BNY Trading Pty Ltd v Australia Abalone World Pty Ltd

3 The statutory demand is supported by an affidavit sworn by Ms Pandora Fung, a director of Abalone. She says she has inspected the business records of Abalone, has knowledge of the matters deposed to in the affidavit and the debt is due pursuant to the terms of a Loan Agreement dated 14 November 2010. That agreement appears to have been signed by Mr Wei Guang Yin on behalf of BNY, Abalone and on his own behalf as guarantor of the obligations of BNY. 4 The Loan Agreement recites these matters. 5 The principal sum is $300,000.00. 6 The interest payable is $2,250 per month in arrears. 7 The terms of the repayment are that the whole of the principal sum and any further advances must be repaid to Abalone on or before two years from the date of the agreement which is recorded as 14 November 2010. The recitals say that BNY has requested Abalone to lend the principal sum and Abalone has agreed to lend the principal sum upon the terms of the Loan Agreement. By clauses 1 and 1A, BNY agrees to repay the whole of the principal sum in accordance with the repayment terms, that is, by 14 November 2012 in Australian dollars and in full without set-off or counterclaim. 8 As to the interest, BNY agrees to pay $2,250 each calendar month in arrears until the full loan amount is paid to Abalone with the first interest payment due on a day which is one calendar month from the "Drawdown Date". Each subsequent interest payment date is the same day in each succeeding month until the amount owing is repaid. The term "Drawdown Date" does not appear to be defined but, plainly enough, that date is intended to be the date on which the principal sum is advanced by Abalone to BNY. 9 Clause 1D is in the following terms: 1D Default If an Event of Default occurs, then [Abalone] may declare at any time by notice to [BNY] that an amount equal to the "Amount Owing" is either (a) payable on demand; or (b) immediately due for payment AND (c) [Abalone] may make either or both of these declarations. The making of either of them gives immediate effect to its provisions. 10 Clause 3 is in these terms: 3. Interest on Overdue Amounts (a) If [BNY] does not pay any amount under this agreement on the due date for payment, [BNY] agrees to pay interest on that amount on the Interest Payment Date at the rate of $2,250.00 per month. The interest accrues daily from (and including) the due date up to (but excluding) the date of actual payment … (b) [BNY] agrees to pay interest under this clause on demand from [Abalone]. 11 Clause 8 is in these terms: 8 Acceleration of Debt At the option of [Abalone], the principal sum shall become immediately due and payable by [BNY] to [Abalone] if: (a) [BNY] defaults in payment of any monies payable hereunder or breaches any of these conditions; … 12 It follows that if BNY fails to pay interest, Abalone might at a relevant time by notice to BNY declare that an amount equal to the unpaid interest, being the "Amount Owing", is payable on demand or is immediately due for payment. It also follows that if BNY defaults in the payment of interest under the agreement, Abalone might exercise the right (option) to render (accelerate) the principal sum "immediately due and payable" in which event the "Amount Owing" under the agreement is made up of the unpaid interest and the principal sum. 13 Abalone relies upon the affidavit of Mr Allen Fung sworn 2 December 2011. He says these things. 14 He is a Certified Practising Accountant and a principal employed by Allen & Alan Pty Ltd ("AAPL"). AAPL provided accountancy services to BNY during the period 12 November 2001 to 31 March 2011. Mr Fung has been the accountant for Abalone from 17 April 2009 to now. He says that by reason of his role as accountant for both BNY and Abalone during these periods, AAPL has had custody and/or control of the books and records of both companies. Mr Fung says this at para 9: … upon the authorisation of Mr Yin (a Director of the Defendant and the Plaintiff at the relevant time) I personally went to the Suncorp Bank Branch and deposited the sum of $300,000 into the Trust Account of the Plaintiff's solicitors. I can therefore confirm that the sum of $300,000 was paid as directed by Mr Yin on behalf of the Plaintiff. 15 Mr Fung does not say when Mr Yin authorised him to make the payment or the words used or the specific instructions given by Mr Yin. Nor does Mr Fung say whether he was instructed to make the payment into the trust account of BNY's solicitors expressly to the account of BNY, although the impression conveyed by para 9 is that Mr Yin told Mr Fung to deposit $300,000 of Abalone's funds into the trust account of BNY's solicitors for BNY and not any other company. Mr Fung does not attempt to recall the words used by Mr Yin. Rather, he gives his understanding of what was said to him. 16 At para 10, Mr Fung says this: On 23 October 2011, I gave verbal notice to Mr Yin during our meeting at the premises of [AAPL] that the debt under the Loan Agreement dated 14 November 2010 was immediately due and payable because of the Plaintiff's failure to repay any Interest or Principal Sum. I had authorisation from Shijian Wu (a Director of the Defendant) to make the demand. The meeting was between 2:00pm and 3:00pm and the people present was Mr Yin and me. [emphasis added] 17 The principal sum must therefore have become due and payable at the option of Abalone at some earlier point in order for Mr Fung to contend with Mr Yin on 23 October 2011 that there had been a failure to repay the principal sum. The principal sum was not due for payment until 14 November 2012 in the absence of the exercise of the option under clause 8. 18 Mr Fung may be trying to say by para 10 that because BNY had failed to repay any interest under the agreement, Abalone elected to exercise the clause 8 option to render the principal sum "immediately due and payable" and that by reason of his conversation with Mr Yin between 2.00pm and 3.00pm on 23 October 2011, Abalone was giving oral notice to BNY, through Mr Fung, on instructions from Mr Wu, that the principal sum and all outstanding interest was immediately due for payment. 19 The notice is said to be oral and given in a meeting attended by only the two individuals. 20 Abalone says that there is no requirement to give a written notice and Mr Fung's oral notice is sufficient and the debt is due. It would have been preferable, of course, for Mr Fung to have sworn to what he actually said to Mr Yin. He simply says that he gave verbal notice that the debt was immediately due and payable because of the plaintiff's failure to repay any interest or principal sum. 21 If Abalone had not earlier exercised the option to accelerate, the principal sum would not have formed part of the "Amount Owing" under clause 1D and Mr Fung's notice to Mr Yin, in part at least, would not have been be soundly based. It may have been soundly based as to the interest due at the date of the oral notice if the oral notice was for the interest due as the "Amount Owing". If, on the other hand, Abalone had exercised the option earlier in time to render the principal sum immediately due and payable by reason of a default in the payment of interest, Mr Fung's oral notice of Abalone's clause 1D declaration of the total "Amount Owing" (principal sum and interest), may well be effective, assuming a finding in favour of Abalone on the contested question of fact of whether notice was given. Abalone does not otherwise depose to having exercised the option under clause 8. 22 In support of the application to set aside the statutory demand, Mr Yin swore an affidavit on 22 November 2011 (filed on 23 November 2011) which deposes to these matters. 23 He says that he is a director of BNY. He says that BNY does not owe any debt to Abalone "as it did not borrow any amount of money from [Abalone]". Oddly, Mr Yin then says that if Abalone did lend money to BNY, which he denies, the loan is not now due and payable. Mr Yin must surely know whether Abalone lent $300,000 to BNY or not. It seems odd that he seeks to preserve a position that operates in circumstances where Abalone may have lent $300,000 to BNY. 24 Mr Yin says that although BNY signed the Loan Agreement dated 14 November 2010, it did not receive $300,000 from Abalone under the agreement. Mr Yin says that if the money was lent to BNY, it is not repayable until 14 November 2012. He also says that BNY "… did not receive any written notice from [Abalone] pursuant to clause 1D of the Loan Agreement because [Abalone] is indebted to [BNY] in the sum of $101,612.70, [for] the cost of goods sold and delivered by [BNY] to [Abalone]". 25 As to the loan sum of $300,000, Mr Yin says at para 10 that that sum was deposited into the trust account of lawyers called Whitehead Gupta - Lawyers. The date of the deposit seems to be 17 November 2010. Presumably, Mr Yin was accepting by para 10 that that sum was paid by Abalone and the payment represents the drawdown. Mr Yin does not suggest in his affidavit that the para 10 payment was unrelated to the $300,000 referred to in the Loan Agreement the subject of the statutory demand for the purposes of these proceedings. Mr Yin says that of that sum, $150,000 was used to pay for the costs of renovation and fit-out undertaken by Abalone at the premises rented from another company, Jiloon Pty Ltd ("Jiloon"). 26 Mr Yin says that BNY has sold and supplied goods to Abalone from 28 November 2010 to 1 August 2011 in the amount of $101,612.70. That debt is said to be supported by 16 tax invoices to Abalone given when the goods were delivered. Mr Yin exhibits the 16 tax invoices and a statement dated 18 November 2011 from BNY to Abalone as Exhibit D to his affidavit. He also says that Abalone has failed to pay any of that sum. He says that Abalone ceased trading and abandoned premises leased from Jiloon in or about the middle of August 2011. 27 Exhibit D comprises a printed statement dated 18 November 2011 addressed to Abalone and 16 printed tax invoices which purport to record invoices addressed to Abalone for the sale and supply of the various items recorded in the "Description" section of each invoice. Each invoice sets out columns under the headings "QTY", "ITEM NO.", "DESCRIPTION", "PRICE", "UNIT", "DISC%", "EXTENDED" and "CODE". The invoices range, as Mr Yin says, from 28 November 2010 to 1 August 2011. 28 Mr Yin says that if any interest is payable by BNY to Abalone ($24,750.00), that sum would be set off against the amount of $101,612.70. 29 As to these invoices, Mr Fung says that he has been provided with and has read Mr Yin's affidavit sworn 28 October 2011, which must be a mistaken reference to the affidavit sworn 22 November 2011. Mr Fung refers to para 11 of Mr Yin's affidavit and the tax invoices at Exhibit D (which are the same references in the affidavit sworn 22 November 2011). Mr Fung says that he has inspected the business records of BNY and Abalone. AAPL was responsible for preparing the Business Activity Statements for BNY between 1 July 2010 and 31 March 2011, and on behalf of Abalone between 1 July 2010 and 30 June 2011. He also says that AAPL undertook a complete reconciliation of the accounts of BNY and Abalone for these periods. He says that the tax invoices referred to at Exhibit D of Mr Yin's affidavit "do not appear in the Business Activity Statements for the Plaintiff or Defendant". 30 Inferentially, Mr Fung, and thus Abalone, is contending that the statement and invoices at Exhibit D represent a fiction and no amount is due pursuant to those 16 invoices as Mr Yin asserts. 31 Plainly enough, there is a contention by BNY that a debt is due pursuant to those invoices and a contention by Abalone that no debt is due. 32 Mr Yin swore a further affidavit in support of the application, on 2 February 2012. 33 In that affidavit, Mr Yin responds in part to the affidavit of Mr Fung. 34 Mr Yin says that he withdraws what he had said at para 10 of the earlier affidavit concerning the deposit of $300,000 into the trust account of Whitehead Gupta. He says that he has made enquiries of that firm and that on 17 November 2010, " … the Plaintiff through Allen Fung deposited the sum of $300,000 into the Trust Account of its Solicitors, Gupta Lawyers Pty Ltd [Gupta] to lend it to [Jiloon] to purchase a property at [Arundel, Queensland]". He says that Gupta released $300,000 towards the purchase of the property by Jiloon by making disbursements to four particular payees. Mr Yin attaches a copy of the client ledger of Gupta for Jiloon to his affidavit as Exhibit G. The client ledger for Jiloon shows that Abalone paid amounts of $75,000 and $225,000 on 17 November 2010 to Gupta which are recorded as receipts into what appears to be a trust account on behalf of Jiloon, each with the description, "Part of Settlement [Funds] paid by A fung". Disbursements were made from the client trust account to the Gold Coast City Council, Freeman Lawyers and Ball Construction under the description "Stamp duty" and to the Commissioner for State Revenue under the description "Settlement Cheque". 35 The reference in Mr Yin's second affidavit to the plaintiff having deposited $300,000 into the account of Gupta, must be a mistaken reference to an assertion that Abalone through Allan Fung deposited $300,000 into the trust account of the solicitors, as a contended loan to Jiloon. 36 In any event, Mr Yin's contention is that BNY did not receive the monies. Mr Yin says that Abalone lent money (the same amount recorded as the "Principal Sum" in the Loan Agreement) to Jiloon to enable Jiloon to make the property purchase reflected in the disbursement payments (by reference to a particular settlement), made shortly after (that is, 18 and 19 November 2010), the receipt to the client trust account for Jiloon of the $300,000 on 17 November 2010 which was three days after the date of the Loan Agreement. Perhaps Jiloon received the money for and on behalf of or at the direction of BNY, under direction from Mr Yin. Perhaps BNY borrowed the money from Abalone for and on behalf of Jiloon (disclosed or undisclosed), perhaps not. Findings of fact as to these matters would need to be made having regard to the contest about the question and Mr Yin's withdrawal in the second affidavit of the concession made in para 10 of the first affidavit of Abalone's payment of $300,000. 37 As to para 9 of Mr Fung's affidavit concerning Mr Yin's contended authorisation to deposit $300,000 into the trust account of BNY's lawyers, Mr Yin says that he did not authorise Mr Fung to make that deposit; Gupta is the firm that acts for Abalone (and Mr Fung); and, the sum of $300,000 deposited by Mr Fung into the trust account of Gupta was a loan to Jiloon to part finance Jiloon's purchase of the Arundel property and the entire amount was paid from the trust account for that purpose. 38 As to the oral notice sworn to by Mr Fung (at para 10 of his affidavit), Mr Yin denies, at para 7 of his second affidavit, that Mr Fung gave him notice that the alleged debt under the Loan Agreement was due and payable. Mr Yin says that none of the directors of Abalone spoke to him in relation to any alleged debt owing by BNY to Abalone. Although the Loan Agreement does not require written notice to be given, the difficulty with a notice given orally is that there are no contemporary records of the giving of the notice and thus the question turns upon the resolution of the factual contest between Mr Fung and Mr Yin about what was said on the topic at the meeting at which only they were present. 39 At para 8 of his second affidavit, Mr Yin says that the Loan Agreement was prepared by Mr Fung. Mr Yin says that he was asked by Mr Fung to sign the agreement on behalf of BNY and Abalone and as a guarantor. Mr Yin says that he does not read or understand English and no copy of the Loan Agreement was given to him. Mr Yin did not raise this matter in his first affidavit. At para 8(f), Mr Yin again asserts that BNY did not receive the loan amount of $300,000 from Abalone. 40 There are a number of difficulties with the statutory demand. 41 First, there is the question of whether notice was given under clause 1D upon which the statutory demand operates. Abalone says that Mr Fung gave oral notice on behalf of Abalone which is sufficient and effective for the purposes of the agreement. The giving of the notice is expressly contradicted and is in contest. 42 Second, BNY contends that the monies were not advanced. Plainly enough, Abalone deposited $300,000 into the trust account of the lawyers. Abalone contends, through Mr Fung, that those monies were deposited on instructions from Mr Yin to the trust account of the lawyers for BNY. Mr Yin says that no monies were advanced to BNY. The monies were advanced, he says, to Jiloon and used by Jiloon in Jiloon's acquisition of the Arundel property. Abalone says, in effect, that whether the monies were receipted by the lawyers to the trust account of Jiloon is, in one sense, neither here nor there. The monies were advanced on Mr Fung's evidence to BNY and paid to the lawyers nominated by BNY's director, Mr Yin. If Mr Yin has made arrangements with those lawyers for the monies to be treated as a receipt of monies on trust for Jiloon for a commercial purpose of Jiloon, the treatment of those monies, as between the lawyers and Mr Yin, has nothing to do with Abalone. Abalone says it made the loan to BNY and paid it where it was told to pay it to give effect to the drawdown. However, all of these matters which are central to the claim and the statutory demand are in contest on the facts. 43 It may be that the analysis of those facts will throw up exchanges between BNY and/or Jiloon on the one hand and Abalone on the other about the passage of 11 months between 17 November 2010 (the drawdown date) and 17 October 2011 (not long before the statutory demand of 28 October 2011) concerning a succession of unpaid interest payments. Presumably Abalone was agitating the issue of the non-payment of the interest amounts each month with someone and presumably those responses provoked replies and further responses. 44 In any event, a contest arises about whether the monies were lent to BNY for the purposes of the agreement. 45 These matters are sufficient factors which properly warrant the setting aside of the statutory demand. 46 However, there are also other factors which are problematic from BNY's point of view. 47 First, Mr Yin in the first affidavit accepted that $300,000 had been paid to the trust account of the lawyers. Paragraph 10 of Mr Yin's first affidavit is only consistent with an acceptance that that payment represented a drawdown of the monies by BNY and thus the advance. It is true that Mr Yin put his contention in the alternative in the sense that if the monies were drawdown by BNY, then the monies were not due and payable by BNY until 14 November 2012. Although Mr Yin purported to reserve his position about whether the amount of $300,000 had been advanced to BNY, para 10 is, in truth, consistent with a concession that the monies the subject of the 14 November 2010 Loan Agreement had been drawn down by an advance three days later by Abalone's payment to the trust account of the lawyers. Mr Yin then withdrew that factual position in favour of a contention that the monies were lent to Jiloon. Mr Yin does not explain the curious circumstance of a Loan Agreement of 14 November 2010 with BNY signed by him providing for an advance of $300,000; no advance then made, on his contention, under the agreement; and, a payment of the same amount on 17 November 2010 three days after the agreement, to another company. Mr Yin does not explain any aspect of any relationship, if any, between BNY and Jiloon. 48 Second, Mr Yin says that the interest payments of $24,750.00 are not due because there is a set-off of $101,612.70 by reason of the debt due by Abalone to BNY. The set-off question would not arise if BNY did not have any interest obligations to Abalone which seems to suggest that Mr Yin, consistent with para 10 of his first affidavit, was proceeding on the basis that BNY had borrowed the monies and that interest payments were due monthly in respect of that drawdown. 49 Third, Mr Yin in his second affidavit says (which was not mentioned at all in the first affidavit) that there is another $208,800.00 payable by Abalone to BNY for further goods and services supplied by BNY. It seems odd that Mr Yin discovered between 22 November 2011 and 2 February 2012 another $208,800.00 which, taken together with the earlier $101,612.70, amounts to $310,412.70 which approximates the debt due under the statutory demand. I attach no weight to Mr Yin's late assertion on 2 February 2011 of $208,800.00 of debt due to BNY by Abalone based on goods said to have been sold and supplied in addition to the goods to the value of $101,612.70. 50 However, the position seems to me to be this. The drawdown to BNY is expressly in issue. The deposit of $300,000 into the trust account of the lawyers on 17 November 2010 may well be the drawdown by BNY. There is a central question of fact to be resolved about that matter and the role or relevance of Jiloon in the factual matrix. Secondly, the oral demand is in issue. Both questions go to the efficacy of the statutory demand. Had the question simply been one of whether BNY had established a set-off or cross-demand for $310,412.70 I would have made orders in accordance with s 459H of the Corporations Act. However, the statutory demand must be set aside as a real or genuine dispute subsists as to matters central to the foundation claim and it is not appropriate for this Court to embark upon these contested questions of fact or determine questions of credit which will plainly be alive in the principal proceedings: Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 V.R. 290; MacLeay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743; Canpoint International Pty Limited v Anar International Pvt Ltd [2008] FCA 4. 51 Accordingly, the statutory demand must be set aside. 52 On the question of costs, I propose to make no order as to costs. The applicant has been successful. However, aspects of the affidavits of Mr Yin suggest that the answer to the demand was a set-off. The full amount of that set-off only emerged in the second affidavit. Those facts were not asserted at the outset. In addition, Mr Yin withdrew in the second affidavit the apparent concession in the first. On balance, it seems to me that the proper exercise of the discretion involves no order being made as to costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

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