Anvic v Constable [2002] NSWSC 424 | Case summary

Attached to the statutory demand was a certificate of the Registrar of the Fair Trading Tribunal dated 9 November 2001 stating the terms of the order of the Fair Trading Tribunal made on 13 August 2000. The order was in part as follows: "I order First Respondent Tilecraft (Aust) Pty Limited of c/- Brook Worthington 1725 Pittwater Road Mona Vale NSW 2103 to pay the Applicant Robert Julian Constable of 16 Waratah Road Palm Beach NSW 2108 Sixty six thousand six thousand six hundred and fifty nine dollars ($66,659.00) within thirty days of the Registry posting this order." 3 It is common ground that Tilecraft (Aust) Pty Limited later changed its name to Anvic Holdings Pty Limited and is the present plaintiff. So much was made clear on the face of the statutory demand. In addition, I take it that it is not in dispute that, when the certificate refers to "Sixty six thousand six thousand six hundred and fifty nine dollars" it intends to say "Sixty six thousand six hundred and fifty nine dollars". 4 The challenge to the statutory demand is based on s.459H(1)(a) and the proposition that there is a genuine dispute between the plaintiff and the defendant about the existence or amount of the debt to which the demand relates. The basis of this contention on the plaintiff's part emerges from the history and nature of the proceedings in the Fair Trading Tribunal. 5 Stated briefly, the history of the proceedings after the making of the order of 13 August 2000 is that, on 21 September 2000, the plaintiff filed an application for a stay and re-hearing; on 3 October 2000, the Tribunal granted a stay; on 15 December 2000, the Tribunal granted a re-hearing; on 21 January 2001, the defendant filed a summons in this court challenging the order for re-hearing on the grounds of denial of natural justice; on 30 May 2001, Master Malpass set aside the Tribunal's decision to grant both a stay and a re-hearing; on 6 June 2001, the defendant applied to the Registrar of the Fair Trading Tribunal for a certificate under s.47 of the Fair Trading Act 1998 in respect of the order of 13 August 2000 for the payment of $66,659; on 4 July 2001, directions were made for further conduct of the proceedings in the Fair Trading Tribunal and the application for the s.47 certificate was deferred; on 3 October 2001, the Fair Trading Tribunal granted a re-hearing, refused a stay and allowed the application for a certificate under s.47 to proceed; on 9 November 2001, the certificate under s.47 was issued. 6 The re-hearing proceeded before the Consumer, Trader and Tenancy Tribunal (Senior Member Durie) which, on 20 March 2002, ordered that the matter be transferred to the District Court under s.23(1) of the Fair Trading Act 1998: "If all the parties so agree or the Tribunal of its own motion or on the application of a party so directs, proceedings instituted in or before the Tribunal must be transferred, in accordance with the rules of that court, to a court that has jurisdiction in the matter and are to continue before that court as if they had been instituted there." 7 It should be noted, at this point, that the Fair Trading Tribunal Act 1998 was, on 25 February 2002 (that is, six days after the date of the statutory demand), superseded by the Consumer, Trader and Tenancy Tribunal Act 2001. I shall, for ease of reference, call the former "the 1998 Act" and the latter "the 2001 Act". The 2001 Act contains transitional provisions. One is to the effect that proceedings pending at 25 February 2002 may be continued and determined as if the 2001 Act had not been enacted and the 1998 Act had continued in force (Schedule 6, cl 6(1)) - hence the order of Senior Member Durie on 20 March 2002 under s.23 of the 1998 Act despite its having been replaced by the 2001 Act, for most purposes, before that order was made. Another transitional provision says that an order made by the Fair Trading Tribunal under the 1998 Act is taken to be an order made under the corresponding provision of the 2001 Act by the tribunal constituted by the 2001 Act (Schedule 6, cl 6(3)). There does not appear to be any provision of the 2001 Act which affords to a certificate issued under s.47 of the 1998 Act the status of a certificate issued under the corresponding provision of the 2001 Act (being s.51 of the 2001 Act) although, in the end, I do not think anything turns on that. 8 The defendant's position, shortly stated, is that there was, at the time the demand was issued and served, a debt by reason of the order made by the Fair Trading Tribunal on 13 August 2000 evidenced by the Registrar's certificate of 9 November 2001; that that debt is a judgment debt (an assumption or contention on the defendant's part borne out by the express words of the statutory demand and the absence of an affidavit accompanying the demand: see s.459E(3)); and that none of the subsequent events in the Fair Trading Tribunal or the successor tribunal, including the order transferring the matter to the District Court, operated in any way to affect that debt as an obligation presently due and payable. In relation to the last of these contentions, the defendant relies on the decision of McLelland CJ in Eq in Barclays Australia (Finance) Ltd v Mike Gaffikin Marine Pty Ltd (1996) 21 ACSR 235 where earlier cases are discussed. It is sufficient, for present purposes, to quote from the ACSR head note: "The possibility that a presently existing and enforceable debt may be set aside in the future pursuant to a subsisting appeal does not give rise to a genuine dispute about the existence of the debt within the meaning of CL s459H." 9 The position thus adopted by the defendant requires examination in the light of the nature and effect of an order of the Fair Trading Tribunal that money be paid by one person to another. 10 The Fair Trading Tribunal obviously had power under the 1998 Act to make the order of 13 August 2000 directing the payment of money by the plaintiff to the defendant. But there is nothing in that Act requiring or compelling obedience to such an order. Under the 2001 Act, a person must not wilfully contravene or fail to comply with an order of the successor tribunal (see s.52(1)), however this does not apply to "an order for the payment of any money" (s.52(2)(a)), with the result that, even allowing for cl 6(3) of Schedule 6 to the 2001 Act, s.52 of that Act does not create or connote a payment obligation. There is nothing similar in the 1998 Act. Moreover, each Act's provisions with respect to contempt of the tribunal (s.39 of the 1998 Act and s.42 of the 2001 Act) do not appear to contemplate that failure to comply with a tribunal order for the payment of money will amount to such contempt, the only "failure" and "refusal" elements, as distinct from "doing" elements, being those directed to attendance before a tribunal, the production of documents and the giving of evidence. 11 It is true that the Fair Trading Tribunal has, for certain purposes, been regarded as a court: see Portazon Pty Ltd v Fair Trading Tribunal [1999] NSWSC 1084. But it is made very clear by both the 1998 Act and the 2001 Act that a tribunal order is not a judgment. If it were a judgment, there would have been no need for s.47 of the 1998 Act and the corresponding s.51 of the 2001 Act. These sections are in identical terms (although, of course, the references to "the Tribunal" have different significations and, in the case of the 2001 provision, the reference to an order of the Tribunal includes a reference to an order made by the former tribunal which is effectively carried over into the new statutory regime by cl 6(3) of Schedule 6 to the 2001 Act): "(1) For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by the Registrar. (2) A certificate given under this section must identify the person liable to pay the certified amount. (3) A certificate of the Registrar that: (a) is given under this section, and (b) is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, operates as such a judgment. 12 Only if the steps described in this provision had been taken under the 1998 Act before it was superseded by the 2001 Act would the order of 13 August 2000 in the present case have had, under the 1998 Act, the effect of a judgment. Taking of the same steps under the 2001 Act in relation to that order (but by reference, of course, to the successor tribunal) would cause the order of 13 August 2000 to be given by the 2001 Act the effect of a judgment. On the evidence, the step entailing the giving by the Registrar of a certificate was duly taken under the 1998 Act before 25 February 2002 but the additional step of filing of the certificate in a court of appropriate jurisdiction (para (b) of sub-s.(3)) was not taken before 25 February 2002 or at all. The order of 13 August 2000 therefore never came to have the effect of a judgment of the court. 13 The procedure under s.47 of the 1998 Act and s.51 of the 2001 Act for the filing of a certificate in the registry of a court bears some resemblance, in general concept, to the procedure available under s.33 of the Commonwealth Arbitration Act 1987 in relation to an award made under an arbitration agreement: "An award made under an arbitration agreement may, by leave of the Court, be enforced in the same manner as a judgment or order of the Court to the same effect, and where leave is so given, judgment may be entered in terms of the award." 14 Such an aware may, however, be sued upon apart from s.33 because of its contractual base: Ferrer and Rollason v Oven (1827) 7 B & C (108 ER 783). An order of the Fair Trading Tribunal or its successor has no contractual force and appears to have no other compulsory characteristic. 15 The tests relevant to "genuine dispute" for the purposes of s.459H of the Corporations Act 2001 focus upon a "plausible contention" (Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785) which is "real and not spurious, hypothetical, illusory or misconceived"(Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452). Having regard to the circumstances of the present case (including that, by reason of s.23(1) of the 1998 Act as continued by the 2001 Act), the current proceedings between the parties are to be regarded as if they had been instituted in the District Court and the application to those circumstances of both the 1998 Act and the 2001 Act, there is ample room for a "plausible contention" which is "real and not spurious, hypothetical, illusory or misconceived" that no "debt" - let alone a "judgment debt" - was due and payable by the plaintiff to the defendant at the time of the issue and service of the statutory demand or at any other time by reason of the tribunal proceedings the course and history of which have been described. 16 The case is accordingly one in which s.459H(3) applies. The order of the court must therefore be that the statutory demand is set aside. The defendant must pay the plaintiff's costs.

Anvic v Constable

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Judgment (7 paragraphs)

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