- Agusta Pty Ltd v Provident Capital Ltd

Supreme Court of NSW|2017-11-13|Before: Black J

Solicitors: Beazley Boorman (Plaintiff) Coleman Greig (Defendant) File Number(s): 2017/252597

Chronology

I first set out a brief chronology of events. By a Statement of Claim dated 2 July 2015 filed in the District Court of New South Wales, MGA claimed the amount of $169,326.08 against GTH together with interest "pursuant to the Terms as pleaded" quantified as $74,121.28, costs and other amounts. That Statement of Claim pleaded that, since 2009, MGA and GTH had entered into various agreements by which MGA agreed to supply and deliver goods to GTH by sale pursuant to MGA's written Terms of Trade ("Terms") and that it was a condition of the Terms that GTH would pay interest at the rate of 15% per annum on all overdue accounts from the due date of payment until the date of actual payment. Paragraph 6 of the Statement of Claim pleaded that, from November 2011 to February 2014, MGA supplied and delivered goods by way of sale to GTH at GTH's request and pursuant to the Terms in the total amount of $169,326.08. Paragraph 9 pleaded that GTH failed to pay that amount and that MGA claimed that amount. Paragraph 10 in turn pleaded a claim for interest under clause 8 of the Terms at the rate of 15% per annum from 30 March 2012 to 30 June 2015 on an outstanding amount of $143,000 in the sum of $69,815.34 and from 29 May 2014 to 30 June 2015 on an outstanding amount of $26,326.08 in the amount of $4,305.94 and also pleaded that interest continued to accrue on those amounts "until judgment or paid".
On 18 May 2017, Wass SC DCJ dismissed an application by GTH to amend its Defence and granted summary judgment in favour of MGA in specified terms. Her Honour's judgment referred (at [13]) to the nature of the claim and (at [14]) to evidence given by a director of GTH concerning the point at which the invoices were due and payable and she referred (at [33]) to inconsistency between the evidence led by that director and GTH's proposed Defence and held (at [35]) that: "… I have come to the view that the terms of the contract as put by [GTH] are unsustainable and cannot possibly succeed. In those circumstances I propose to grant summary judgment in respect of that part of the claim." Her Honour ordered that there be: "Judgment in favour of [MGA] in the sum of $143,000 together with interest under the contract from 3 February 2015."
On 19 May 2017, a judgment/order was entered by the District Court, recording that: "[MGA's] motion for summary judgment is granted so far as the claim for $143,000.00 is concerned. Judgment in favour of [MGA] in the sum of $143,000.00 together with interest under the contract from 3 February 2015." That judgment/order referred to the claim amount as $143,000 and the interest claimed as "$0.00". That reference may reflect the fact that the amount of interest was not quantified by the orders made by the District Court, although the Court had ordered that there be interest "under the contract" from the specified date. However, nothing turns on that matter given the conclusions that I reach below.
By letter dated 2 August 2017, some two and a half months after the District Court had made its orders, GTH's solicitors sent a trust cheque to MGA's solicitors for $143,000 being the principal amount awarded to MGA under the District Court's judgment. By that letter, GTH's contended that the question of interest was unresolved and observed that: "the claim for 15% interest 'under the contract' is disputed as our client never entered into any contract with your client to purchase these two specific machines which allowed them to charge 15% interest. There was no finding as to what the contract was and the terms of any interest rate. Our client accepts that it will be liable to pre judgement interest pursuant to the Uniform Civil Procedure Act." An immediate difficulty with that proposition was that the District Court had made an order, which had not been set aside, for payment of interest under the contract although it did not identify the particular contract or specify the relevant interest rate. It appears that that letter was not received by MGA's solicitors until 8 August 2017.
On 4 August 2017, MGA issued the Demand to GTH claiming the amount of $198,425.23, as specified in a schedule to the Demand. That schedule described the amount due as: "Monies payable by [GTH] to [MGA], pursuant to a judgment entered on 18 May 2017 against [GTH] in favour of [MGA], in the District Court of NSW at Parramatta case number 2015/195343 in the total sum of $198,425.23 (being made up of Judgment Sum of $143,000 plus interest ordered by the Court at the rate of 15% per annum from 3 February 2015 to 4 August 2017 in the sum of $55,425.23." It should be noted that the District Court had not quantified the amount of $198,425.23, nor had it expressly ordered that interest was to be at the rate of 15% per annum or that interest was to run to 4 August 2017 or that it was to total $55,425.23. More importantly for present purposes, the Demand was not verified by affidavit, implicitly on the basis that it was a demand for the amount of a "judgment debt" for the purposes of s 459E of the Corporations Act.
On 8 August 2017, GTH's solicitors again wrote to MGA's solicitors referring to the Demand and contending that MGA had no such judgment debt, and that the judgment debt was for a liquidated sum in the amount of $143,000 which had been paid by the trust cheque enclosed with their letter dated 2 August 2017. That letter contended that: "[MGA] has no judgement for interest at 15% or quantified in the amount of $55,425.53. The judgement says "plus contract interest". No contract has been identified and no interest rate has been identified. To our knowledge, there is no contract between our clients in respect of the two machines which contains any contractual interest clause. The creditor's statutory demand is further defective as it is not verified by affidavit where there is no judgement debt."
As I noted above, GTH filed its Originating Process seeking to set aside the Demand on 18 August 2017, supported by an affidavit of its solicitor, Mr Beazley also dated 18 August 2017. Mr Beazley's evidence was that no verifying affidavit was attached to the Demand and he referred to the payment made under cover of the letter sent on 2 August 2017 to MGA's solicitors and stated, by way of submission, that: "Although the court awarded contract interest it did not make a finding as to what the contract was or the interest rate. Further, no bill of costs has been served by the Defendant in relation to the costs order."
By her affidavit dated 27 September 2017, Ms Bazouni, who is a solicitor acting for MGA, led evidence that she had received an email copy of the letter and trust cheque from GTH's solicitors on 2 August 2017; she had received instructions from MGA to prepare and serve the Demand on 4 August 2017, where the original of that letter and cheque had not then been received by her office; the Demand was served on 8 August 2017; and the letter and cheque were then also received on 8 August 2017, and the cheque deposited into MGA's bank account on 23 August 2017. Ms Bazouni raised a question as to whether the cheque drawn in favour of MGA had been sent to the wrong level of the office building in which her firm practises. Mr Beazley responded by his affidavit dated 29 September 2017 indicating that he had been corresponding with Ms Bazouni at that address since 2015 and could not recall having been advised that correspondence should be sent to a different level of that building. Nothing turns upon that matter for the purposes of this application.
For completeness, MGA also tendered orders subsequently made in the District Court proceedings on 18 October 2017, which refer to an amendment in paragraphs 2, 3, 4 and 6 to GTH's Defence in the District Court proceedings (Ex R2). It appears that those further orders reflect the fact that GTH was not permitted to deny the existence of a contract and the terms relating to interest, where the District Court had already granted summary judgment in respect of those matters.

The applicable provisions

By way of background, s 459E of the Corporations Act permits a person to serve a creditor's statutory demand on a company in relation to one or more debts that the company owes to the person, where that debt or debts is or are due and payable and its or their amount is at least the "statutory minimum". Section 459E(2) deals with the form of the demand. Section 459E(3) provides that: "Unless the debt, or each of the debts, is a judgment debt, the demand must be accompanied by an affidavit that: (a) verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and (b) complies with the rules."
Section 459J of the Corporations Act provides that the Court may, on an application under s 459G of the Corporations Act, set aside a creditor's statutory demand if it is satisfied either that, because of a defect in the demand, substantial injustice will be caused unless the demand is set aside or that there is some other reason why the demand should be set aside. The Court's power to set aside a demand for some other reason under s 459J(1)(b) of the Corporations Act exists to maintain the integrity of the process provided under Pt 5.4 of the Corporations Act and is to be used to counter an attempted subversion of the statutory scheme, but is not exercised by reference to subjective notions of fairness: Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd [1996] NSWSC 199; (1996) 20 ACSR 746; Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24; (2005) 53 ACSR 229; Timberland Property Holdings Pty Ltd v Schindler Lifts Australia Pty Ltd [2011] NSWSC 466 at [16]. In Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91 at [83], the Court referred to Eumina Investments Pty Ltd v Westpac Banking Corp [1998] FCA 824; (1998) 84 FCR 454 at 458-459 and noted that s 459J(1)(b) will be rarely employed, but when employed, that will be for the purpose of meeting the demands of justice. In Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262 at [25], Barrett JA observed that s 459J(1)(b): "is thus a remedial provision under which the court may deal with cases not within s 459H or s 459J(1)(a) in a way that is just, having regard to the purpose of the legislation."

Whether the debt was a "judgment debt"

MGA did not advise that Demand was no longer pressed in the full amount for a considerable period after the cheque sent by GTH's solicitors had been received and deposited into MGA's account. However, Mr Afshar, who appears for MGA, confirmed that the Demand was now only pressed for the amount of unpaid interest claimed, when I inquired as to that matter at the commencement of his oral submissions. Mr Afshar's written submissions were partly directed to the question whether there was a genuine dispute or offsetting claim in relation to the Demand. I need not address that question where GTH did not seek to set aside the Demand on that basis.
In GTH's written outline of submissions, GTH initially contended that there was no judgment debt owing by GTH to MGA as at the date the Demand was issued, on 4 August 2017, it having been paid on 2 August 2017. I do not understand Mr Johnson to press that submission. Had it been pressed, I would not have accepted it. First, that amount had not been paid as at the date the Demand was issued, where the cheque sent by GTH's solicitors was not received until 8 August 2017 by MGA's solicitors and not deposited into MGA's account until 24 August 2017. Second, the judgment debt included (as I will find below) a component of interest to the date of judgment, for the reasons noted below, which has still not been paid.
GTH also contended that any claim for interest had not been quantified by the District Court of New South Wales and did not form part of the judgment entered into Justicelink and was therefore not a "judgment debt" to fall outside the requirement for a verifying affidavit under s 459E(3) of the Corporations Act. In oral submissions, Mr Johnson submitted that the order made by the District Court did not identify the relevant contract or quantify the amount of interest. Mr Afshar responded that it is clear that Judge Wass SC granted summary judgment on the case pleaded in paragraphs [3]-[9], part of [10] and [11] of MGA's Statement of Claim, which included the allegation that the "terms" of the contract between MGA and GTH provided for interest at 15%.
On balance, I do not accept the proposition that either the relevant contract was not identified, or the 15% interest rate was not identified, when the District Court's orders are read in the context of the Statement of Claim filed in the District Court proceedings and the terms of the District Court's judgment giving summary judgment in favour of MGA. I also do not accept GTH's submission that there was no interest component in the District Court's judgment, where Order 4(b) plainly provided for "interest under the contract from 3 February 2015", notwithstanding the incorrect reference in the order entered in Justicelink to interest claimed of $0.00.

The treatment of post-judgment interest in the Demand

After the question arose in Mr Afshar's submissions as to the basis on which interest on the District Court's judgment was to be quantified, Mr Johnson raised a further matter in reply, to which I then gave Mr Afshar the opportunity to respond. Mr Johnson submitted that the interest in the judgment debt arising from the District Court's judgment comprised interest at the contract rate up to the date of judgment (if, contrary to his primary submission, interest was payable) and that the MGA's claim under its contract then merged in the judgment, and any subsequent claim for interest was in the nature of post-judgment interest under s 101 of the Civil Procedure Act 2005 (NSW) and to be quantified in accordance with the Uniform Civil Procedure Rules 2005 (NSW) and was not in the nature of a "judgment debt".
Mr Afshar responded that: "… the judgment debt comprises the figure of $143,000 'together with' interest calculated from 3 February 2015 to 4 August 2017 at 15%. The language used by her Honour - 'sum of' and 'together with' - is clear and unambiguous." I am unable to accept that submission. The District Court's judgment is not "clear" that it extends to interest beyond the date of judgment to 4 August 2017, nor is that proposition consistent with the nature of a "judgment debt" at general law or the basis on which post-judgment interest is awarded under s 101 of the Civil Procedure Act. In Pearl Bay Corp Pty Ltd v Lodur Pty Ltd [2000] WASC 315; (2001) 19 ACLC 982, the Court observed that a "judgment debt" existed at the date on which a Court handed down its reasons and pronounced judgment, without need for the judgment to be formally entered or "taken out". In Fitness First Australia Pty Ltd v Dubow [2011] NSWSC 531; (2011) 84 ACSR 296 ("Fitness First"), Ward J (as her Honour then was) referred to that proposition with apparent approval.
That conclusion also follows from s 101(1) of the Civil Procedure Act which provides that: "Unless the court orders otherwise, interest is payable on so much of the amount of a judgment (exclusive of any order for costs) as is from time to time unpaid." Section 101(3) in turn provides that interest is not payable on the amount of a judgment if the amount is paid in full within 28 days after the date on which the judgment takes effect unless the Court orders to the contrary. It seems to me to be apparent from that section that interest under s 101 of the Civil Procedure Act is not part of the judgment debt, but is calculated upon it, and may or may not be payable depending when the amount of the judgment is paid.
Mr Afshar also relied on the definition of "judgment debt" in s 3 of the Civil Procedure Act to include "any amount payable under a judgment" and on the definition of "judgment" to include "any order for payment of money". It is not necessary to address, for present purposes, whether that definition assists in the construction of the term "judgment debt" in s 459E of the Corporations Act. I am inclined to the view that it does not, since it can scarcely be the case that the phrase "judgment debt" in national corporations legislation means different things in different States, if the term "judgment debt" is differently defined in differing State legislation. Even if the definition of "judgment debt" in s 3 of the Civil Procedure Act did affect the meaning of the term "judgment debt" in s 459E of the Corporations Act, or, more likely, the terms reflected similar concepts, there is no basis to think that post-judgment interest, which arises on the amount of a judgment debt, is itself a judgment debt.
It follows that the amount claimed in the Demand comprised partly a "judgment debt", being the amount of $143,000 and unquantified interest under the contract to the date of the judgment, and partly interest after the date of the judgment to the date on which the Demand was issued which was payable under s 101 of the Civil Procedure Act.

The effect of lack of verification of the amount claimed for post-judgment interest

The question then arises as to the effect of the inclusion in the Demand of an amount that was not properly a "judgment debt" and that was not verified by affidavit. Mr Johnson did not rely on the inclusion of interest at 15% after the date of judgment in the Demand to establish a genuine dispute as to the debt claimed in the Demand, or part of that debt, although his submission that such interest arose under s 101 of the Civil Procedure Act had the consequence that MGA's claim for interest at the 15% rate specified in the contract, after the date of judgment, was overstated to the extent that that interest rate exceeded the rate at which post-judgment interest was payable. Mr Johnson instead relied on that matter to contend that the amount of post-judgment interest included in the debt claimed in the Demand was not a "judgment debt" and, to the extent that the Demand included an amount that required verification by affidavit, and was not verified, then it did not comply with s 459E(3) of the Corporations Act and should be set aside under s 459J(1)(b) of the Corporations Act.
The requirement for verification of a debt claimed in a creditor's statutory demand by affidavit is an important aspect of the regime established under Pt 5.4 of the Corporations Act. In B & M Quality Constructions Pty Ltd v Buyrite Steel Supplies Pty Ltd (1994) 15 ACSR 433 at 435-436, McLelland CJ in Eq observed, in respect of the identity of the deponent of such an affidavit, that: "The requirement of that rule, as to the identity of the person making the affidavit accompanying the statutory declaration, is designed to serve the public interest as well as to protect the company against unwarranted demands, by endeavouring to ensure, within practical limits, that the person who must put his or her oath or solemn affirmation to the relevant matters (and thereby risk a conviction for perjury if a knowingly false statement is made) is the person associated with the creditor who is most likely to have direct knowledge of those matters. It is important in this regard to bear in mind that the relevant matters include not only a belief as to the existence and amount of the debt, but also a belief as to the absence of any genuine dispute about the existence or amount of the debt. The express requirement in the rule that the person making the affidavit depose to his or her belief that there is no genuine dispute is a significant mechanism for filtering out cases where there is in fact such a dispute, so as to prevent such cases from reaching the court on such an application as the present, with a consequent waste of time and resources."
In Wildtown Holdings Pty Ltd v Rural Traders Co Ltd [2002] WASCA 196; (2002) 172 FLR 35 at 39-40, the Full Court of the Supreme Court of Western Australia approved observations made in Four Seasons Construction Pty Ltd v Eastern Metropolitan Regional Council [2000] WASC 277; (2000) 35 ACSR 716 at [19] as to the purpose of an affidavit which accompanies a statutory demand: "First, the corporation is advised that the debt is outstanding and is assured that the party serving the demand has no doubts that the debt is owed. Second, and perhaps more importantly, when the matter comes before the Court, either on an application to set aside a statutory demand or on a winding up application, the court, by reference to the accompanying affidavit can be sure the party issuing the demand has taken steps to satisfy themselves that the debt is outstanding. This may have particular importance on an uncontested winding up. But even on a contested application to set aside a statutory demand, if there is compliance with the rules in relation to the accompanying affidavit, the court can be satisfied that there is a sound basis on which to begin. The respondent should say there is a debt, that it is still owed and about which there is no genuine dispute. It is then up to the applicant to show that the demand ought be set aside either because there is a genuine dispute or for some other reason. An accompanying affidavit which refers to the deponent's belief that there is no genuine dispute about the debt is important if the issues between the parties are to be clearly delineated."
These observations were cited with approval by Siopis J in Anderson Formrite Pty Ltd v CASC Hire Pty Ltd [2005] FCA 1424; (2005) 147 FCR 379 ("Anderson Formrite") and the importance of verification of a creditor's statutory demand was also emphasised by the Court of Appeal in Kisimul Holdings Pty Ltd v Clear Position Pty Ltd above.
Mr Johnson draws attention to the treatment of this issue in Mr Assaf's useful text, Statutory Demands and Winding Up in Insolvency, 2nd ed, 2012, [3.21] where the author refers to the decision of Siopis J in Anderson Formrite, where a creditor had served a creditor's statutory demand for the amount of a judgment debt, less two instalments paid, which was not verified by affidavit. Siopis J set aside the demand on the basis that it was not, in fact, a claim for a judgment debt and required verification. His Honour observed (at [62]-[63]) that: "The rationale for exempting a statutory demand for the very sum of a judgment, from the need for verification by an accompanying affidavit is apparent. The judgment speaks for itself as to the amount which is due and payable and, prima facie, also in relation to the absence of a genuine dispute. However, once the statutory demand is for a sum different from the sum in the judgment, the rationale for the exemption from the verification no longer applies because extraneous events or circumstances have intervened. There is then a need to identify the amount claimed by reference to the extraneous intervening events and circumstances. Further, these intervening events and circumstances are capable of giving rise to disputes as to the amount of an outstanding debt and, also, as to the continued existence of the debt. … In these circumstances, the same considerations which underlie the introduction of the legislative requirement for verification of statutory demands for amounts that were never the subject of a judgment, apply equally to demands for amounts different from the sum in respect of which a judgment was given. It follows, in my view, that a narrow construction should be given to the words 'judgment debt' in s 459E(3) of the Act so that the exemption is confined to demands for the very amount in respect of which judgment was obtained, and not for any different amount."
That decision was distinguished in Jargon Pty Ltd v Good Earth Garden Products Pty Ltd [2006] WASC 282; (2006) 206 FLR 244, where a creditor served a creditor's statutory demand for less than the amount of the judgment. It is not necessary to express any view as to the correctness of that distinction, where the Demand here seeks more rather than less than the amount of the principal and interest comprised in the judgment debt.
The decision in Anderson Formrite was also cited and applied by Ward J (as her Honour then was) in Fitness First above at [98] where her Honour observed that: "The purpose of the requirement for a verifying affidavit is to enable the court to be satisfied that there is a solid basis for the claim as to the existence of the debt. The exemption for the requirement for such an affidavit in the case of judgment debts is to be understood in that light." Her Honour there set aside a creditor's statutory demand on the basis, inter alia, that it included a $78 fee as part of a debt schedule that was not part of the original judgment debt and was not verified by affidavit.
In Agusta Pty Ltd v Provident Capital Ltd [2011] NSWSC 807, to which Counsel did not refer, Hammerschlag J set aside a creditor's statutory demand that claimed the judgment amount less a small amount said to be received following the seizure and sale of personal property of the second defendant, plus a substantial amount of interest calculated under s 101 of the Civil Procedure Act. His Honour there followed Anderson Formrite, although he also observed (at [10] and [13]) that: "I should say, however, that I have significant doubt as to the correctness of his Honour's judgment, so far as it would entail the conclusion that the debt is not a judgment debt by reason only of the addition of the claim for interest under s 101 of the Civil Procedure Act 2005 (NSW), read with Pt 36, r 36.8 of the Uniform Civil Procedure Rules 2005 (NSW). … In my view, the interest amount can be derived simply by an empirical arithmetic calculation applying the statutory interest rate to the amount of the judgment and can properly be regarded as part of the judgment debt." I do not share his Honour's doubt as to that matter. It seems to me that the calculation of post-judgment interest is not necessarily simple or uncontroversial, where it involves the application of interest rates which may or may not be properly applied and also depends upon a factual question that may be disputed (as this case plainly illustrates) as to when the amount of the debt was paid so as to bring the period for which interest can properly be claimed to an end. Second, I find it difficult to see how an amount that arises after the judgment, and is calculated by reference to the amount of the judgment debt, can itself be part of the judgment debt.
The decisions in Anderson Formrite and Fitness First were also recently cited and applied by Randall AsJ in Body Corporate Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2017] VSC 435, although the Associate Judge did not there set aside a creditor's statutory demand on the basis of lack of verification, where it claimed no more than the amount of the judgment debt arising from costs orders.
It seems to me that, in these circumstances, the Demand was required to be verified by affidavit, since it extended to a claim for interest under s 101 of the Civil Procedure Act after the date of delivery of the District Court's judgment although it mischaracterised the nature of that interest and wrongly calculated it at a 15% interest rate. The failure to verify the Demand seems to me to warrant an order setting aside that Demand under s 459J(1)(b) of the Corporations Act for the reasons noted in Anderson Formrite and the several cases that have applied that decision. I am conscious that that has the result that the Demand is set aside as a whole, although the large part of the Demand constituted a judgment debt, and only a smaller part constituted the claim for post-judgment interest. However, that result is consistent with the case law to which I have referred and may be the necessary consequence of the fact that s 459J(1)(b) does not contemplate that a demand may be varied rather than set aside. The objects of Pt 5.4 of the Act and the interests of justice will often be better served by setting aside a creditor's statutory demand that claims a substantial unverified amount where the only alternative would be to allow that demand to stand and expose its recipient to a presumption of insolvency arising from an unverified claim. That approach will generally promote the important statutory requirement for verification of a debt that is not a judgment debt. That approach may also more readily be taken in this case where the "principal" amount comprising part of the judgment debt has been paid and a substantial amount of the remaining debt claimed by the Demand is post-judgment interest that could and should have been, but was not, verified by affidavit and was been incorrectly calculated in any event.

Orders and costs

Accordingly, I order that:
The creditor's statutory demand dated 4 August 2017 issued by the Defendant to the Plaintiff be set aside.
The Defendant pay the Plaintiff's costs as agreed or as assessed.

Amendments 29 November 2017 - Correction of typographical error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2017

At a glance

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