ACN 110 769 929 (formerly known as Rent & Buy Pty Ltd (in liq) ) & Anor v RV Investments

County Court of Victoria|2014-04-11

**1 Rent & Buy Pty Ltd ("Rent & Buy") was a company run by its directors and shareholders, Mykola and Mathew Denysenko. The company went into liquidation on 1 April 2010 upon the petition of the Deputy Commissioner of Taxation. The liquidator Mr Glenn Crisp ("the liquidator") has brought the proceeding to recover money alleged to be owing by the defendant, RV Investments (Aust) Pty Ltd ("RV Investments").

2 RV Investments has a sole director and shareholder, Ms Rose Villella. Ms Villella's partner is Mr Bohdan Denysenko, the father of Mykola and Mathew. The liquidator makes two claims:**

to recover five payments totalling $31,900 made by Rent & Buy to RV Investments between 18 September and 2 November 2009. It is alleged that the payments were made by Rent & Buy without any consideration being given by RV Investments and therefore that restitution should be made;

3 RV Investments denies the claims on the following bases:

although it admits that Rent & Buy made the payments to it, RV Investments alleges that they were repayments by Mykola and Mathew Denysenko of part of the sum of $250,000 lent to them by Rose Villella in about 2008;
as to the invoice of $242,000, various defences have been raised at different times. On the last day of the trial, RV Investments, by leave, amended its defence to assert that:
1. the goods the subject of the invoice were not of the quality expected and did not have a market value of $242,000;
2. to resolve the dispute that arose, Rent & Buy entered into an agreement with RV Investments whereby RV Investments accepted delivery of only a small proportion of the goods and agreed to make payments to Rent & Buy's creditors to satisfy debts up to the amount of $30,000.

**4 The plaintiffs' only witness was Ms Renee Di Carlo, a registered liquidator and chartered accountant, who has had the care and conduct of the liquidation on behalf of the liquidator. The defendant relied upon evidence of Mr Bohdan Denysenko and Mr Robert Zaia, the former accountant of Rent & Buy and, for a short period around September 2009, also of RV Investments.

5 Ms Villella was not called as a witness, without explanation by the defendant. Mykola and Mathew Denysenko were also not called as witnesses. Ms Di Carlo said that the liquidator had been unable to contact either of them, and neither had filed a statement of affairs in relation to the liquidation of Rent & Buy. Mr Bohdan Denysenko gave evidence that one son lived in Queensland and the other son in Melbourne. He said he did know the address of the son in Queensland. The son in Melbourne used Mr Bohdan Denysenko's address, although he usually lived with a girlfriend. He was presently in a hospital at Box Hill.

6 Mr Bohdan Denysenko was an unsatisfactory witness. He had previously given evidence at a public examination before a Deputy District Registrar of the Federal Court of Australia on 8 December 2011 in relation to the liquidation of Rent & Buy. There were inconsistencies between his evidence at the examination and at the trial of this proceeding. I have not, without independent support, accepted the evidence of Mr Denysenko.**

**7 RV Investments admits that five payments were made from Rent & Buy's bank account on the dates alleged. The bank records of Rent & Buy and of RV Investments show the following entries:

c. 19 October 2009 - internet transfer of $7,000 (with the notation on the Rent & Buy bank statement, "rbpayment");

d. 23 October 2009 - internet transfer $8,000 (with the notation on the Rent & Buy bank statement, "ds");

e. 2 November 2009 - internet transfer $1,900 (with the notation on the Rent & Buy bank statement, "rent");

No evidence was given as to the meaning of these notations.

8 A document is in evidence headed "Agreement" and dated August 2008. The document records the following:**

"It is agreed that Rose Villella lend the sum of...$250,000 to Rent & Buy Pty Ltd and G. & D. Performance Tuning Pty Ltd and Mykola and Mathew Denysenko.

It is further agreed that the loan will be guaranteed by:

Mykola Denysenko;
Mathew Denysenko;
Rent & Buy Pty Ltd;
G. & D. Performance Tuning Pty Ltd.

The interest will be 10% and the loan is to be repaid in (5) five years.

That if the companies (G. & D. Performance Tuning Pty Ltd and Rent & Buy Pty Ltd) or Mykola Denysenko and Mathew Denysenko cannot pay the loan, that Rose Villella can take over the business known as G. & D. Performance Tuning Pty Ltd and Rent & Buy Pty Ltd and its assets".

**9 The document was signed by Mykola and Mathew Denysenko, noting that each signed "in his own capacity and as director of G. & D. Performance Tuning Pty Ltd and as director of Rent & Buy Pty Ltd". Rose Villella also signed the document, as did Bohdan Denysenko, as "witness".

Rose Villella's father had lent Ms Villella and him $250,000 so that money could be advanced to Mykola and Mathew;
Mykola and Mathew were in financial difficulties because of their businesses;

Ms Villella advanced the sum of $250,000 to Mykola and Mathew in about August 2008 when the agreement was executed;

Mykola and Mathew made some repayments pursuant to the loan agreement, including five cheques totalling about $50,000, and later the five bank transfers totalling $31,900;
the payments totalling $31,900 were made as Mykola and Mathew were able to and were to cover interest under the loan;
by about mid-2009, the financial difficulties of Mykola and Mathew were critical and Mr Bohdan Denysenko and Ms Villella took over the business of Rent & Buy which was conducted at premises in Dandenong;
in late 2009, Mr Bohdan Denysenko and Ms Villella commenced paying the creditors of Mykola and Mathew and of Rent & Buy and G. & D. Performance Tuning Pty Ltd. They were not aware that those companies had been liquidated and have paid out sums totalling about $650,000 for the debts of Mykola, Mathew and their companies;
between 18 August 2009 and 27 September 2010, at least $258,525.38 was paid to the creditors of Mykola, Mathew and the companies;
Ms Villella and Mr Bohdan Denysenko have personally paid back the money lent to Ms Villella by her father.

**11 Plaintiffs' counsel, Mr Tatarka, submitted that there was no credible evidence that the payments were made in respect of a loan. He submitted that in the context of the severe financial difficulties of Mykola and Mathew and their companies, each transfer to RV Investments was simply a case of the Rent & Buy bank account being "emptied out". Only a few pages of the Rent & Buy bank statements are in evidence, generally only showing transactions for one day extra to the actual date of the transfer. There were a number of transactions recorded for each day on the statements, mostly credits. Mr Tatarka's submission that money was being "sucked out" of the account is not supported by the bank statements or any other evidence.

12 I consider that, notwithstanding the serious reservations I have about Mr Bohdan Denysenko's evidence, it is likely that Ms Villella had lent money to Mykola and Mathew. The "loan agreement" dated August 2008 was not challenged in any meaningful way by Mr Tatarka. The document was provided to the plaintiffs' solicitors by the defendant's solicitor by letter dated 4 October 2012.

13 It is clear in my view that Mr Bohdan Denysenko and Ms Villella were aware in mid-2009 of the serious troubles being experienced by Rent & Buy. It is likely this caused them to take over the business. I do not, however, accept that Mr Denysenko and Ms Villella would have been unaware of the approaching liquidation. Nevertheless, this is not a preference action. All the transfers, except for the last transfer of $1,900, were made more than six months before the liquidation.

14 The causes of action relied on by the plaintiffs require proof that there was no consideration provided, or that there were other circumstances which require the defendant to make restitution. The loan agreement purported to be a loan of $250,000 to all the borrowers, and each borrower (including Rent & Buy) "guaranteed" repayment of the loan and pledged its assets and business. I consider that the plaintiffs have not satisfied the onus upon them to establish the elements of the cause of action they rely on and, accordingly, the claim for repayment of the sum of $31,900 must fail.**

Goods sold and delivered evidenced by invoice dated 10 September 2009

15 The tax invoice dated 10 September 2009 for $242,000 was issued by Rent & Buy to RV Investments. The accountant, Mr Zaia, said that he had advised Mykola and Mathew about the transaction but had not drafted the invoice. Mr Bohdan Denysenko's evidence was as follows:

Rent & Buy were in financial difficulties. He and Ms Villella took over the business at least a week or two before receiving the invoice. They "took over" the business and inspected everything that was left at the premises;
it was agreed that RV Investments would purchase certain goods comprising products, including engine oils and various fluids, and parts, including engines, gearboxes and smaller items;

the invoice was delivered to RV Investments at about the date it bears;

within days, RV Investments had delivered the invoice to its accountant (not Mr Zaia). The company's BAS statements were submitted on an accruals basis and the invoice was included for the quarter ended 30 September 2009 so that an input credit could be claimed for the $22,000 GST that was included in the invoice;
a short time after the invoice (perhaps two weeks), there was a meeting at the Rent & Buy premises in Dandenong. Mr Bohdan Denysenko said that Mykola, Mathew and Mr Zaia (as his sons' accountant), and perhaps Ms Villella, were present at the meeting. An argument developed. Mr Bohdan Denysenko said that he told his sons that the values for the goods on the invoice were inflated and he would only "accept delivery" of some of the goods, limited in value to about $30,000;
it was then or shortly afterwards agreed by the Denysenkos that RV Investments would pay creditors of Rent & Buy up to a total amount of $30,000;
Mr Bohdan Denysenko asked his sons to remove the goods that had not been accepted. This was not done and at a later date the goods were removed to RV Investments' factory at Yannathan.

**16 Mr Zaia said that he was at the meeting in September at the request of Mykola and Mathew, although his role was unclear. He thought that Mr Bohdan Denysenko and his two sons were present. He gave evidence that a row developed between the Denysenkos. He did not recall what the row was about and he left the premises soon after it started.

17 The liquidator was aware in November 2010 that Mr Zaia's accountancy firm, Zaia, Arthur & Associates Pty Ltd, was Rent & Buy's accountant. A phone call by the liquidator's office to Mr Zaia's firm on 26 November 2010, confirmed the firm's facsimile and postal addresses. Correspondence with the firm requesting the delivery of the books of account of Rent & Buy to the liquidator pursuant to the Corporations Act 2001 (Cth) was apparently ignored. The correspondence, which the firm did not respond to, was sent as follows:**

letter dated 26 November 2010;
facsimile dated 11 January 2011;

**18 Mr Zaia confirmed in his evidence that the correspondence was sent to the correct addresses. The facsimiles had appropriate transmission advices. Mr Zaia said he was the person in the firm responsible for Rent & Buy's accounting work. He was unable to offer any satisfactory explanation as to why the correspondence was not responded to. Mr Zaia was unable to recall many matters about which he was questioned. I do not consider that his evidence should be given any weight.

19 The Australian Taxation Office ("ATO"), probably in 2011, conducted an audit of RV Investments for the period September 2009 to December 2010. The audit included the claim for a GST credit of $22,000 in respect of the Rent & Buy invoice for $242,000. RV Investments maintained that it had paid the invoice by making payments to the creditors of Rent & Buy of at least the sum of $242,000.

20 RV Investments appealed from the determination of the Australian Taxation Office. The appeal was recently decided by the Administrative Appeals Tribunal in the appeal of RV Investments (Aust) Pty Ltd as Trustee for the RV Unit Trust v Commissioner of Taxation [2014] AATA 158.

21 At paragraph 98, the Tribunal stated its conclusion in relation to the disputed invoice from Rent & Buy, as follows:**

"As for the sum of $242,000.00 shown on the invoice for Rent & Buy, the items purchased were also described as "Goods as per stock". Again, he [Mr Bohdan Denysenko] and his sons worked out the figure. RV Investments did not pay Rent & Buy directly. Instead, Mr Denysenko thought, it made 234 payments over the next 12 months to creditors of Rent & Buy. He could not be sure unless he saw the documentation but he did agree that RV Investments paid the invoice from Rent & Buy by paying its creditors. The Commissioner has accepted that the 234 payments totalling $233,860.00 were made by RV Investments in respect of the invoice from Rent & Buy for $242,000.00".

22 Following the appointment of the liquidator to Rent & Buy in April 2010, investigations revealed the invoice for $242,000. On 12 January 2011, the liquidator sent a letter of demand to RV Investments in relation to the invoice. As a consequence, Mr Bohdan Denysenko telephoned and spoke to Ms Di Carlo, perhaps giving, or his name being mistakenly taken, as Bohdan Villella. Ms Di Carlo's file note records:

"Mr Villella said that they [ RV Investments] paid creditors of Rent & Buy as consideration for the sale...he said that they had to provide proof to the ATO and we [the liquidator] can get it from them...I asked Mr Villella if he recalled who the owners/persons who he was dealing with regarding the sale and if he was able to advise me of their names. Mr Villella advised he doesn't recall as it was over a year and a half ago. I asked Mr Villella that they would need to provide evidence of payment of these creditors. Mr Villella said that there were at least 100 creditors".

**23 The liquidator followed up with a letter on 31 January 2011 asking RV Investments to "provide to me within 14 days evidence of the creditors of...Rent & Buy Pty Ltd paid by RV Investments". There was no response. Summonses for examination were issued by the liquidator dated 5 August 2011 for Bohdan Denysenko and Rose Villella to be examined before a Registrar at the Federal Court of Australia concerning the affairs of Rent & Buy. Both Mr Denysenko and Ms Villella were required to bring a number of documents, including "all documents and records in relation to payments made by R. V. [Investments] to creditors" of Rent & Buy.

24 Mr Denysenko and Ms Villella produced to the liquidator at the Federal Court a list of the creditors of Rent & Buy which RV Investments alleged they had paid. The total of the debts paid was $258,525.38. The document had a handwritten heading "Paid on behalf of G. D. Tuning P/L, Rent & Buy P/L".

25 During his public examination on 8 December 2011, Mr Bohdan Denysenko made the following statements:**

he had "instigated the negotiation" in connection with the invoice;
"We gave them money, we paid their creditors, and we wanted some stock or some security for the money. My sons prepared a list of what they believed they had in stock. We never checked it: we - because of my sons' family we just accepted it, and they we didn't receive most of it. But we paid, I believe, $170,000 to creditors on their [presumably his sons'] behalf";

"We haven't even received three-thirds of it ... most of these items are sitting in the sheds. And if you want them, you're quite welcome to them";

he was asked, "Who owns those items?". He replied, "As far as I'm concerned, we own them. We paid for them";
he was asked how the invoiced figure of $220,000 plus GST was calculated. He said, "I asked my sons in relation to the stock. They valued it, they put the figure in";
he was asked which of the items in the invoice did RV Investments "actually receive?. He went through many of the items in the invoice ascribing lesser values than set out in the invoice and then said, "Okay, so basically, what we got out of that, if we were lucky, might total $40,000";
Mr Denysenko said, "My sons went broke in July or August of 2009, when I - we started before that, paying the bills";
he admitted that one of the payments included in the list prepared by RV Investments' accountant was for his "son's health insurance" and was not connected with Rent & Buy. He said that a separate document had been produced by RV Investments which distinguished between the payments relating to Rent & Buy and the payments relating to someone else.

**26 Subsequently, an amended list was provided by RV Investments to the liquidator. The list had fewer items and totalled $163,101.25. In addition, RV Investments supplied cheque butts relating to the payments made by cheque in the list. Some cheque butts had the notation "R&B" for Rent & Buy or "G&D" for G&D Performance Tuning Pty Ltd. Most cheque butts had no such notation. A number of cheque butts recorded an invoice number.

27 An analysis of the amended list and the cheque butts showed that the amount of the cheque butts with the notation "R&B" totalled $9,142.51. The payments made prior to or on 1 September 2009, totalled $4,181.80. The payments made after 10 September 2009 (the date of the invoice) totalled $4,960.71.

28 About half of the payments listed totalling $9,142.51 had not been included in the earlier list produced at the public examination. The amounts on the cheque butts with the notation "G&D" totalled $34,259.83. No invoices or other documentation with reference to goods or services being supplied to Rent & Buy were produced to the Federal Court or to the liquidator.

29 The response of RV Investments to claims that it was indebted to Rent & Buy for the invoiced amount of $242,000 has varied from time to time as follows:**

in the telephone conversation between Mr Bohdan Denysenko and Ms Di Carlo on 18 January 2011, in response to the liquidator's letter of demand, "Mr Villella said that they paid creditors of R&B as consideration for the sale";
at the public examination in the Federal Court on 8 December 2011, Mr Denysenko said that RV Investments did not receive "most" of the items listed in the invoice, that their value "might total $40,000" and that RV Investments had paid $170,000 to creditors on his sons' behalf;

in the defence dated 2 August 2012 filed in response to the Statement of Claim in the proceeding, it was asserted that:
- (i) "the goods were not delivered to the defendant";
- (ii) whilst an invoice was issued by Rent & Buy to RV Investments, RV Investments "did not agree to pay the invoice nor [to] make any payment against or in respect of the invoice";

on 1 May 2012, the defendant's solicitors wrote to the plaintiffs' solicitors notifying the liquidator that he had one month to collect the "goods listed in the Rent & Buy Pty Ltd invoice dated 10 September 2009 attached to vehicles", and that, if not collected, the goods would be disposed of. The letter noted that the 58 vehicles "that hold the goods as listed in the invoice" had been stored at the defendant's premises and had attracted storage charges totalling $132,240 which the plaintiffs would need to pay before picking up the goods;
in the amended defence filed by leave granted on 4 April 2014, RV Investments:
- (i) deleted the assertions that the "goods were not delivered" to it, that it "did not agree to pay the invoice" and that it had not made "any payment against or in respect of the invoice";
- (ii) asserted that RV Investments had "disputed the invoice" on the basis that the goods were not of the expected quality and did not "have a market value of $242,000";
- (iii) asserted that RV Investments and Rent & Buy had resolved their dispute by a further agreement that RV Investments would only accept delivery of "a small proportion of the goods" and would make payments to Rent & Buy's creditors "to satisfy debts up to the amount of $30,000".

30 It is appropriate to briefly record part of the chronology of the proceeding and the current trial:

the proceeding was issued in the Expedited Cases Division of the Commercial List on 29 June 2012;
trial dates on 4 February 2013, 3 June 2013 and 14 October 2013 were vacated;

the current trial date of 31 March 2014 was fixed on 18 November 2013;

on 24 March 2014, the defendant's solicitors gave notice to the plaintiffs' solicitors that they considered that the trial date should be vacated because the trial of other litigation in which Ms Villella was a plaintiff had not concluded;
no application for an adjournment of the trial was made until the Court brought the matter on for a directions hearing on 27 March 2014. At that stage, the commencement of the trial was stood over to 1 April 2014 in the expectation that Ms Villella's other trial would have concluded;
on 1 April 2014, a further application for adjournment was made by the defendant on the basis that very little preparation for trial had been done. The commencement of the trial was stood down until 2.15pm to enable the defendant's solicitors to brief counsel, and on the basis that the trial would not proceed that day beyond the plaintiffs' opening and the evidence-in-chief of the sole witness to be called by the plaintiffs;
on 2 April 2014, Ms Villella and Mr Bohdan Denysenko were in attendance at the hearing. A further application was made by the defendant to adjourn the trial on the basis that the defendant would need time to assemble documents to support its case. Mr Denysenko gave oral evidence that previous counsel had not asked him to provide copies of invoices supporting the payments made by the defendant on behalf of Rent & Buy and that some of the invoices were with him [Mr Denysenko] and some were with the ATO. He also said that Mr Zaia was an essential witness and he may not be available to give evidence for at least a week. I determined to proceed with the trial by requiring defendant's counsel to complete his cross-examination of the plaintiffs' witness. The trial would then be adjourned to Friday 4 April;
on 4 April 2014, the trial proceeded, Mr Zaia gave evidence. Mr Denysenko produced a number of documents not previously discovered in the proceeding. These did not include any invoices or other documents referring to Rent & Buy, in respect of which RV Investments had made payments on behalf of Rent & Buy. Mr Denysenko had been unable to obtain any documents from the ATO, although there was no evidence that any enquiries concerning this matter had been made by the defendant's solicitors.

31 In my view the critical facts are as follows:

RV Investments took over the business of Rent & Buy in about July or August 2009, when it "was effectively broke";
Mr Denysenko wanted "some stock or some security" for the money that he and Ms Villella had advanced. His sons gave him the invoice dated 10 September 2009. The goods referred to in the invoice were attached to vehicles that were part of the business that had been taken over by Mr Denysenko and Ms Villella;

Mr Denysenko submitted the invoice to RV Investments' accountants in order for it to be included in the BAS return for the quarter ended 30 September 2009 and so that a claim could be made for input credits;

at a meeting at the business premises attended by Mr Denysenko, his sons, Mr Zaia, and perhaps Ms Villella, there may have been a dispute about the prices asked for the items included in the invoice;
in the period leading up to the meeting and subsequently, Mr Denysenko and Ms Villella, apparently by cheques written on the account of RV Investments, and perhaps also by bank transfers, made payments to creditors of Mr Denysenko's two sons and for their companies - Rent & Buy and G&D Performance Tuning Pty Ltd;
RV Investments continued to maintain to the ATO, and in the proceeding in the Administrative Appeals Tribunal, that it was entitled to input credits in relation to the whole of the amount of $242,000 in the disputed invoice;
no evidence has been produced by the defendant of any documents which might connect any payment to Rent & Buy, save for the notations on a number of cheque butts. About half of these cheque butts were written prior to the invoice dated 10 September 2009;
no adequate explanation has been given for the absence of Ms Villella or Mykola and Mathew Denysenko as witnesses for the defendant.

each of the items listed in the invoice was delivered to RV Investments at its request;
no satisfactory evidence has been produced of any payments having been made to the creditors of Rent & Buy in respect of the $242,000 price for the goods supplied;

the notation "R&B" only appears on 21 cheque butts totalling $9,142.51 of the revised list of payments alleged to have been made. Of these cheque butts, 11 of the 21 butts record payments made before the invoice dated 10 September 2009. The payments evidenced by the cheque butts after that date total $4,960.71;

no primary documents, such as invoices addressed to Rent & Buy, have been produced to support any payments for genuine debts of Rent & Buy;
RV Investments has, by the continued pursuit of input credits in respect of the invoice and its assertions that it has paid the whole amount of the invoice by making payments to creditors on behalf of Rent & Buy, acted contrary to its assertion that it did not accept delivery of the goods, or of some of them, and that it was only obliged to pay the sum of $30,000 to satisfy debts of Rent & Buy's creditors.

33 Accordingly, the plaintiffs have made out the claim for the invoiced amount of $242,000. Although the liquidator is the second plaintiff to the proceeding, it is appropriate that judgment only be entered in the name of the first plaintiff, the company in liquidation.

Judgment for the first plaintiff against the defendant that the defendant pay the first plaintiff the sum of $242,000.
I will hear the parties further on questions of interest and costs.

I certify that these 14 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 11 April 2014 .

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Judgment (67 paragraphs)

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