Acrow Formwork and Scaffolding Pty Ltd v Ystress Scaffolding Pty Ltd and Anor [2026] VCC 372

1. The plaintiff is a supplier of scaffolding and formwork equipment to the construction industry. It is a leader in the construction business and provides various engineering solutions and related systems to the construction market. The plaintiff hires out and also sells scaffolding equipment to its customers.
2. Ystress was incorporated on 21 November 2021.
3. On 27 November 2021, Ystress submitted a credit application to the plaintiff which was signed by Singh and her fellow director at the time, Mr Ternovskiy, by which Ystress accepted the plaintiff's terms and conditions.[2]
4. On the same day, Singh and Mr Ternovskiy signed a deed of guarantee and indemnity by which the directors personally guaranteed payment to the plaintiff for all goods and services supplied by the plaintiff to Ystress.[3] Although Mr Ternovskiy gave a guarantee, no proceedings have been issued against him, and the court was informed that his whereabouts remain unknown.
5. At Ystress and Singh's request, the plaintiff hired scaffolding equipment to Ystress in the period from December 2021 to February 2024.
6. Set out below are the plaintiff's terms and conditions of trading which were included in the credit application form signed by Singh on behalf of Ystress [4]:

1. General These Terms of Hire constitute the entire agreement between [Acrow] and Hirer concerning the hire of the formwork and scaffolding ("Equipment") and the supply of services by [Acrow] to the Hirer, and shall prevail over all conditions appearing on any document of the Hirer.

3. Price Unless advised otherwise in writing by the Supplier, the Hirer shall in addition to prices quoted or charged, be responsible for all applicable taxes and statutory charges including but not limited to GST.

4. Invoicing All invoices shall be paid within 30 days from the date of the invoice.

5. Delivery A representative may be appointed by Hirer for the sole purpose of checking the quantity of material delivered and the time of delivery. If no representative is provided, Hirer agrees [Acrow] shall be able to affect delivery and/or pick up of Equipment at its absolute discretion without the necessity for a representative of Hirer to be present. Conclusive proof of receipt of the quantity, date and description of Equipment delivered, and delivery of the Equipment in good condition will be evidenced by the delivery docket.

9. Loss and Damage Hirer shall be responsible for all theft, loss and damage to the Equipment, and the cost of replacement or repair will be charged to Hirer at Acrow's latest current list price.

12. Hire Period Hire of the Equipment shall commence from the day Hirer takes delivery of the Equipment until the day of return of the Equipment, with both of these days charges as whole days...

1. In accordance with the terms of the Guarantee, Ms Singh agreed to personally guarantee any amounts payable by Ystress to Acrow. Relevant terms of the Guarantee include:[5]

1. I guarantee payment to the Supplier of the price charged by the Supplier for Goods supplied to the Customer from time to time, without any deduction or setoff whatsoever.

I/We also guarantee payment of any other monies now or in the future owing by the Customer to the Supplier.

2. I indemnify the Supplier against all costs, losses and expenses which it incurs as a result of any default by the Customer.

By signing below as Guarantor(s)I certify that I understand the terms of this Guarantee.

In particular I understand that if the Customer fails to make any required payments to the Supplier the Supplier may recover the amount of these payments from me personally. In such case, the Supplier may, amongst other recovery rights, take charge over any Real Property. I certify that I have had the opportunity of taking independent legal advice in relation to the meaning and effect of this Guarantee."

1. An earlier proceeding in the County Court, No. CI-23-01927 was issued in May 2023 by the plaintiff against Ystress and its directors relating to outstanding invoices. The amount claimed was $104,106.32 for moneys owed relating to scaffolding goods supplied between 1 July 2022 and 22 February 2023. The invoices in the earlier proceeding are different to the invoices that are the subject of the claim in this proceeding. The date span in the earlier proceeding is for invoices between December 2022 and March 2023. The invoices sued upon in this proceeding are from April 2023 to December 2023.
2. Judgment in default of appearance was entered against the defendants in the earlier proceeding on 26 May 2023.
3. A creditor's petition was subsequently lodged in the Federal Circuit Court on 6 August 2023 against the directors of Ystress. This matter was ultimately settled by way of a Deed of Settlement and Release signed by the parties.[6] Singh agreed to pay the plaintiff the final settlement sum of $34,904.74 by way of monthly instalments. The Deed had the effect of settling the default judgment debt in the earlier proceeding and the resulting creditor's petition as recorded under the heading "Background" in the Deed. It did not provide Singh with a full and final release as the release provided was expressly limited to the settlement sum defined in the Deed as $34,904.74.
4. This proceeding was commenced by writ filed 3 April 2024. The plaintiff's claim relates to unpaid scaffolding hire charges. An aide-memoire in the Court Book summarised nineteen invoices relied upon.[7] Copies of the relevant invoices are also in the Court Book.[8] The quantum claimed of $170,886.46 takes into account a credit for a sum of $11,665.68.
5. In summary, there are two categories of invoices that Ystress failed to pay:

(a) eighteen invoices totalling $77,369.80 which relates to hire charges for equipment provided by the plaintiff to Ystress;

(b) one invoice totalling $105,152.34 for the loss claimed on hire charges, being the cost of replacing equipment that Ystress failed to return. The plaintiff's claim in respect of this invoice has been reduced by $11,665.68 to reflect equipment that Ystress returned in February 2024, as referred to in paragraph 19 of the plaintiff's Statement of Claim.

1. Ystress and Singh filed a defence and counterclaim on 21 June 2024. Singh alleged in her pleading, for the first time, that she did not sign the credit application or the guarantee allegedly executed on 27 November 2021. By counterclaim, the defendants seek various declarations to the effect that the plaintiff is precluded and or estopped from bringing its claim.
2. An issue arose in the case arising out of matters pleaded by Singh in paragraph 16D of her defence dated 21 June 2024 referred to collectively as "settlement representations". It was alleged that there were representations made to her at meetings with the plaintiff's representatives on 12 May, 25 July and the first week of August 2023 to the effect that the plaintiff would accept an amount in final settlement of all claims the plaintiff had against the defendants relating to the supply of scaffolding equipment. In reliance on these representations, Singh paid the sum of $85,000 to the plaintiff. In these circumstances, it is alleged that it would be inequitable and or unconscionable for the plaintiff to obtain the relief it now seeks.
3. In its reply and defence to counterclaim, the plaintiff pleads that there was an agreement for Singh to pay the sum of $85,000 in respect of the claims made in the earlier proceeding. However, she had defaulted in making payment as agreed which then caused the plaintiff to file the bankruptcy notice referred to earlier in these reasons. The plaintiff accepts that the plaintiff has paid approximately $85,000 overall to compromise the claims made in the earlier proceeding.[9]

1. The plaintiff called two witnesses at trial. The first being Ms Belma Dulic, the general manager of the plaintiff's Victorian operations and the second, Mr John Pamboris, the plaintiff's national credit manager.
2. Mr Pamboris gave evidence regarding the usual course of events when a customer seeks to engage the plaintiff's services. This includes requiring the prospective customer to complete and return a credit application form, together with a signed guarantee. He also said that once the documents were received, they would be assessed, and, if approved, then the plaintiff would provide equipment to the new customer. He said that this would not occur unless a guarantee was provided. A guarantee was an essential part of their process because it provided the plaintiff with protection in the event that the customer failed to return equipment. The requirement for a guarantee is necessary in the construction industry, where the potential loss of equipment poses a higher risk. Once the application form and guarantee were signed, an account would be set up, and the customer could start trading.
3. The documents in this case are located on the plaintiff's secure network. Mr Pamboris had ascertained from the plaintiff's records that copies of the credit application and guarantee relied upon in this case were contained in the plaintiff's electronic filing system.
4. Mr Pamboris was taken to the list of invoices that appears at CB 110. He acknowledged that the invoices referred to in the aide-memoire are invoices which he has perused and that they were also in the Court Book. He had reviewed the invoices listed, and was satisfied that Ystress had not paid the total amount claimed of $170,886.46 and that this amount remains outstanding.
5. Mr Pamboris gave evidence that he had met with Singh at least twice at meetings between May and August 2023. He had attended these meetings either by phone or by videolink. Present at the meetings were Singh and Ms Dulic from the plaintiff. The purpose of the meetings had been to try to come to an agreement to settle the amount outstanding. During the meetings, an earlier judgment that the plaintiff had obtained against Ystress in the County Court was discussed. Mr Pamboris gave evidence that the alleged settlement representations did not occur.
6. Ms Dulic also gave evidence on behalf of the plaintiff. The plaintiff started to trade with Ystress in December 2021. She confirmed that the plaintiff had hired scaffolding equipment to Ystress in the order of 650 tonnes of scaffolding for various projects.
7. The plaintiff's practice is for invoices to be generated monthly which are sent out at the end of each month. Ms Dulic was taken to various delivery dockets sent to Ystress.[10] These dockets recorded equipment that was provided, being equipment on the way out to a client. There was also a system of recording equipment returned by clients. The process was that the plaintiff would generate a return docket, as well as uploading a photo of the equipment on the truck returning the equipment, to have more evidence of the returns. Every single invoice has a record of every item and then the hire changes for each individual item.
8. In addition to hiring-out equipment, the plaintiff also sells new or ex hire scaffolding equipment in the market. If equipment is not replaced, then that needs to be purchased by the plaintiff. Ms Dulic was referred to Invoice No FV360007227 dated 18 January 2024[11] which sets out details of the loss of hire costs incurred by the plaintiff as a result of items which had not been returned by Ystress. Ms Dulic confirmed that the plaintiff had purchased the equipment listed in the invoice to replace the equipment not returned by Ystress.[12]
9. Ms Dulic was also present at a face to face meeting with Singh on 7 August 2023. She met Singh and her husband. Mr Pamboris attended that meeting by Teams on videolink. The purpose of the discussion was to try to resolve, without having to escalate the matter, the question of the outstanding invoices at the time. Ms Dulic said that the meeting lasted for approximately an hour. Ms Singh had her husband waiting nearby, but said they both felt under pressure and unwell. Ms Dulic formed the view that it was undesirable for the meeting to continue if someone's health was threatened. The matter did not resolve during the meeting. Ms Dulic expressly denied that there had been any representation made on behalf of the plaintiff that if Singh or Ystress paid a sum of $85,000, the plaintiff would not seek to recover any further moneys that were outstanding. The position during the meeting was that the question of the amounts resolved by the earlier proceeding were put to one side, and that the claims in respect of charges subsequent to that date still had to be resolved.
10. Following this meeting, Singh sent an email to Ms Dulic and Mr Pamboris on 14 August 2023 in which she wrote

.... As in our meeting we said, We will go ahead with the payments once we come to a final outstanding amount after returning the rest of the gear, which will be done next week.

In terms of Legal process it is all your choice. I can't comment on that. But if you choose to threaten me again and again, I'll just tell my doctor and lawyer that even after we have paid more than we could and are still in the process of sorting this out asap as we go but you are still threatening me. .....

1. After receiving this email, Ms Dulic felt uncomfortable with Singh's response and asked Mr Pombaris to take the case and to go through legal.
2. Ms Dulic said there had been a problem with Ystress returning more and more equipment after that meeting, and the amount of $183,000 worth of equipment was returned by February 2024. That resulted in the credit given of approximately $11,000.
3. The defences which Singh relied upon in a written outline of submission filed shortly before the hearing were:

(a) that the amount now claimed against her was inaccurate having regard to payments that she had made previously;

(b) she believed the matter had been resolved;

(c) she had not signed the document now being relied upon;

(d) she was not present at the time the alleged signatures were made and she did not accept liability based on documents that were not genuinely hers.[13]

1. As observed by Kunc J in In the application of Roderick Mackay Sutherland and Sule Arnautovic, Re[14]

The onus is on the party alleging a forgery to show that the signature was a forgery. The onus is not on the other party to show that the signature was not a forgery: Damjanovic v York Agencies Pty Ltd [ 2003] NSWCA 222 at [25] per James J; RP Meagher and Beazley JJA agreeing.

1. Ms Singh's serious allegation of forgery must be proved on the balance of probabilities, but to a standard (formerly known as the Briginshaw standard) set out in s. 140(2) of the Evidence Act 2008 (Vic).[15]
2. In respect of the applicable standard, McMillan J stated in Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [16]

But the gravity of that allegation [forgery] requires the satisfaction of such a standard to be produced by more than by inexact proofs, indefinite testimony or indirect inferences.

1. As already noted, Singh did not appear at the trial. As a consequence, there was no evidence led in support of the defence pleaded at paragraphs 6A to 6F of her defence that the signatures that appeared on the credit application and guarantee were not hers, and that they were forged. Singh had the opportunity to make an application to lead expert evidence and to adjourn the trial so that expert evidence might be prepared and filed but chose not to do so.[17]
2. Given the lacuna of evidence on this topic, the forgery defence was not made out.
3. Additionally, the defences raised that the amounts claimed were inaccurate and that there had been effectively a form of estoppel based on representations supposedly made by the plaintiff were also not proved. I am satisfied that the debt claimed by the plaintiff is correctly calculated having regard to the oral evidence given by the plaintiff's witnesses and the documents tendered in evidence at trial.
4. Both of the plaintiff's witnesses expressly denied that there had been any representation by the plaintiff to Singh to the effect that it would not seek to recover further sums owing in this proceeding during meetings held in 2023. The email sent by Singh after the meeting with the plaintiff's representatives made no mention of there being any agreement to accept $85,000 in final settlement of all claims. Instead, Singh offers to make further payments which is inconsistent with there ever having been such an agreement. Accordingly, the so-called settlement representations as pleaded by Singh were not proved. Nor was the allegation that the Deed of Settlement provided a release in respect of the invoices claimed in this proceeding. As the Deed makes clear, the release is confined to the subject matter of the earlier proceeding and creditors petition, which are unrelated to this action.
5. In all the circumstances, I am satisfied that the amount of the debt claimed in the sum of $170,886.46 is correct and the debt remains due and payable. This indebtedness covers not only the unpaid hire charges but also amounts incurred for loss of hire as a result of equipment not being returned in accordance with clause 9 of the plaintiff's terms and conditions.
6. Additionally, I am satisfied that Singh did sign the credit application and a guarantee which were given to the plaintiff before trading commenced between the parties. The credit application form and guarantee document are clearly business records of the plaintiff. I accept Mr Pamboris's evidence that the plaintiff would not commence trading with a customer until such time as these documents had been signed and returned. There is no reason to dispute their authenticity in the absence of any evidence being led to the contrary.
7. As a result of my findings, it follows that the grounds for the relief sought in the counterclaim were not established.

1. On the evidence adduced at trial, I find that Singh is indebted to the plaintiff in the amount claimed. Judgment will therefore be entered against Singh in the sum of $170,886.46. I will order that the counterclaim be dismissed.
2. I will hear from the parties regarding the final form of orders to be made, including interest and costs. Subject to hearing from the parties, costs should follow the event and Singh should be ordered to pay the plaintiff's costs of the proceeding. The plaintiff will be asked to calculate any amounts of interest claimed in addition to the judgment debt.

I certify that these 11 pages are a true copy of the Reasons for Judgment of Her Honour Judge A Ryan delivered on 31 March 2026.

[1] The matter was called in and outside of court but there was no appearance.

[2] Confidential credit application, Court Book ("CB") 80-88.

[3] Deed of guarantee and indemnity, CB 86-88.

[4] Acrow's Terms and Conditions, CB 84.

[13] See Defendant's Outline of Submissions, CB 559.

[14] [2014] NSWSC 821 at [65].

[15] Application of Sutherland and Arnautovic, Re [2014] NSWSC 821 at [64] (per Kunc J).

[16] [2018] VSC 413 AT [605].

[17] See orders of Bennett JR on 11 March 2026 at [CB 45 - 46] and orders of Judge Marks on 16 March

2026 at [CB 48 - 49] See also correspondence with Ms Singh at [CB 553].