Development & a structural engineer provided all the necessary engineering computations for the fabrication of the steel works.
  • in the course of discussions, Vouzas always referred to the development as either ‘104’ or ‘104 Canterbury Road’ and he was not aware that the owner of the Property was in fact 104 Holdings in its capacity as trustee for the 104 Canterby Unit Trust [26] .
  • he was first advised of the existence of 104 Holdings in an email from Vouzas on 6 June 2018, but was not provided with any specific details [26].
  • he did not met Ms Barham-Floreani, was not aware that she was also a director of 104 Holdings and  was not aware of her involvement in and her ownership of the fifty per cent underlying interest in the Property [27].
  • he had not yet met Christina Vouzas although he ‘may have briefly met her in 2012 whilst visiting her home at 372 Danks Street Middle Park’, although he cannot recall doing so [27].
  • he did not discuss with the directors of 104 Holdings any contractual arrangement with Warners and there are no written agreements between Warners and 104 Holdings.
  • had not received any payment from 104 Holdings for any reason, including the payment of invoices, and there has been no written communication between the two companies in relation to the steel works [28].
  • that after reviewing the plans in early 2015 for the Development and having carried out some preliminary costings, he contacted Vouzas and advised him of his estimated cost to complete the works in accordance with the plans.
  • although there was no formal contract for the works he asserted that it was agreed that Warners would progressively render invoices as the various stages were reached &there was no mention of 104 Holdings [29].
  • because of his omission to advise his accounts section that the initial invoices should be made out to C Tina, the invoices were made out to Vouzas [30].
  • Warners was ‘not a particularly sophisticated small business and  worked on the basis of, quoting the work to do the work and expect to be paid for the work.’ [30]
  • because the initial invoices directed to Vouzas were subsequently paid, he did not send an amended invoice in the name of C Tina. These invoices were  paid by TVG Shop Pty Ltd, a company associated with Christina Vouzas, although Warner was not aware of TVG Shop Pty Ltd at the time [31].
  • Warners continued to do works, including the framing up and installation of the lift shaft which was a very complex and difficult installation.
  • he elected to wait until he had completed all the works to ensure that he had accounted for all costs, some of which were unknown to him until the job was completed before he rendered an invoice [32].
  • in or about January 2017, Vouzas advised him that the local Council had put a stop works notice on the Development but Vouzas met  him and reassured him that it was only a temporary issue and that the Development would be continuing.
  • after several months he gained access to the site to be able to calculate the costs of his final invoice, [33]
  • as his concerns were increasing at this stage as to the likelihood of being paid and the job continuing, he:
    • took a closer interest in correctly pricing the works done to date and the addressee of the invoice.
    • he ensured that the final invoices were addressed to C Tina as that was the company  Vouzas initially represented to him would be paying for the works [33].
  • in April 2018, Warners issued the two final invoices totalling $166,332.10 to C Tina for the balance of labour and materials outstanding on the 104 Canterbury site [34].
  • despite requests for the invoices to be paid, C Tina has not made any payments [34].
  • there has been no communication from 104 Holdings or the directors of 104 Holdings acknowledging the debt or agreeing to pay the debt [35].
  • he has become aware that  Vouzas:
    • has been prosecuted in the Melbourne Magistrates’ Court on 29 January 2019 in relation to the development with the basis of the charge being to ‘carry out work without a building permit’ [35].
    • was an undischarged bankrupt during the period of time in which he was engaging Warners. [35]
  • on 17 September 2018, Westpac Bank appointed a receiver and manager to 104 Holdings.
  • Warners has been requested by the receivers to remove any remaining equipment from the Property as it will be preparing the Property for sale [36].
  • regarding Vouzas’ assertion that he requested  Warner to readdress the initial three invoices to 104 Holdings he says that he was not aware of the existence of 104 Holdings & if he had been he would have been alerted to make some enquiry as to who 104 Holdings was and who was behind it [37]
  • he denied any reference to 104 or 104 Canterbury Road was in fact a reference to 104 Holdings and stated that he was only made aware of the existence of 104 Holdings in a text message from Vouzas on 6 June 2018 [38]
  •  invoices provided by other subcontractors who worked at 104 Canterbury were not made out to 104 Holdings but ratherVouzas, Finer Advisory, or Finer Advisory Developments Pty Ltd [39].
  • he denied Vouzas’ assertion that he told Warner at a lunch at the Middle Park Hotel that he was to invoice 104 Holdings [40]

Barham Floreani, providing an affidavit in support of the respondent, deposing that:

  • she was a joint director, with Christina Vouzas, of 104 Holdings;
  • the Development:
    • was financed by a mortgage provided by the Bank of Queensland in November 2014 for approximately $2.6 million.
    • involved the building being renovated to accommodate the chiropractic clinic conducted by Simon Floreani and herself at 282 Richardson Street, Middle Park.
  • the relocation to the Property was to occur after the completion of the renovations
  • the practice was to negotiate a long term lease for the premises.
  • the 104 Canterbury Trust is held as to fifty per cent by:
    • Christina Vouzas and
    • Ms BarhamFloreani as trustee for the Floreani Property Trust.
  • Vouzas:
    • represented to her that:
      • he was an experienced developer and
      • would be able to manage all aspects of the planning and renovations, including the necessary permits, the construction and dealing with subcontractors.
    • told her that he was an undischarged bankrupt at the time and as a consequence, everything in relation to the works he was undertaking, which included the payment of accounts and engaging contractors, would be undertaken under his mother’s company, C Tina [42].
  • Vouzas advised:
    • the likely cost of renovating the Property was in the vicinity of $1.5 million which was subsequently increased to $2 million after factoring in two additional apartments.
    • Vouzas advised her that any funding C Tina would provide for the renovations works would be subsequently reimbursed to C Tina [43].
  • she was highly reliant on Mr Vouzas to attend all matters in relation to the Development.
  • she and her husband had known Christina Vouzas for approximately 20 years and Christina Vouzas had a 50 per cent percent interest in the Development through her 50 per cent interest in the 104 Canterbury Unit trust.
  • Vouzas advised that C Tina would be undertaking the Development as it had provided their side of the funding up to that point.
  • Vouzas had said words to the effect that ‘it was necessary to utilise the C Tina building company to protect his mother and myself’ [44].
  • while Vouzas did not present any building contracts he assured her that he would be able to engage the contractors directly (which she believed to be through C Tina) and would manage the Development on an efficient cost basis and deliver the Development completed on a timely basis [45].
  • in about April 2016, Vouzas presented her with a loan agreement to be executed with a purported level of unreimbursed costs by C Tina in relation to the Development. It was for advances for the Development with an upper limit of $2.5 million together with a guarantee to be provided by Ms Barham-Floreani. There was also a provision for C Tina to lodge a caveat on her home at Mount Macedon.
  • Vouzas controlled the bank account and all administrative processes of 104 Holdings Pty Ltd.
  • in August 2016, the Bank of Queensland mortgage was refinanced by Westpac following negotiations conducted by Vouzas which involved a payment to C Tina for $1.4 million out of the total Westpac refinance facility of $4.3 million.  Approximately $4 million was drawn down upon the facility after approximately $2.6 million was paid out to the Bank of Queensland and payment of the $1.4 million to C Tina [47].
  • she has been the subject of demands from C Tina for a debt of approximately $2.3 million in or about July 2017 and she is engaged in litigation concerning this with C Tina in this Court. She details various monies advanced or reimbursed to C Tina in relation to the Development which I do not consider to be of present relevance in this proceeding [48].
  • Vouzas does not hold, nor did he ever hold, any directorship in 104 Holdings.
  • Vouszas is not a registered builder and he did not have authority, written or implied, to incur any debts on behalf of 104 Holdings.
  • she has not met  Warner and  that 104 Holdings did not enter into any contract with Warners [49].
  • there has been no written communication between Warners and 104 Holdings in relation to any works undertaken at the Property [49].
  • there were no meetings, discussions, emails, board minutes or correspondence of any type of which is aware that indicates in any way a contractual relationship between 104 Holdings and Warners [49].
  • iner Advisory Development Pty Ltd was a company of which  Vouzas’ father, Evangelos, was director & in October 2014 Vouzas continued to operate that company including transacting its bank account as an undischarged bankrupt and without the company having a registered director before its deregistration on 20 June 2017 [50].



Vouzas argued that:

  • it was apparent ‘from the description of the invoices that the works were done at and for the benefit of 104 Holdings and the property’.
  • at no time did he tell Warner orally or in writing that he was to invoice C Tina for work done by Warners at the Property or say to him that C Tina was responsible for paying the invoices.
  • he is informed by Christina Vouzas that she did not speak to Mr Warner in relation to the work done at the Property or authorise him to invoice C Tina for the work done at the Property [19].

The court was not overly impressed by Barham-Floreani’s affidavit describing it as relating to matters of peripheral relevance to the question for consideration in this case.

The court in summarising the applicable principles applying the principles in:

  •   Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) as, at [55]:
    • in an application to set aside a statutory demand, the applicant is required only to establish a genuine dispute or offsetting claim.
    • there needs to be evidence relevant to the alleged dispute or offsetting claim only to the extent necessary for that primary task & not necessary for the applicant to advance a fully evidenced claim.
    • 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.
    • an application alleging a genuine dispute or offsetting claim is akin to one for an interlocutory injunction and requires the applicant to establish that there is a ‘plausible contention requiring investigation’ of the existence of either a dispute as to the debt or an offsetting claim.
    • 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. 
    • there must be sufficient factual particularity to exclude the merely fanciful or futile.
    • except in such extreme cases, the court should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on by the applicant to set aside a statutory demand.
  • Citation Resources Ltd v IBT Holdings Pty Ltd,  as follows:
    • there must be a ‘plausible contention requiring investigation’. It raises the same sort of considerations as the ‘serious question to be tried’ criterion applicable to interlocutory injunctions.
    • the company will fail in that task only if it is found upon the hearing of its s 459G application that the contentions upon which it seeks to rely in mounting its challenge are so devoid of substance that no further investigation is warranted.
    • the Court is not called on to determine the merits of, or to resolve, the dispute.
  • In Spacorp Australia Pty Ltd v Myer Stores Ltd , at [57] as:
    • except in a case in which it is as plain as a pikestaff that there is no debt (where bluntness may be in the interests of both sides), judges should be at pains to perform the admittedly delicate task of disposing of that question without expressing a view on what we have called the ultimate question

The court in considering the application noted that:

  • despite the relatively significant sums of money involved, there are very minimal contemporaneously generated written communications and no formal contractual documentation to support the respective positions put by C Tina and Warners [58].
  • there was no dispute that Warners performed its obligations for which it was contracted but the evidence in regard to the identity of the party with whom it contracted is nebulous.
  • Vouzas asserts that he was doing so as the disclosed principal of 104 Holdings while Mr Warner, relying on an alleged oral assertion as to C Tina’s purported financial resources contends that Warners was contracting with C Tina [58].
  •  104 Holdings had a receiver appointed to it on 17 September 2018 and it is probable that it would not have sufficient assets to pay the debts the subject of the demand [58].
  • it was “somewhat remarkable” that there was no formal documentation which included identification of the party with whom Warners was contracting [59].
  • Barham-Floreani had no dealings at all with Warners and the other director of 104 Holdings, Christina Vouzas, has not sworn an affidavit in the proceeding [60]

The court regarding the case as being finely balanced [62] noting that:

  • While C Tina bore  the onus of establishing  a genuine dispute his Honour found its case  vague and unsupported by contemporaneously generated documentation & and considering Vouzas’ evidence to be “somewhat shadowy”. 
  • there there was a plausible contention requiring investigation in this matter as to the identity of the party with whom Warners contracted [62]
  • he did not consider the scenario presented by C Tina as being so devoid of substance that no further investigation is warranted.
  • there was no evidence as there often is in these types of applications put on by Warners which overwhelms C Tina’s case,
  • Warners did not demonstrate that C Tina’s case is implausible, devoid of substance and not warranting a conventional inter partes trial [62].
  • while he had some misgivings concerning the evidence relied upon by C Tina he was not entitled to come to a conclusion that the position being put by C Tina is spurious or implausible.
  • the authorities indicate the court should not embark on an inquiry as to the credit of a deponent whose evidence is relied upon by an applicant to set aside a statutory demand save in extreme circumstances

The court ordered that the statutory demand which was served on C Tina by Warners be set aside.


Disputes between contractors and builders/developers can be factually very complex. It is not uncommon for the developer to operate through multiple companies, sometimes for good reason, some times for less obvious reasons The court struggled with an absence of documentation one would normally expect in a building case, starting with a contract.  The Applicant was able to show through material from a range of sources that there was some basis for claiming a genuine dispute, that the contracting party was not the subject of the statutory demand.  That said the court was not overly impressed with the applicant’s approach.  What this case highlights that the threshold is quite low to establish a genuine dispute and that the respondent needs to do all that it can to provide decisive evidence to cast real doubt on the applicant’s claim.  Here the respondent took issue with much of what the applicant alleged but was not able to land a decisive blow.  That left the court with little option but to consider the applicant’s evidence through the prism of whether there was a genuine dispute.








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