Carb Royale Pty Ltd v Tonkin [2000] VSC 482

18. In paragraph 1 of the defendant's statutory demand it was stated:

"The company owes Douglas Ewart Tonkin in his capacity as the former liquidator of Brightstone Pty Ltd, Mydell Lodge Pty Ltd and Lapis Pty Ltd of Hall Chadwick, 459 Collin Street, Melbourne ("the creditor") the amount of $34,584.90 being the total of the amounts of the debt described in the schedule."

22. In the affidavit accompanying the statutory demand the defendant deposed:

"1. I am the creditor named in the statutory demand which this affidavit accompanies, relating to the debts owed by the debtor. 2. I am the person who has had dealings with the debtor that gives rise to the debts. 3. The total of the debts mentioned in the statutory demand is due and payable by the debtor. 4. I believe there is no genuine dispute about the existence or amount of the debt."

26. In the affidavit of Patrick Foster, a director of the plaintiff supporting the application to set aside the statutory demand, he deposed that the defendant was on the plaintiff's initial request appointed by the court as liquidator of the companies Brightstone, Mydell Lodge and Lapis Pty Ltd. Foster has deposed that the defendant is and was at all times an employee of the firm of Hall Chadwick while he was acting as the liquidator. He has deposed that he believed that the defendant was not a proprietor or partner of that firm and that such firm issued invoices for work they allegedly carried out and that such firm claims legal fees in the sum of $17,668 which appear to be included in the demand. Foster further deposed that he believed that the amount claimed comprises of two separate alleged debts claimable by either Hall Chadwick or Ponte Earle Harrick and not the defendant. Exhibited to his affidavit were two invoices one for the sum of $15,000 and a further one for $1,916.90 each of those invoices is on paper on which the letterhead is that of "Hall Chadwick, Chartered Accountants and Business Advisors". However in respect of each invoice which was directed to Foster it stated:

"DR to DE Tonkin, account for professional services."

Each of those invoices appear to relate directly to the first two sums set out in the schedule to the statutory demand which are identified as "liquidator's fees" which are for the two amounts $15,000 and $1,916.90 and are not the subject of the third amount claimed by way of statutory demand, "legal fees" - $17,668.

31. By his affidavit Foster further asserts that the affidavit sworn by the defendant and which accompanied the statutory demand, as served on the plaintiff, that it did not appear that the affidavit had been properly or correctly sworn as it failed to state the name, address and position of the person who witnessed the swearing of that affidavit.

34. Further in his affidavit Foster deposes that the "defendant and the firm Hall Chadwick did not exercise skill and diligence as required by the liquidations" and that as a result the companies and the plaintiff had been prejudiced in their claims against former directors. Foster has deposed in general terms that the defendant and Hall Chadwick failed to complete investigations into the affairs of the three companies and that they failed to translate the results of such investigations into causes of action against the former directors of the companies. He deposed that causes of action would have become statute barred had his solicitors not insisted and commenced proceedings. He further deposes that after his solicitors took that action to protect the interests of the companies and the plaintiff, the defendant elected to use his own solicitors and appointed Ponte Earle Harrick. Further, Foster deposed that these solicitors took no steps or action to serve the proceedings, which had issued, on those defendants. This affidavit, as sworn by Foster, although making general allegations against the defendant and the solicitors Ponte Earle Harrick, does not seek to quantify or identify any loss suffered by the plaintiff in consequence of the alleged failure to exercise skill and diligence in respect of the liquidation.

37. In an affidavit sworn by the defendant on 15 May 2000 he deposed that he was appointed as liquidator of the aforesaid three companies, on the application of the plaintiff, on 12 February 1996 by order of the Federal Court of Australia. He has deposed that after being appointed as liquidator and at the request of the plaintiff, Behan & Speed were appointed as his solicitor to advise him in relation to any potential actions that may have been available to the companies in liquidation. Such solicitors remain and are the solicitors on the record for the plaintiff in these proceedings. The defendant further deposed that Behan & Speed acted as his solicitor in relation to issuing two actions one in the Magistrates' Court and one in the Supreme Court. He deposed, however, that he lost confidence in the advice he was receiving from such solicitors and retained other solicitors. He has further deposed that he did not proceed with the Magistrates' Court proceeding nor did he serve the Supreme Court proceeding because he did not have any funds available to him and that the plaintiff being the only creditor of the companies had consistently failed to provide him with an indemnity in relation to his fees backed by an appropriate security.

40. The defendant, by his affidavit, has deposed that he agreed to resign as liquidator of the aforesaid three companies on the basis that his outstanding fees and disbursements including legal costs would be paid by the plaintiff. Correspondence was exchanged between the solicitors for the defendant and solicitors for the plaintiff in respect to the payment by the plaintiff of the fees and expenses incurred by the defendant while acting as liquidator of the aforesaid companies. In a letter from the solicitors for the defendant to Foster on 7 September 1999 it was stated that the defendant was prepared to resign as liquidator of the companies although denying that there was any need for the defendant to do so. The letter set out that the defendant was prepared to resign as liquidator but required payment of all outstanding fees and disbursements including legal costs. In a further letter from the defendant's solicitors to the plaintiff's solicitors and dated 24 September 1999 the letter referred to a response of the plaintiff's solicitors dated 10 September 1999 and stated:

"We presume from that response that your client is agreeable to paying Mr Tonkin's fees being a total of $15,000 plus further fees indicated in the letter which amount to $1,916."

44. The letter further referred to the fact that the plaintiff had not responded in respect of the defendant's legal fees. The letter enquired as to whether the plaintiff required them to be assessed by a cost consultant.

47. In a letter from Foster to the defendant dated 29 September 1999 Foster referred to his letter of 10 September 1999 stating that it "did not dispute the fees". It further stated:

"In the fourth last paragraph of my letter I made it quite clear when your fees would be paid and as I did not take up any issue about the fees why are you now making the demands that you make in your letter".

51. In a further letter from the defendant to Foster and dated 30 September 1999 the defendant enclosed accounts for the liquidator's costs which accounts were those referred to and being for the sum of $15,000 and $1,916.90. In his letter the defendant stated that the accounts were for "the liquidator's costs". Further by his letter the defendant stated that he confirmed the agreement of Foster to pay those amounts on the handing over of books and records to the new liquidator. Foster further stated:

"I infer from your letter of 29 September that you also agree to pay Mr Harrick's account including costs of the prospective application as assessed by an independent cost consultant."

55. In a letter from Foster to the defendant on 10 September 1999 Foster stated, inter alia:

"Your fees will be paid at the time that the new liquidator or I arrange to collect the files and all other material relating to the liquidation from your office".

59. The defendant resigned as liquidator of the aforesaid three companies and on 8 October 1999 it was ordered by the court that Anthony D'Aloia be appointed liquidator of those companies. In such proceedings the defendant swore and filed an affidavit setting out the reasons why he agreed to resign as the liquidator of the three companies. I do not need in these proceedings to set out the detail of the affidavit sworn by the defendant in respect to his resignation as liquidator of the three said companies.

62. Considerable material has been put before the court in addition to that which I have referred to relating to whether the plaintiff agreed to pay to the defendant legal costs incurred by him in the liquidation of the three companies which legal fees are identified in the statutory demand as $17,668.

65. By his affidavit sworn in 13 June 2000 Foster has deposed that at the time he demanded the defendant's resignation he "indicated" that he would meet the defendant's reasonable fees. He has deposed further that this did not include the defendant's legal costs purportedly incurred with Ponte Earle Harrick. He has specifically denied that he ever personally or on behalf of the plaintiff agreed to pay the defendant's legal fees. He has further contended in that affidavit that it was not open to the defendant to infer that he agreed to pay additional legal costs.

68. In these proceeding the task that must be undertaken is to determine pursuant to s. 459H of the Corporations Law whether there exists a genuine dispute between the plaintiff and the defendant about the existence or amount of the debt to which the demand relates. I am of the view that having regard to the affidavit of the defendant sworn 15 May 2000 and the concession made by Foster in his affidavit of 13 June 2000 that at the time that he required the defendant to resign as liquidator he indicated that he would meet his reasonable fees that there exists no genuine dispute between the plaintiff and the defendant concerning the existence of the defendant's claim for $16,916.90. It has been contended on behalf of the plaintiff that there does, however, exist a genuine dispute between it and the defendant concerning the payment by the plaintiff of legal fees incurred by the defendant in the sum of $17,688. The defendant's contention is that it was agreed by Foster, on behalf of the plaintiff, that on the defendant resigning as liquidator of the aforesaid companies the plaintiff would pay the fees of the solicitors retained by the defendant. This matter is disputed on behalf of the plaintiff.

71. In Mibor Investments Pty Ltd v Commonwealth Bank of Australia[1] Hayne J when considering whether a statutory demand should be set aside because there existed a genuine dispute regarding indebtedness said[2]:

"In most cases it is not expected that the court will embark upon an extended enquiry in order to determine whether there is a genuine dispute between the parties and certainly will not attempt to weigh the merits of that dispute. All the legislation requires is that the court conclude that there is a dispute and that it is a genuine dispute."

75. In Chadwick Industries (Southcoast) Pty Ltd v Condensing Vaporisers Pty Ltd[3] Lockhart J said[4]:

"The notion of a `genuine dispute' in this context suggests to me that the court must be satisfied that there is a dispute and that it is not plainly vexatious or frivolous. It must be satisfied that there is a claim that may have some substance. On the other hand the court must be careful, because if all an applicant has to do is to assert both a claim and some basis for it, without more, it would mean that almost every case that the court would set aside statutory demands where application is made to that effect."

79. Having regard to the correspondence exhibited particularly to the affidavit of the defendant sworn on 15 May 2000 the conclusion that I have reached is that there is a "genuine dispute" between the plaintiff and the defendant with respect to the demand made by the defendant as identified in the schedule in the statutory demand being identified as 18 October 1999 - legal fees - $17,688.

82. The next question that must be determined is whether there exists a genuine claim that the plaintiff has against the defendant by way of counterclaim set off or cross demand as asserted by Foster being that the defendant did not exercise the skill and diligence required by him as the liquidator of the three companies. As to this matter the present liquidator of the three companies, Anthony D'Aloia, has deposed in an affidavit sworn by him on 30 June 2000 that subsequent to being appointed as the liquidator of those companies, after the defendant had resigned, he perused the books and records of the companies, he read reports or advices prepared by the defendant during the course of his period as the liquidator of the companies and that he undertook his own investigations and analysis of the financial affairs of the companies. He has proffered the view that it seems to him that there was a plausible cause of action against the directors of Brightstone and Lapis for trading whilst insolvent, pursuant to s. 592 of the Corporations Law. It appears from that affidavit that the defendant had concluded and expressed the view that Brightstone Pty Ltd and Lapis Pty Ltd were not insolvent until the plaintiff obtained judgment against them on 19 May 1993 in the sum of $267,456. It appears from the affidavit that at its highest there is a difference of opinion between D'Aloia and the defendant whether Brightstone Pty Ltd and Lapis Pty Ltd traded whilst insolvent and whether, if such was the case, there was a basis for proceedings being brought against the directors of those companies for trading whilst the companies were insolvent. At its highest it would appear that the view expressed by D'Aloia, in his affidavit, differed from the view of the defendant as to whether Brightstone Pty Ltd and Lapis Pty Ltd traded while insolvent thereby giving rise to a cause of action against such directors which was not instituted by the defendant while the liquidator of those companies. It is apparent from the affidavit sworn by D'Aloia that the defendant addressed the question as to whether the companies traded whilst insolvent concluding that the books and records of the companies did not establish such conclusion and that it would be difficult to prove insolvency prior to the time that the plaintiff obtained judgment against such companies and further that the company records did not readily support a contention that Brightstone was insolvent at a time before the plaintiff obtained judgment against such company on 19 May 1993. On this material I am unable to conclude that there was any negligence on the part of the defendant which caused him to not institute proceedings against the directors of Brightstone Pty Ltd and Lapis Pty Ltd for trading whilst such companies were insolvent. I cannot be satisfied that there exists the basis for claim in negligence on the part of the plaintiff against the defendant for his acts and omissions while the liquidator of Brightstone Pty Ltd and Lapis Pty Ltd which constitutes a "genuine claim" that the plaintiff has against the defendant which may be off set or cross claimed by the plaintiff against the defendant. Applying the formula provided by s. 459H(2) of the Corporations Law it is my view that the substantiated amount of the demand of the defendant against the plaintiff is the sum of $16,916.90.

85. On behalf of the plaintiff it was further submitted that the affidavit sworn by the defendant and which accompanied the statutory demand served on the plaintiff did not comply with the provisions of s. 459E(3)(a) and (b) of the Corporations Law. It is provided by s. 459E(3) of the Law that:

"(3) 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 amount of the debts, is due and payable by the company; and (b) complies with the rules."

89. On behalf of the plaintiff it was submitted that the affidavit purportedly sworn by the defendant on 14 April 2000 which accompanied the statutory demand served on the plaintiff did not verify that the debt or total amounts of the debt was due and payable by the plaintiff and further it did not comply "with the rules".

92. In Azed Developments Pty Ltd v Frederick & Co Ltd[5] Hayne J held that the requirement provided by s. 459E(3) that the demand must be accompanied by an affidavit that "verifies that the debt or the total of the amount of the debts is due and payable by the company" is satisfied if the affidavit formally affirms that matter as against proving or demonstrating the same by evidence.

95. Rule 5.2 of Ch. V of the Supreme Court - Corporations Law Rules 1999, provides:

"For the purposes of sub-section 459E(3) of the Law the affidavit accompanying a statutory demand relating to a debt or debts owed by a company must - (a) be in accordance with Form 7 and state the matters mentioned in that form; and (b) be made by the creditor or by a person with the authority of the creditor or creditors; and (c) not state a proceeding number or reference to a court proceeding, in any heading or title to the affidavit."

99. The affidavit sworn by the defendant and which accompanied the statutory demand was that as set out in paragraph 6 of this judgment.

102. That affidavit of the defendant formally affirmed the total of the debts alleged by the defendant to be due and payable and it complied with Form 7 of the Supreme Court Corporations Law Rules 1999 ("Chapter V").

105. It was further submitted on behalf of the plaintiff that the affidavit sworn by the defendant and which accompanied the statutory demand did not comply with the "rules" in that the person before whom the affidavit was sworn did not legibly write, type or stamp below his signature in the jurat his name and address and statement of the capacity in which he had authority to take the affidavit as is required by Rule 43.01(7) of Chapter 1 of the Rules of the Supreme Court. That rule provides:

"The person before whom an affidavit is sworn shall legibly write, type or stamp below his signature in the jurat his name and address and statement of the capacity in which he has authority to take the affidavit."

It is provided by s. 123C(1)(g) of the Evidence Act 1958 (Vic) that:

"(1) Affidavits for use in any court or for any purpose or in any way whatsoever authorised by law whether by or under any act of Parliament or by custom or otherwise may be sworn and taken within Victoria before - (g) a natural person who is a current practitioner or interstate practitioner within the meaning of the Legal Practice Act 1996."

It is further provided by s. 123(3) of that Act that:

"(3) The person before whom an affidavit is sworn or taken must legibly write, type or stamp his or her name and address below his or her own signature where it appears on the affidavit. Penalty applying to this sub-section: 1 Penalty unit."

113. Pursuant to s. 459E(3)(b) of the Corporations Law it is provided that where the debt, the subject of the demand, is not a judgment debt the demand must be accompanied by an affidavit that "complies with the rules". Section 9 of the law provides:

"'Rules' means (a) Rules of the Federal Court; or (b) Rules of the Supreme Court or of this or another jurisdiction as the case requires."

117. In Spencer Constructions v Aldridge[6] the Full Court of the Federal Court of Australia[7] held that the:

"`Adoption' of the rules of a court `as the case requires' is apt to cover the rules of any court which has jurisdiction to hear and determine any application in relation to, or arising out of, the service of a statutory demand."

121. Rule 1.3(1) and (2) of the Supreme Court (Corporations Law) Rules 1999 (Chapter V) provide:

"(1) Unless the court otherwise orders these rules apply to a proceeding in the Court under the Corporations Law or the ASC Law, that is commenced on or after the commencement of these rules. (2) The other rules of the Court apply so far as they are relevant and not inconsistent with these rules, to a proceeding in the Court under the Corporations Law, or the ASC Law, that is commenced on or after the commencement of these rules."

Chapter V of the Supreme Court Rules commenced on 14 February 2000.

126. It is by Rule 5.2(a) of the Supreme Court (Corporations Law) Rules 1999 (Chapter V) that provides that the affidavit accompanying the statutory demand relating to a debt or debts owed by the company "must":

"(a) be in accordance with Form 7 and state the matters mentioned in that form."

In Form 7, in its layout it is provided that below the signature of the deponent there is:

"Before me: ......................................................................... Signature and designation of person before whom the deponent swears or affirms affidavit"

132. It was not submitted on behalf of the defendant that Rule 43.01(7) of Chapter 1 did not apply to the affidavit sworn by the defendant and accompanying the statutory demand. Nor was it submitted that the provisions of s. 123(3) of the Evidence Act did not have application to an affidavit sworn and taken in Victoria, which affidavit accompanies a statutory demand which is served on a debtor.

135. The affidavit accompanying the statutory demand in this case bore an illegible signature beside the typed words "Before me". Below that signature there was not legibly written, typed or stamped the name of the person before whom the affidavit was sworn or taken, and address of that person as is required by s. 123(3) of the Evidence Act. Further, below the signature of the person for whom the affidavit was sworn and taken there was not legibly written, typed or stamped the "capacity" in which that person had authority to take the affidavit as is further provided by Rule 43.01(7) of the Chapter 1 by way of addition to the other matters as required to be legibly written, typed or stamped pursuant to the Evidence Act.

138. Rather it was submitted on behalf of the defendant that the fact that the matters referred to were not legibly written, typed or stamped below the signature of the person for whom the defendant swore his affidavit, was a defect which did not cause a substantial injustice and which should not cause the court to set aside the statutory demand.

141. In the affidavit sworn by Mark Christopher Harrick on 15 May 2000 and filed in these proceedings he identifies that he was the person before whom the defendant swore his affidavit on 14 April 2000 which was the affidavit which accompanied the statutory demand. The business address of Harrick appeared from the body of that affidavit. In a further affidavit sworn by Harrick on 17 May 2000 and filed in these proceedings he states the fact that he is a solicitor and identifies again his business address. The statement by Harrick that he is a solicitor in my view is sufficient to identify him as being a practitioner within the meaning of the Legal Practice Act 1996. It was at that time and in these proceedings that the name, address and the capacity in which Harrick had authority to take the affidavit sworn by the defendant was identified.

144. Section 459J(1) and (2) of the Corporations Law provides:

"(1) On an application under section 459G, the court may by order set aside the demand if it is satisfied that: (a) because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or (b) there is some other reason why the demand should be set aside. (2) Except as provided in sub-section (1), the court must not set aside a statutory demand merely because of a defect."

148. In s. 9 of the Corporations Law a "defect in relation to a statutory demand" is defined to include:

"(a) an irregularity; and (b) a misstatement of an amount or total; and (c) a misdescription of a debt or other matter; and (d) a misdescription of a person or entity."

152. The failure of Harrick to comply with the requirements of R. 43.01(7) of Chapter 1 of the Rules of the Supreme Court, his failure to state his "designation" as is provided by Form 7 of the Corporations Law Rules 1999 (Chapter V) and his failure to comply with the provisions of s. 123(3) of the Evidence Act 1958 (Vic), which may expose him to a penalty under that provision, does not constitute "a defect in the demand". Rather the omissions of Harrick, the person before whom the defendant swore the affidavit which accompanied the demand, served on the plaintiff caused there to exist a defect in relation to the demand.

155. As the defect is not "a defect in the demand" the provisions of s. 59J(1)(a) and (2) are to be put to one side and not have regard to in determining whether the statutory demand in this case should be set aside: Spencer v Aldridge;[8] Equus Corp v Perpetual Trustees[9] (each of which decisions are decisions of the Full Court of the Federal Court of Australia). Accordingly, regard must be had to the provisions of s. 459J(1)(b) and (2) of the Corporations Law. In Equus Corp v Perpetual Trustees[10] the court held that there was "no ironclad rule that a defective affidavit will mandate the setting aside of the demand". In my view, of significance is the fact that there was no error in relation to the demand constituted by any act or omission of the defendant. Rather the defect in relation to the demand was a defect brought about by the omissions of the person before whom the affidavit was sworn.

158. At the commencement of these proceedings there was no material before the court to disclose the identity of the person before whom the affidavit was sworn, his address and the capacity which he had to take an affidavit. It was during the course of these proceedings and in consequence of the two affidavits of Harrick, as I have previously referred to, that there emerged the name of the person before whom the affidavit of the defendant was sworn, his address and the capacity which he had to take affidavits. On the emergence of those facts during the course of these proceedings although the defect in relation to the demand was not corrected as such nevertheless by the two affidavits sworn by Harrick there was provided to the plaintiff factual material which enabled it to be aware of who the person was before whom the defendant swore his affidavit, his address and the capacity which he had to take an affidavit. In such circumstances, and particularly having regard to the fact that there was no defect in relation to the demand which could be directly visited on the defendant, the conclusion that I have reached is there is no reason why the demand should be set aside. To set aside the demand in the circumstances of this case, there being a defect in relation to the demand of the nature that I have referred to, would be to set aside the demand "merely because of a defect". However, insofar as it was not until 17 May 2000 in these proceedings that the defect in relation to the demand was in substance overcome, in my view it was appropriate for the Senior Master to order that the plaintiff have its costs until 17 May 2000 and thereafter the plaintiff should pay the defendant's cost of the proceedings. No argument was addressed to me on this appeal that the orders as to costs made by the Senior Master should be varied in some way in the event of the appeal being dismissed.

161. For the reasons previously expressed I have determined that the statutory demand should be varied so as to be a demand for the sum of $16,916.90. There has not been established any matter which causes me not to vary the demand so that the demand is for the sum of $16,916.90. Further, there has not been established before me any ground that the demand as so varied should have effect from a date or time otherwise than when it was served on the plaintiff.

164. In the result and for the reasons stated the appeal against the order made by the Senior Master in these proceedings on 2 October 2000, fails.

167. It is ordered that the appeal of the plaintiff against the orders made by the Senior Master in these proceedings, on 2 October 2000, be dismissed. It is further ordered that the orders made in these proceedings by the Senior Master on 2 October 2000 be confirmed and further it is ordered that the plaintiff pay the defendant his costs of this appeal.

[1] [1994] VicRp 61; (1993) 11 ACSR 362

[5] 12 ACLC 949

[6] [1997] FCA 681; (1997) 24 ACSR 353

[8] (1997) 14 ALR 44

[9] (1997) 25 ACSR 675