Johnson v AGC (Advances) Limited (unreported, Lockhart J, 21 May 1992).

Scanhill Pty Ltd v Century 21 Australasia Pty Ltd [1993] FCA 618; (1993) 12 ACSR 341.

Rohalo Pharmaceuticals Pty Ltd v R P Scherer SpA (1994) 15 ACSR 347.

Mr C R Newlinds of counsel instructed by Heidtman and Co solicitors, appeared for the applicant.

Mr G Moore of counsel instructed by Messrs Caruana Kay and Barry solicitors, appeared for the respondent.

1. Orders that the respondent's motion brought by notice of motion

filed on 24 March 1995 be dismissed.

2. Orders that the respondent pay the applicant's costs of the

motion.

3. Directs that the proceedings be listed at 2.00 pm on Thursday 20

April 1995 for the making of consequential orders.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the

LINDGREN J By its further amended application filed on 22 February 1995, the applicant ("Chase") applies for orders that the respondent ("Oscty") be wound up and that John P Smith of Messrs Horwath and Horwath be appointed as liquidator of Oscty. Chase applies in its capacity as a creditor of Oscty under s 459P of the Corporations Law ("the Law") and asks the Court to exercise the power given to it by s 459A to order Oscty as an insolvent company to be wound up in insolvency.

2. Chase seeks to invoke the statutory presumption of insolvency provided for in sub-s 459C (2) of the Law by reason of Oscty's failure to comply with a statutory demand which was served on it on 12 September 1994 on behalf of Chase. The statutory demand bore date 9 September 1994 and asserted that Oscty owed Chase $8,340,888.73. The 21 day period allowed for compliance with the statutory demand expired on 3 October 1994. At that time the demand was still in effect and Oscty had not complied with it. Accordingly, subject to the possibility referred to below as to an extension of the time for Oscty's applying for an order setting aside the demand, Oscty is, by the operation of sub-s 459F (1) of the Law, taken to have failed to comply with the demand on 3 October 1994, and since this was during the period of three months ending on the day on which Chase's application was filed (the application was filed on 10 November 1994), the statutory presumption of insolvency provided for in sub-s 459C (2) of the Law has been activated.

3. On 22 March 1995, Oscty filed a "Notice of Intention to Appear at Hearing and of Grounds of Opposition to a Winding Up Application" and an affidavit verifying that notice. The only ground of opposition stated in the notice was that the statutory demand was "not a valid statutory demand within the meaning of the Corporations Law".

4. By a notice of motion filed on 24 March 1995, Oscty has sought the following substantive relief:

"2. An order pursuant to Section 1322 (4) (d) of the

Corporations Law extending the period for instituting

a procedure (sic) under Section 459G of the

Corporations Law.

3. An order pursuant to Section 459G setting aside the

Section 459E demand dated 9 September, 1994."

5. It is this motion which is currently before the Court and to which these reasons relate. Although it was not appropriate that Oscty's application be made by motion in the winding up proceedings (see Order 71 r 36B of the Federal Court Rules), Chase took no point as to this.

6. It is convenient to set out the facts in the form of a chronology.

7. By an agreement in writing of this date Chase agreed to provide to Oscty financial accommodation up to an amount of $7,250,000.00. The financial accommodation was in fact provided. Chase took as security the following:

(a) A mortgage dated 25 May 1990 registered number Z62149 over "The

Exchange Hotel" at 34-36 Oxford Street Sydney being the land the

subject of folio identifier 15/6064;

(b) a mortgage dated 25 May 1990 registered number Z62150 over an

adjoining commercial property at 38-46 Oxford Street Sydney being

the land the subject of certificate of title vol 13897 folio 203;

(c) a personal guarantee dated 23 May 1990 by Barrington Thomas Tilley

(d) a "charge" dated 23 May 1990 from Elizabeth Carolyn Court over

liquor licence number 102224 in respect of The Exchange Hotel.

8. The term of the facility was 36 months from the date of draw-down. The loan was to be fully drawn within 60 days from 10 May 1990. The evidence does not show when the loan was drawn down. Oscty undertook to pay $97,258.30 each month as interest followed by a thirty sixth "balloon" payment of $7,347,829.19.

9. By a deed of variation of this date, the amount of the facility was increased to $7,882,213.53.

10. The South Sydney City Council ("the Council") issued what has been referred to in the case as a "fire safety order" in respect of the mortgaged properties. It was not in dispute that the notice required performance of work on the mortgaged properties and that compliance with the notice would necessitate substantial expenditure.

11. As at this date Oscty had defaulted in repaying principal and was also in arrears in payment of interest to the extent of $142,266.21. Oscty has not made payments to Chase since this time, although Chase has received rents from the mortgaged properties (see below).

12. Chase appointed a receiver in respect of the mortgaged properties.

13. The receiver gave notice to the tenants of the mortgaged properties to pay rent to him.

14. Chase took possession of the mortgaged properties.

15. The solicitors for the Council wrote to Oscty referring to the fire safety order and to the fact that some of the work which it required remained outstanding. The letter called for provision of a written undertaking by 10 January 1994 that the outstanding work would be completed on or before 10 February 1994, in default of which, according to the letter, injunction proceedings would be commenced in the Land and Environment Court seeking orders that Oscty comply with the outstanding aspects of the fire safety order.

16. Chase set about selling the mortgaged properties. Chase expended $28,136.40 in advertising and otherwise promoting a sale of them. It obtained a valuation report of "Valuation Services" of the property at 38-46 Oxford Street as at 29 April 1994 in a sum of $3,600,000.00. It had previously (as at 22 December 1992) obtained a valuation of Manenti, Quinlan and Associates Pty Ltd of the freehold of The Exchange Hotel in a sum of $1,800,000.00. Those amounts totalled $5,400,000.00. Chase engaged Metro Commercial Property Services (Mr Kurt Braune) to call for and receive tenders for the properties. That firm received four "tenders" in April 1994. Because they assumed some importance in the case, I set them out as follows:

(i) A tender from Western Districts Loan and Finance Co Pty Ltd

("Western Districts") of $7,125,000.00 subject to:

"A. There being no outstanding notices affecting the

premises as at settlement.

B. Satisfactory solution to roof overflow problem which

tenants state exist.

C. Satisfactory Structural Engineer's Report.

D. Termite, Borer, White Ant Report.

E. Inspection and approval of all leases.

F. Settlement 4 months."

That tender was made on the letterhead of Messrs H M Symonds and

Britten, the solicitors for Western Districts.

(ii) A tender from Fobeca Pty Limited which merely said:

"Fobeca would like to express interest in a acquiring the above

property on Oxford Street for the sum of $6 million."

(iii) A handwritten letter from Heston Pty Ltd indicating that the

writer would be pleased:

"to sit down and negotiate a contract ... based on the

following criteria;

1/ Purchase Price $7,000,000.00

2/ Deposit $100,000.00

c/ Settlement minimum six months, subject to satisfactory

strata approval and partial release/discharge,

d/ All Audinance (sic) 70 items being completed and

approved by vendor prior to settlement."

(iv) A tender dated 22 April 1994 from Newstead Finance Pty Limited,

signed by Paul Veron ("Veron"), on the following terms:

"(1) Purchase price $7 million.

(2) Deposit 10% of purchase price, payable as follows:-

(a) $350,000 on exchange of contracts;

(b) a further $350,000 paid on the vendor attending

to work required by any Fire Notices.

(3) The purchaser is to have the right to apply for a Strata

Plan of Subdivision of the property 38-46 Oxford St and

the vendor will give all consents and do all things

reasonably required by the purchaser to effect strata

approval.

(4) The vendor not to require the purchaser to settle for

180 days from exchange of contracts.

(5) The vendor will consent to the registration of the

strata plan and shall if required grant partial

discharges to the purchaser of any lot or the hotel as

requested by the purchaser."

17. Chase discovered by search, that Thomas Geoffrey Cahill ("Cahill") who was a director of Oscty was a director of Western Districts, and that 1616 of the 1617 issued shares in the capital of Western Districts were held by Jamtac Pty Ltd, a company which had been dissolved on 22 May 1984. Peter John Carden ("Carden"), a second vice president of Chase, gave evidence that he distrusted Cahill and because of this and the other matters to which I have just referred, issued instructions that Chase would not deal with Western Districts.

18. The bankrupt Tilley told Carden that he represented a potential purchaser. Carden told him that tenders had not yet closed, that Chase had rejected an offer of $7.5 million, that indications pointed to a sale price in excess of $8 million, that Chase was hoping for in excess of $8.5 million, and that gross rentals exceeded $1 million per year. Carden gave evidence that in fact individuals at Metro Property Services had told him several times prior to his discussion with Tilley that they expected that the sale price would exceed $8 million but had not told him that Chase might get a price in excess of $8.5 million, although he (Carden) was hoping for such a figure in order that the debt might be paid out in full.

19. In the event, negotiations took place between Chase and Veron and individuals associated with him. As a result, a "Put and Call Option Agreement" of this date was entered into, under which two companies associated with Veron and others were given, in consideration of payment of a premium of $362,500.00 to Chase, an option to purchase the properties for $7,250,000.00. The call option was exercisable by 29 April 1995 (but not before 29 October 1994), in default of which exercise Chase had an option exercisable by 29 May 1995 to compel the companies to purchase the properties at that price. The Put and Call Option Agreement included an undertaking by Chase to carry out the outstanding work under the fire safety order to the satisfaction of the Council. As well, Chase acknowledged that the companies would be entitled to apply to the Council for approval of a strata subdivision of the properties and undertook to execute instruments and documents required to assist for that purpose.

21. Oscty's solicitors, Caruana Kay and Barry ("CKandB") wrote to Chase's solicitors, Heidtman and Co ("Heidtman") in relation to the statutory demand, asking whether the properties had been sold and if so, the sale price, and when settlement was due to take place. As well, the letter requested copies of statements relating to Oscty's loan accounts for the preceding 14 months.

22. CKandB wrote a letter to Mr Cahill a copy of which is, for convenience, annexed to these reasons and Marked "A".

23. Heidtman replied advising that the properties were "under contract by virtue of a Put and Call Option Agreement dated 29 April, 1994". The letter advised that "the sale price" was $7,250,000.00 and that settlement was due to take place within six weeks of either the purchaser's or Chase's exercising the call option or put option as the case might be. The letter advised that the call option was exercisable up to 29 April 1995 and the put option "after 30 April 1994, up to 30 May 1995" (this was an error - the dates mentioned in the Put and Call Option Agreement were 29 April 1995 and 29 May 1995).

24. The letter pointed out that since $8,340,888.73 was outstanding as at 30 August 1994 (the amount mentioned in the statutory demand) there would clearly be a shortfall. The letter also enclosed copies of "the relevant statements for the loan account" covering the period from 1 July 1993 to 30 June 1994.

25. CKandB again wrote to Heidtman, a letter, a copy which is, for convenience, annexed to these reasons and marked "B". This letter was never formally answered although the information sought in it has been provided to Oscty in the course of these proceedings.

26. Chase's application commencing these proceedings was filed.

28. On the return of the application on this date before Registrar Sexton, Cahill purported to appear for Oscty and said that Oscty did not oppose the application to wind up but merely objected to the appointment of the liquidator nominated in Chase's application.

29. By this time, the work necessary to cause the properties to comply with the notice issued by the council was completed at a cost to Chase of some $300,000.00.

30. Oscty filed and served the "Notice of Intention to Appear at Hearing and of Grounds of Opposition to a Winding Up Application" and affidavit verifying referred to earlier. Mr Newton, solicitor of Heidtman, telephoned Mr Barry, solicitor of CKandB, inquiring as to the nature of the dispute raised by Oscty, and Mr Barry told him that Oscty disputed the validity of the statutory demand on the ground that it did not specify each debt claimed. As well, Mr Barry said that it was not disputed that Oscty was indebted to Chase in an amount of the order of $8 million.

31. Chase's application was before the Court for the second time. Oscty's notice of motion was filed in court. On this date, for the first time, Oscty made complaint in relation to the Put and Call Option entered into by Chase. Oscty had seen the Put and Call Option Agreement for the first time only on 24 March 1995.

34. The issues raised by Oscty's notice of motion are as follows:

1. Does the Court have power to extend the period of 21 days after

service of the statutory demand in which a company may apply to

the Court under s 459G of the Law for an order setting aside

the statutory demand?

2. If so, should the time be extended in the present case from 3

October 1994 to the date on which Oscty's notice of motion was

filed, namely 24 March 1995.

3. If so, should an order be made setting aside the statutory

35. Towards the end of the hearing before me, counsel for Chase said that his instructions were not to contest that the Court had the power referred to in (1) above. Whether the Court does have that power has been the subject of conflicting decisions. In particular, there is a conflict between decisions of two intermediate appellate courts, namely the decision of the Queensland Court of Appeal in Cavetina Pty Ltd v Synthetic Dyeworks Industries Pty Ltd (1994) 14 ACSR 274 and that of the Full Court of the Supreme Court of Victoria in David Grant and Co Pty Ltd v Westpac Banking Corporation [1995] VicRp 69; (1995) 15 ACSR 771. On 30 March 1995, the day prior to the hearing before me, the issue was considered afresh by Santow J in Sydar Pty Ltd v K Simmonds Finance Pty Ltd, unreported, NSW/Santow J (Eq Div 1320/95).

36. I find it convenient to deal first with the third issue raised above.

37. Sections 459H and 459J of the Law set out the grounds on which the order sought by Oscty setting aside the statutory demand may be made. Oscty relies on both of these sections. For the purposes of s 459H, Oscty says that it has an offsetting claim against Chase arising out of a breach of duty by Chase in connection with its entering into the Put and Call Option Agreement. For the purposes of s 459J, it says that there is a defect in the statutory demand in that the statutory demand relates to two or more debts owed by Oscty to Chase, but fails, as required by sub-s 459E (2) (according to the submission), to specify the individual debts. I will deal with these grounds raised by Oscty separately and in turn.

38. Section 459H - counter claim, set-off or cross-demand The statutory demand described the indebtedness of Oscty to Chase as follows:

"Description of the debt Amount of the debt

The balance of account pursuant

to a loan by Chase AMP Bank

Limited (now the Chase Manhattan

Bank Australia Limited) to Oscty

Pty Limited by Agreement contained

in Letter of Offer dated 10th day

of May, 1990 and accepted by the

company in 22 May, 1990 the amount

of the debt calculated to 30

August, 1994. $8,340,888.73"

39. Oscty does not dispute the existence or amount of this indebtedness to Chase. Sub-s 459H (2) requires that I calculate "the substantiated amount" of the demand in accordance with the formula, "Admitted total - Offsetting total". Here, the "Admitted total" is $8,340,888.73. For the purpose of the formula, in the present case the "Offsetting total" means the amount of the offsetting claim propounded by Oscty if I am satisfied that it has such offsetting claim, and if I am not so satisfied, a nil amount.

40. Sub-sections 459H (3) and (4) provide for what is to happen if the substantiated amount is less than the statutory minimum ($2,000.00), and if it is at least as great as the statutory minimum, respectively. If the substantiated amount is less than the statutory minimum, the Court is required to set aside the demand. If it is at least as great as the statutory minimum, the Court may make an order varying the demand as specified in the order and declaring the demand to have had effect as so varied, as from the date when the demand was served on the company. These various provisions emphasise that only a claim which is capable of being quantified as an amount of money can qualify as an "offsetting claim". The language counter claim, set-off or cross-demand (even if it does not arise out of the same transaction or circumstances as a debt to which the demand relates) are of the widest import and are not limited to a claim of a kind which would have afforded a defence to an action by the person who served the statutory demand to recover the amount referred to in it.

41. The definition of the expression "offsetting claim" is found in sub-s 459H (5) as follows:

"'Offsetting claim' means a genuine claim that the

company has against the respondent by way of counter

claim, set-off or cross-demand (even if it does not

arise out of the same transaction or circumstances as a

debt to which the demand relates); ..."

42. The references in s 459H to the Court's being "satisfied" that there is a "genuine" dispute, and "satisfied" that the company has a "genuine" claim against the person who served the demand on it, have been the subject of judicial consideration: see, for example, Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] VicRp 61; (1993) 11 ACSR 362 (Vic/Hayne J) at 366-367; Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601 (Qld/Thomas J) at 605-606; Scanhill Pty Ltd v Century 21 Australasia Pty Ltd [1993] FCA 618; (1993) 12 ACSR 341 (FCA/Beazley J) ("Scanhill") at 356-357; Kalamunda Meat Wholesalers Pty Ltd v Reg Russell and Sons Pty Ltd [1994] FCA 1059; (1994) 13 ACSR 525 (FCA/Hill J) at 526-527; Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 (FCA/Lockhart J); Hamilhall Pty Ltd (in liq) v A T Phillips Pty Ltd [1994] FCA 1446; (1994) 15 ACSR 247 (FCA/Branson J); Rohalo Pharmaceutical Pty Ltd v R P Scherer SpA (1994) 15 ACSR 347 (FCA/Lindgren J) ("Rohalo"). Their meanings have been illuminated by analogies found in applications for injunctions to restrain the commencement, advertisement or prosecution winding up of proceedings pre-dating the enactment of s 459G (Scanhill), and in the opposing of a notional application by the person who served the statutory demand for summary judgment against the company for the debt the subject of the demand (Rohalo). Consistently with these cases, I ask whether Oscty has satisfied me that there is a "serious question to be tried" or an "issue deserving of a hearing" as to whether it has a claim against Chase.

43. The only basis propounded for an offsetting claim was Chase's having entered into the particular Put and Call Option Agreement. It was not submitted that it lay outside chase's power as mortgagee to enter into that agreement, but that it had breached a general law duty owed by it to Oscty in entering into the particular Put and Call Option Agreement. But the options may never be exercised. I raised this matter with counsel for Oscty and it was put that:

" ... the damages are certainly not clear at this time.

The damage will crystallise on or after 29 April. But

... there has been a breach of fiduciary duty in which

damages are still to crystallise." (transcript 98)

44. I suggested to counsel that s 459H was concerned with offsetting claims in amounts of money (which he appeared to accept) and that in order to have the statutory demand set aside in toto, as sought, Oscty would have to propound a counter claim, set-off, or cross-demand for an amount exceeding $8,340,888.73.

45. In the way in which the case was conducted, there was no evidence before me of the market value of the properties, although there was evidence that both parties had obtained "valuations" as at various dates and had had states of belief as to the value of the properties.

46. I am not satisfied on the existing evidence that Oscty has a genuine claim against Chase in an amount exceeding $8,340,888.73 or any amount. The position is akin to that dealt with by Lockhart J in Johnson v AGC (Advances) Limited, unreported 21 May 1992 in which his Honour had to deal with a claim against a mortgagee of a property which it was alleged had been sold by the mortgagee in breach of a duty of care to obtain the best possible price. His Honour said this:

"Even if the respondent owed the duties asserted by the

applicant and breached them, it is impossible to say on

the evidence before me that they are quantifiable to

any figure, even a broad and inexact one. It is also

impossible to say that any counter-claim or cross

demand he may have equals or exceeds the sum of

$13,262,658.36. If there was a fair case adduced by

the applicant in this proceeding that could enable a

finding to be made of a quantified loss of the kind

which he must establish, I would so hold ... But I

cannot make this finding. There are so many variables

that may come in to the question of quantification of

loss once liquidators and receivers are appointed to a

company, no permissible finding of the kind contended

for by the applicant could be made by the Court." (at

16-17)

47. I do not find it necessary to embark upon a discussion of the question of the correct formulation in Australia of the nature of the duty owed by a mortgagee in exercising its power in relation to the mortgaged properties. On the basis of the evidence before me I am not satisfied even on a prima facie basis and even on an assumption in favour of Oscty that Chase owed it a duty to obtain the highest price available in the market, that Chase breached that duty by entering into the Put and Call Option Agreement.

48. This brings me to Oscty's contention that the statutory demand should be set aside under s 459J of the Law because I should be satisfied that there is a defect in the demand. Oscty refers to sub-s 459E (2) of the Law which provides relevantly as follows:

"459E (2) The demand:

(a) .............................;

(b) if it relates to 2 or more debts -

must specify the total of the

amounts of the debts; and

(c) ..............................;

(d) ..............................;

(e) must be in the prescribed form (if

any); and

(f) ..............................."

49. The prescribed form is Form 509H which contains a schedule and footnote as follows:

"SCHEDULE

Description of the debt Amount of the debt

(indicate if it is a

judgment debt, giving

the name of the court and

the date of the order).

*Total Amount

50. I referred to the question of the proper construction of paras 459E (2) (a) and (b) of the Law in Chippendale Printing Co Pty Ltd v Deputy Federal Commissioner of Taxation (1995) 13 ACLC 229 at 243-244. As in that case, I do not find it necessary to choose between the two possible constructions of those paragraphs which I there discussed. There are two reasons why I do not find it necessary to do so. First, in my opinion on the evidence there is only one debt to which the statutory demand in this case relates, and that is the debt arising under the loan facility agreement as amended. Oscty did not suggest any other source of its obligation to pay the amount of the statutory demand which, as I said earlier, it did not dispute was owing. Oscty's case for saying that the statutory demand related to two debts arises from the fact that Heidtman supplied to CKandB loan statements issued by Chase for the period 1 July 1990 to 26 March 1995 which bore two different account numbers.

51. There was a business loan account number 50 101-5278 showing a "security address" of "38-46 Oxford Street Darlinghurst NSW 2010" and a separate business loan account number 50 102-7359 showing a "security address" of "34-36 Oxford Street Sydney NSW 2000". Whatever may be the explanation for this, so far as the evidence goes it is no more than an internal housekeeping arrangement within Chase's organisation.

52. The second reason why the statutory demand should not be set aside under s 459J is that I may order that it be set aside under that section only if I am satisfied that because of a defect in the demand "substantial injustice will be caused unless the demand is set aside". Oscty did not point to any such substantial injustice. It is difficult to understand how there could be any: Oscty does not dispute its indebtedness to Chase in the amount the subject of the statutory demand under the loan facility agreement referred to in the statutory demand.

53. In the result, because of my conclusion on the third issue raised by the case, it is not necessary for me to consider the first and second issues raised.

54. There will be an order that Oscty's motion brought by its notice of motion filed on 24 March 1995 be dismissed with costs. The parties are not agreed as to the consequences of that result, and the proceedings will be listed within a day or two for submissions to be made in that respect.