The Victorian Court of Appeal in Yang v Finder Earth Pty Ltd [2019] VSCA 22 again highlighted the caution the courts are now taking in dealing with applications which determine a claim without trial such as summary judgment applications and default judgment applications. It is also a case which highlights the fact that pleadings matter. 

FACTS

Luo and Yang entered into the principal agreement, in October 2015 (the ‘agreement’) [8] for the stated purpose of:

to successfully obtain the 888 visa for Luo and her family to migrate to Australia and to be granted the Permanent Resident Visa (hereinafter referred to as ‘the Immigration Project’).

The agreement:

• was described as a partnership between Luo and Yang

Read the rest of this entry »

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

FACTS

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 Read the rest of this entry »

Judicial Registrar considered an application to wind up a company when administrators had been appointed shortly before the hearing In the matter of Polar Agencies Pty Ltd [2019] VSC 43.

FACTS

The plaintiff  a statutory demand served on the defendant by the plaintiff by post sent on 18 October 2018 [4].  The demand is in respect of debts totalling $558,508.56 for goods supplied by the plaintiff to the defendant and invoiced in the period March to August 2018. The defendant failed to comply with it [4] and made no application to set aside the statutory demand [5] thereby failing to comply with the demand in about midNovember 2018 which gave rise to a statutory presumption of insolvency under s 459C(2)(a) of the Corporations Act (the Act).

By an originating process filed on 16 November 2018 [3] the plaintiff applied for the defendant be wound up in insolvency pursuant to s 459P and s 459Q of the Act [1].

The proceeding first came on for hearing on 19 December 2018 where:

• the plaintiff appeared and the defendant did not.
• the Court was informed that negotiations were underway. Directions were made that any request for a further adjournment was to be supported by an affidavit to be filed and served by 4 February 2019,
• the hearing was adjourned to 6 February 2019 [6].

Read the rest of this entry »

The Supreme Court in Bensons Property Group Pty Ltd v Commonwealth Bank of Australia Ltd & Anor [2018] VSC 666 granted an order for preliminary discovery.  In considering the application the court considered the issues relating to Harman undertakings.

FACTS

Bensons,  a property developer,  engaged the Marcus Group Pty Ltd  “Marcus” as its builder on projects. On 19 April 2018, Bensons received an email, purportedly from the Marcus Group, directing that a payment due to it be made to a Commonwealth Bank of Australia account  (the CBA Account) [5]. On 19 April 2018, Bensons electronically transferred $917,900 to the Relevant CBA Account. As this was not an account maintained by Marcus Bensons was defrauded by person(s) unknown [6].

Bensons reported the fraud to Victoria Police and Read the rest of this entry »

The Victorian Supreme Court, per Matthews JR, considered an application to set aside a statutory demand in  Jolimont Heights Pty Ltd v Ryan [2018] VSC 678.

FACTS

Jolimont Heights Pty Ltd (‘JH’), made an application pursuant to s 459G of the Corporations Act 2001 (Cth) (‘Act’) by originating process dated 9 July 2018 to set aside a statutory demand dated 19 June 2018 (‘Statutory Demand’)  [1].

The application was made under s 459H &/or s 459J on the basis:

• there was a genuine dispute as to the existence of the debt
• due to some other reason, being that the Statutory Demand was defective  [2].

In support of its application, JH relied on Read the rest of this entry »

The Victorian Supreme Court in Re Ad Astra Institute Pty Ltd [2018] VSC 563 considered an application to set aside a statutory demand.  In dismissing the application the court undertook a useful analysis of both genuine dispute but more particularly the approach to be taken in preparing an offsetting claim.

FACTS

The defendant was engaged to develop QMS and other documentation (‘Training Documentation’) to meet the requirements of being a Registered Training Organisation (‘RTO’) and on the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’) [4].

In July of 2016, the plaintiff offered the defendant a contract for services, [4], with consultancy fees at:

• • an hourly rate (minimum of 3 hours) $575 per hour + GST

• daily rate (maximum of 8 hours) $2,800 per day + GST [5].

The note at the bottom of the consultancy fees provides:

Please note:The terms of all invoices are 14 days and all invoices will be charged according to the hourly rate plus GST (Goods and Services Tax). These rates are reviewed from time to time and may change. We will tell you of any changes as soon as practicable after a change occurs [6].

with a further stipulation :

As negotiated:It is agreed that IRM [the Defendant] will cap its fees payable for initial registration and CRICOS registration at AUD$100,000 inclusive of required ASQA fees.

The Agreement was set out to have been made on 25 July 2016 and executed by James Sackl on behalf of the plaintiff. At all material times Read the rest of this entry »

The Victorian Supreme Court in A G Coombs Pty Ltd v M & V Consultants Pty Ltd (in liq) [2018] VSC 468 considered and dismissed a plaintiffs’ application for injunctive relief to prevent an application under section 459 of the Corporations Act 2001 being made.

FACTS

On Friday 15 June 2018, the plaintiffs sought urgent interlocutory relief and final relief by way of an injunction to enjoin the defendant from making an application under s 459P of the Corporations Act 2001 (Cth) to wind up each of the plaintiffs in insolvency in connection with statutory demands Read the rest of this entry »

In Re Mossgreen Pty Ltd (in liquidation) [2018] VSC 230 Robson J considered the application of the Australian Consumer Law as against the operation of the Corporations Act and powers of liquidators.

FACTS

The auction house operating through the entity Mossgreen Pty Ltd (in liq) (‘Mossgreen’) went into liquidation on 4 May 2018. Administrators had been appointed on 21 December 2017 [1].

As an auctioneer, Mossgreen held a large quantity of goods (the ‘consigned goods’) belonging to other people (the ‘consignors’) described as being:

(a) goods delivered to it to be auctioned, but which had not yet been auctioned;

(b) goods delivered for auction, but which had failed to sell and which were awaiting collection by their owners; and

(c) goods which, although successfully sold at auction, had not been collected by the successful bidders [2].

which were stored in  three warehouses [3].

Sobraz Pty Ltd (‘Sobraz’), the plaintiff, is the landlord of one of the warehouses, situated at 1 Torteval Place, Clayton [3].

The administrators’ stocktake of the goods cost in excess of $1 million [4]. The administrators sought to levy each consignor with the sum of $353.20 per lot as a condition for releasing the lot to the consignor, asserting an equitable lien [5]. The administrators application for Read the rest of this entry »

Justice Kennedy in In the Matter of Innovateq Pty Ltd [2018] VSC 124 considered an application under section 237 of the Corporations Act for leave to commence proceedings in a derivative action.  Judgments regarding leave applications are relatively uncommon.

FACTS

The proceeding involved two applications:

• leave to the plaintiff pursuant to s 237 of the Corporations Act 2001 (Cth) (Act) to commence court proceedings in the name of Innovateq Pty Ltd (ACN 132 372 242) (Company) against Mr Daniel Phillips (a former employee) and two companies associated with him, Certeq Pty Ltd and Certeq NZ Pty Ltd (Certeq) (Leave Application); and
• for an order that the Company be wound up (Winding Up Application).

The Company, in its capacity as trustee for the Read the rest of this entry »

In Johnston v Holland (No 2) [2017] VSC 597 Dixon J heard and upheld an appeal from a decision of Associate Justice Derham in Johnston v Holland [2017] VSC 448.

FACTS

The plaintiff, Johnson,  appealed the judgment of Associate Justice Derham refusing an application brought under s 23B of the Limitation of Actions Act 1958 (Vic) (‘the Act’):

1. to extend the limitation period;
2. to permit him to join Wayne Murray as a second defendant to a proceeding; and
3. to amend his statement of claim.

Johnson is the principal of The Peninsula School in Mount Eliza, Victoria and the defendant, Holland, is a former director of marketing at the School and a parent of students or former students who attended the school [2].

Johnson is suing for damages for defamation arising from:

• a series of ‘tweets’ (to approximately 26 followers) and
• an email (to at least 30 recipients) published on 2 April 2015 to the staff, parents and students of the School.

Johnson proposed to Read the rest of this entry »