//
[2018] VSC 563
General information, not legal advice.
Supreme Court of Victoria
2018-09-25
Randall AsJ
Original judgment source is linked above.
CORPORATIONS - Corporations Act 2001 (Cth) s 459G - Application to set aside statutory demand - 21 day affidavit required to 'raise' or 'identify' a particular ground expressly, by necessary inference or by reasonably available inference - No genuine dispute - Offsetting claim - Calculation - Need for some evidence supporting the offsetting claim to enable the Court to determine whether or not there is a genuine offsetting claim for a given amount.
1 This is an application made under s 459G of the Corporations Act 2001 (Cth) ('the Act') to set aside a statutory demand dated 2 July 2018.
2 The debt described in the statutory demand is as follows:
Invoice number AAAUG17 dated 1 August 2017 for July 2016 to November 2016 RTO Consultancy Services provided by the creditor, more particularly described as:
Which became due and payable on 7 August 2017. $77,000.00
Total amount: $77,000.00
3 From the supporting 21 day affidavit it became apparent that the real issue in this application was whether the plaintiff had an offsetting claim pursuant to s 459H of the Act.
4 The defendant was engaged to develop QMS and other documentation ('Training Documentation') to meet the requirements of being a Registered Training Organisation ('RTO') and on the Commonwealth Register of Institutions and Courses for Overseas Students ('CRICOS'). At all material times the defendant traded under the name and style of 'Inspire Resource Management'. In July of 2016, the plaintiff offered the defendant a contract for services which included:
5 The consultancy fees were an hourly rate (minimum of 3 hours) $575 per hour + GST. Daily rate (maximum of 8 hours) $2,800 per day + GST. The consultancy fees also included other fees which I will not set out. Each of those other fees included + GST.
6 There is a note at the bottom of the consultancy fees as follows:
Please note:
The terms of all invoices are 14 days and all invoices will be charged according to the hourly rate plus GST (Goods and Services Tax). These rates are reviewed from time to time and may change. We will tell you of any changes as soon as practicable after a change occurs.
7 There is further stipulation as to the amount to be paid. It is set out:
As negotiated:
It is agreed that IRM [the Defendant] will cap its fees payable for initial registration and CRICOS registration at AUD$100,000 inclusive of required ASQA fees.
8 Under the heading 'Demonstrate Financial Viability' there are a number of obligations imposed upon the plaintiff including the following:
The pack requires you to answer a series of questions about your organisation's financial viability, including financial projections and business ratios. You will need an accountant's help to complete the pack.
9 The Agreement was set out to have been made on 25 July 2016 and executed by James Sackl on behalf of the plaintiff. At all material times, Ms Eavis was a director of the defendant.
10 On 3 November 2016, the defendant gave the plaintiff an invoice (AANov16) for the sum of $77,000.00 which represented $70,000.00 plus $7,000.00 GST. It was for the period of July 2016 to November 2016. There is a notation on the invoice as follows:
12 On the date the invoice was issued, Ms Eavis in her personal capacity, was engaged by the plaintiff as Chief Executive Officer (CEO). The position was described as:
This position must meet the requirements as set out in the CEO position description, and ensure all requirements to maintain RTO and CRICOS registration are maintained.
13 The remuneration was at the rate of $180,000.00 per annum with superannuation and other items.
14 Under the heading 'Consultation Services' the following is set out:
IRM Consultation Services invoice of $70,000.00
For the initial development of QMS and other documentation to meet the requirements of initial registration order for both RTO and CRICOS requirements.
As Agreed this payment will be deferred until the 1st August 2017 and made payable to ... As per invoice. ...
15 The employee responsibilities are too numerous to set out save as to headings which are as follows:
1. Administration and Compliance.
2. Operations and Financial Management.
3. Student Services.
4. Human Resources.
5. Local Area Network.
A number of duties were set out in addition to those headings.
16 In February 2018 Ms Eavis had not been paid wages and her superannuation entitlements had not been paid.
17 In March 2018 at a time when 30 students were enrolled, no further payment had been made.
18 On 29 May 2018 Ms Eavis required an update from Mr Sackl as to when the defendant was to receive payment of its invoice and when she could expect to receive payment of wages.
19 On 29 May 2018 at 11.55pm referring to a meeting held that day, Mr Sackl emailed Ms Eavis. Which relevantly set out:
While I appreciate your situation is financially very difficult, we need to ensure the best chance of survival of the school and that does mean an immediate reduction in costs.
While you stated you have taken a 50% reduction in salary when compared with industry averages for people in your position, as I said today, I feel a salary of $180k+ is for the moment unaffordable.
...
...we can amend your employment agreement with us to ensure you are still involved with compliance or articulations etc. But bringing your working hours down to a level that is affordable for me?
...please let me know your thoughts and we can work something out that suits us both.
20 On 30 May 2018 at 11.55:34pm James Sackl sent a further email transmission to Ms Eavis. That transmission relevantly set out:
Your employment with Ad Astra and your initial consulting invoice are exclusive to one another. [emphasis added]
Re your invoice, I require you to provide your initial service agreement to me first so we can reference the invoice you've raised to that initial agreement. I am happy to honour payment obligations relating to this initial service.
I feel that we cannot come to a compromise in the time I need to ensure the school's survival and I will be forced to take over as CEO and you will unfortunately have to continue with alternative consulting work to ensure your financial commitments are able to be maintained.
Are you available tomorrow to meet so we can go over what's needed for the handover to me?
No, unfortunately I am not prepared to change my contract, or even visit a potential change until my invoice is paid in full.
I also do not believe it would be appropriate to be able to be an effective CEO in only one day a week. As you are aware I currently work an extra six days a month for Ad Astra (unpaid) to be able to complete all requirements. I have signed legal documents as the CEO of Ad Astra Institute and Momentum English, declaring ASQA requirements are currently and will be maintained.
...
As per my previous email, once the outstanding invoice is paid, I am happy to discuss a more suitable arrangement which will not jeopardise Ad Astra's registration.
22 On 31 May 2018, after Ms Eavis' position had been terminated, she attended at the plaintiff's educational institute and removed what she contended were her personal possessions.
23 The statutory demand with respect to the outstanding invoice owed to the defendant but not with respect to wages and other entitlements owed to Ms Eavis was dated 2 July 2018 and served shortly thereafter.
24 The plaintiff does not point to any interaction whatsoever between itself and the defendant nor Ms Eavis from the end of May until service of the application to set aside the statutory demand.
25 In the affidavit sworn on 24 July 2018, Mr Sackl contended that:
The defendant, [which I assume to mean Ms Eavis]:
Subsequently removed some of the training documentation from the plaintiff's premises and has refused to return it.
26 As a result of that contention, Ms Eavis contacted various employees and accumulated some hearsay material refuting the allegations set out by Mr Sackl.
27 This matter came on for hearing on 13 September 2018. After that hearing a second affidavit was sworn by Mr Sackl on 20 September 2018 which produced a photograph taken from CCTV footage which shows Ms Eavis carrying a box from the premises.
28 That affidavit also set out a contention that the amount to be paid pursuant to the invoice was $70,000.00 and not $77,000.00. Mr Sackl contended that various hard copies were not able to be located and that the computer system did not disclose the location of work referred to in paragraphs 4(c) to (f) of the Eavis affidavit.
29 The 21 day affidavit (also known as a Graywinter affidavit) relevantly sets out:
30 The third affidavit sworn by Mr Sackl on 24 September 2018 (being the date of hearing) relevantly set out:
31 In Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (In liq),[1] the Court of Appeal summarised the principles to set aside statutory demands as follows:
The terms of s 459H of the Corporations Act and the authorities make clear that, on an application to set aside a statutory demand, the applicant is required only to establish a genuine dispute or offsetting claim. The applicant is required to evidence the assertions relevant to the alleged dispute or offsetting claim only to the extent necessary for that primary task. It is not necessary for the applicant to advance a fully evidenced claim. Therefore, the task faced by an applicant is by no means at all a difficult or demanding one.
In determining such an application, it is not necessary or appropriate for a court to engage in an in-depth examination or determination of the merits of the alleged dispute. This is because an application alleging a genuine dispute or offsetting claim is akin to one for an interlocutory injunction and requires the applicant to establish that there is a 'plausible contention requiring investigation' of the existence of either a dispute as to the debt or an offsetting claim. It is therefore not helpful to perceive that one party is more likely than the other to succeed or that the eventual state of the account between the parties is more likely to be one result than another. Further, the determination of the 'ultimate question' of the existence of the debt at a substantive hearing should not be compromised.
The court is required to determine whether the dispute or offsetting claim is 'genuine'. It has been said that the criterion of a 'genuine' dispute requires that the dispute be bona fide and truly exist in fact and that the grounds for alleging the existence of a dispute be real and not spurious, hypothetical, illusory or misconceived. It has also been observed that the dispute or offsetting claim should have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion. It must also have sufficient factual particularity to exclude the merely fanciful or futile. A rigorous curial approach is essential to the effective operation of the statutory scheme.
The court is not required to accept uncritically every statement in an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be, as it may not have sufficient prima facie plausibility to merit further investigation as to its truth. The court is also not required to accept uncritically a patently feeble legal argument or an assertion of facts unsupported by evidence, although this should not be read as suggesting that the applicant must formally or comprehensively evidence the basis of its dispute or off-setting claim. Except in such extreme cases, the court should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on by the applicant to set aside a statutory demand.
Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd involved a demand for payment of a debt alleged to be due under a contract for the supply of goods. The applicant relied on four matters, each of which had the potential to affect the respondent's entitlement to be paid the entire amount of the debt. Barrett J held that all four matters were sufficiently plausible to raise a genuine dispute. He relevantly stated:
The [applicant] will fail in [the] task [of establishing a genuine dispute] only if ... the contentions upon which it seeks to rely ... are so devoid of substance that no further investigation is warranted. Once the [applicant] shows that even one issue has a sufficient degree of cogency to be arguable, a finding of genuine dispute must follow. The court does not engage in any form of balancing exercise between the strengths of competing contentions. If it sees any factor that, on rational grounds, indicates an arguable case on the part of the [applicant], it must find that a genuine dispute exists, even where any case apparently available to be advanced against the [applicant] seems stronger.[2]
32 It was submitted that the 21 day affidavit raises a 'genuine dispute' as well as a 'genuine offsetting claim'. It was submitted that one of the natural inferences to be drawn from the allegation that documents had been removed was that they never existed in the first instance and, therefore, the plaintiff and the Court could not be satisfied that the work to be carried out by the defendant was done in the first place. Therefore, a genuine dispute arose as to the necessity to pay the invoice for $77,000.00. I reject that submission.
33 The Graywinter principle was considered by the Western Australian Court of Appeal in Pravenkav Group Pty Ltd v Diploma Construction (WA) Pty Ltd [No 3][3] the Court of Appeal said at [62] referring to Graywinter:
In that case, his Honour referred to "minimum requirements" for a supporting affidavit. His Honour said that in an application that alleges a "genuine dispute" about the existence or amount of a debt (s 459H(1)(a)) the supporting affidavit must "disclose facts showing there is a genuine dispute between the parties. A mere assertion that there is a genuine dispute is not enough. Nor is a bare claim that the debt is disputed sufficient". [citation omitted]
34 At [63] the Court of Appeal referred to Parker J in Financial Solutions as follows:
In that case, Parker J said that there was no settled and universal principle, which must be satisfied by an affidavit before it can be accepted as "supporting the application" within the meaning of s 459G(3)(a) and as satisfying the jurisdictional requirement being considered. The statutory yardstick remains that the affidavit should support the application. The precise nature of the application may well influence what this requires. [citation omitted]
35 In Dromore Fresh Produce Pty Ltd v W Paton (Fertilisers) Pty Ltd,[4] Young J held that an affidavit by the plaintiff's solicitor which simply said that the plaintiff disputed that it was indebted to the defendant, was insufficient to satisfy the statute.
36 In Process Machinery v ACN 057 260 590,[5] Barrett J said:
It is thus reasonably clear that the relevant concept of "raising" or "identifying" a particular ground involves some verbal delineation of that ground in the s 459G(3)(a) affidavit.[6]
The real point is that the application and affidavit filed and served within the 21 day period must fairly alert the claimant to the nature of the case the company will seek to make in resisting the statutory demand. The content of the application and affidavit must convey, even if it be by necessary inference, a clear delineation of the area of controversy so that it is identifiable with one or more of the grounds made available by ss 459H and 459J. ...
38 In Hansmar Investments Pty Ltd v Perpetual Trustee Company Ltd,[7] White J queried the rigidity of the test set out by Barrett J and stated at [28]:
The implication is now firmly established that the grounds for applying to set aside a statutory demand must be raised in the supporting affidavit, so that a ground which is not so raised cannot be relied upon. It is one thing to draw that implication from the requirement that an application be accompanied by a supporting affidavit. It is quite another to imply from the requirement that there be a supporting affidavit anything as to the precision with which such a ground must be expressed, other than that it be raised. Whether it is raised expressly, by necessary inference, or by a reasonably available inference, provided it is raised, in my view the requirements of s 459G are satisfied.
39 Barrett J came around to the same view after considering his judgment in Elm, the judgment of Austin J in POS Media Online Ltd v B Family Pty Ltd[8] and the judgment of White J in Hansmar:
[His Honour] concluded that his observation in Elm to the effect that the ground of challenge to a statutory demand must be raised expressly in, or appear by necessary inference from, the supporting affidavit, was 'too strict' and that the correct approach was to treat a ground as having been raised within the 21 day period 'if the ground is evident from the supporting affidavit, even if only because it can be discerned from some annexed document the content of which "reveals" it.'[9]
40 Albeit, that there is a relaxation of the rigor of Graywinter over the years, there must be an articulation in some manner whether express, by necessary inference or by reasonably available inference. In this proceeding there has been no 'verbal delineation of the ground' or any matter filed within the 21 day period that 'fairly alerts the claimant to the nature of the case the company will seek to make in resisting the statutory demand'. The submission that the taking of material necessarily or by inference supports a contention that it was never done in the first place is a submission which involves verbal gymnastics which is just not open. The only genuine dispute raised in the 21 day affidavit is whether or not the $77,000.00 invoice was entitled to include the GST amount of $7,000.
41 Although it is slightly out of order, I will interleave that issue now. The plaintiff contends that the sum claimed is $70,000 based upon the reference to that amount in paragraph 2.4 of Ms Eavis' employment agreement. That ignores the extensive provisions requiring payment of GST referred to in the Consultancy Agreement by which the defendant was engaged and signed off by Mr Sackl on 25 July 2016. It also ignores the substance of the provision which refers to the invoice which includes GST: 'as per invoice'. The invoice had been produced on 3 November 2016 for the agreement to retain Ms Eavis' services. Mr Sackl's construction of the agreement, and it is only a construction, is not maintainable. I reject the contention that there is 'a genuine dispute' which has been raised.
42 The defendant submitted that an offsetting claim is just not available by reason of lack of mutuality. It was put on two bases. Firstly, that it is an allegation against Ms Eavis personally that she removed the documents and not the defendant. Secondly, it was put on the basis that there is a conflation of what if any amount is to be offset against the defendant's claim as compared to the claim which is not prosecuted in the statutory demand for wages in the capacity as CEO. I reject the first submission. Albeit the allegation is that Ms Eavis removed documents, the absence of tying that into the defendant is not fatal in the circumstances. Ms Eavis was at all material times a director of the defendant and the defendant, being a legal person needed to act through a natural person to undertake carrying the documents. It is genuinely arguable that carrying documents out of premises by its director can be sheeted home to the defendant.
43 I reiterate that there has been a conflation of the tasks undertaken by the corporate defendant and Ms Eavis in her capacity as CEO. Further, the work undertaken by the defendant was not queried in November of 2016. It was not queried in May of 2018. The only inference open on the material produced by the plaintiff and the defendant is that the survival of the school was in jeopardy unless there was an immediate reduction in costs. In other words, the plaintiff could not afford to pay.[10] Although the position taken by the plaintiff appears to have all the hallmarks of recent invention responding to the pressure of the statutory demand, I accept that there is photographic evidence of document removal. Perhaps the only real dispute is whether or not they were personal documents. However, I refer to and adopt Barrett AJA's words in Lygon 158 Pty Ltd v Huber[11] that a contention:
... was so devoid of plausibility that no further investigation was required. [Emphasis added].
If this were the only argument in relation to the offsetting claim, the identification of the material removed might require further investigation.
...it is, in any event, unnecessary for the initial supporting affidavit itself to contain all the material upon which the quantum of the offsetting claim can be determined.[14]
In relation to the content of any evidence concerning the quantification of an offsetting claim, precise quantification is unnecessary.[15] As Pullin JA expressed the point in Diploma Construction, the evidence need only be sufficient for the court to make "an estimate of the amount of an offsetting claim" in monetary terms.[16]
46 In Pravenkav Group Pty Ltd v Diploma Constructions (WA) Pty Ltd [No 3] one of the arguments was as to the sufficiency of the evidence of the offsetting claim.[17] Ultimately, the Court of Appeal relied upon the site manager's evidence who had asked the contract administrator to locate emails and invoices that demonstrated the rectification costs. The invoices with respect to the work undertaken within six identified categories were produced.
Counsel for PG submitted that Mr Farrelly's evidence was hearsay, and that Mr Farrelly had not given any evidence that the particular invoices were associated with rectification work undertaken. On this appeal, the parties proceeded on the basis, supported by authority, that the proceedings below were interlocutory. That approach as followed at first instance in this jurisdiction. Hearsay evidence is admissible where an affidavit "is made for the purposes of interlocutory proceedings". For the reasons above, there was sufficient evidence that supported the conclusion of the learned Master that the offsetting claim was genuine and was made in good faith.[18]
[footnotes omitted]
48 During the course of submissions I let it be known to the plaintiff that:
49 Notwithstanding these observations the plaintiff did not seek to adjourn the matter to further augment the material. Accordingly, I will do the best I can on the material before me.
50 In Karimbla Construction Services Pty Ltd v Alliance Group Building Services Pty Ltd, Barrett J said:
Despite this clear need, according to the terms of the legislation, to quantify an offsetting claim in money terms, it is not necessary that the party seeking to have the statutory demand set aside should particularise the amount of the claim to the last dollar and cent. Particularly where the claim is of an unliquidated kind, there may be various ways of approaching the issue of assessment of damages and there may be elements of the assessment that are, of necessity, based on broad estimate. It is sufficient that there be, on the evidence, a plausible and coherent basis for asserting a claim to a sum which, despite elements of uncertainty as to details of calculation, can be seen to be, in any event, greater than the amount of the debt the subject of the statutory demand. Of course, the narrower the margin between the alleged debt and the plaintiff's estimate or initial quantification, the greater will be the need for particularity in asserting the "amount" of the offsetting claim.[19]
51 In Federico's Restaurant Pty Ltd v Warwick Entertainment Centre Pty Ltd[20] Lehane J was faced with the difficulty in assessing an offsetting claim. Lehane J said:
... [T]hat I must be satisfied for the purposes of the calculation required by s 459H(2) of the existence of an offsetting claim. The difficulty, however, is that the calculation requires the attribution to the offsetting claim of an amount. The particular difficulty is that this claim in any ordinary sense of the word does not have an amount. Its amount or value is on the material before me indeterminate. The provisions of the Corporations Law do not give me any clear guidance as to what in these circumstances I should do, particularly as to what, in which the word is used in the provisions, the amount in this particular offsetting claim is. I do not believe, however, that that difficulty means that I must take the amount of the claim as nil. That conclusion, seems to me, would be almost a perversion of what the statutory scheme is intended to do.
...
I have of course as yet said nothing about value to be attributed to the goods themselves. This is perhaps one of the most difficult aspects of this case, to the point almost of impossibility. Unfortunately, I do not think that the statute allows me simply to throw up my hands and say, as I might be tempted to, it is impossible.[21]
52 In Sewmail (Australia) Pty Ltd v Booby Traps Pty Ltd[22] a company director's unsubstantiated assertions of an offsetting claim without evidence supporting the claim were determined to not constitute a genuine offsetting claim. Burley J said:
While I am satisfied, on the basis of the affidavit evidence filed by the plaintiff, that a genuine offsetting claim exists, I am not satisfied that the claim amounts to $50,000 or any other amount. To support the genuineness of an offsetting claim amounting to $50,000, the plaintiff relies upon the unsubstantiated assertion of Mr Taylor, a director of the plaintiff, that the offsetting claim amounts to $50,000. That in my view is not sufficient. There needs to be evidence supporting quantum of the offsetting claim so that the Court may determine whether or not there is a genuine offsetting claim of a given amount. It is not necessary that the evidence be such as might be advanced at a trial, but it is, in my view, necessary to adduce some evidence in that regard ... In the absence of such evidence it is impossible for the Court to determine whether or not the statutory demand must be altered or set aside in accordance with the provisions of s 459H of the Law. For these reasons the ground relied upon by the plaintiff in relation to the offsetting claim must fail.[23]
53 The statement in the first affidavit of Mr Sackl that:
...it has been necessary for the plaintiff to incur the costs of recreating the training documentation, which is estimated to exceed 1000 hours at a cost of $55 per hour. Until that work is undertaken it is not possible to know whether the cost of rectification exceeds the amount being demanded by the defendant.
Is nothing more than 'unsubstantiated assertion of ... a director of the plaintiff, that the offsetting claim amounts to ...'.[24]
54 The reference to the nominated accountant certificate dated 6 September 2018 is meaningless given the reference to that requirement in the original Consultancy Agreement in 2016. In any event it demonstrates that the plaintiff meets the requirements referred to therein.
55 The reference to paragraph 15 in the third affidavit is as follows:
In my first affidavit at paragraph 6, I referred to work required to be undertaken. To date those costs incurred have been approximately $45,000 in payments to employed staff, including Mr Gostelow.
does nothing to transcend the original director's contention. As Burly J said:
There needs to be evidence supporting quantum of the offsetting claim so that the Court may determine whether or not there is a genuine offsetting claim of a given amount.[25]
56 I would have expected timesheets or at least a summary of those timesheets so that I could embark upon an exercise of determining to what extent if any employees were paid extra or whether they devoted normal hours to locating or reconstructing documents. There is just nothing before me.
57 In any event, the requirement for such material is highlighted by the apparent reliance upon the Riven Consulting invoice and accompanying email to corroborate:
Further work to be undertaken to replace part of the work that the defendant was contracted to provide.[26]
58 From the outset I reiterate that I have rejected the concept that the 21 day affidavit has raised a 'genuine dispute' or that the plaintiff is permitted otherwise to raise a genuine dispute. The sole purpose of examining the Riven Consulting material is to determine whether it sets out material in support of an offsetting claim. Albeit that it is hearsay, I follow Pravenkav in allowing its admission. The invoice for $3,000 needs to be considered in the context of the accompanying email. That email transmission dated 24 September 2018 sets out relevantly as follows:
Subject FWD Strength and Weakness Analysis and next step
Hi Alex and James
Step one is now completed, and included:
Strength and weakness analysis
Ad Astra has strong policies that enabled the RTO to be registered. The policies clearly articulate procedures and systems to be in place for ongoing compliance ...
...
Training and assessment is being performed in suitable classrooms and my understanding is that the current kitchen is compliant. James, CEO of Ad Astra, states that the RTO is in the process of building their own kitchen in Docklands. Growth in student numbers is steady and current intake is approximately 140 students for the year; a great achievement in such a short time.
After an informal chat with trainers about the academic side and its systems, it appears at first glance that a new system is being trialled and implemented for theory classes. The aim of this new system is to achieve a more structured and defined approach for record keeping. [emphasis added].
It appears that Ad Astra is yet to implement the majority of the articulated procedures and systems mentioned above. Next step would be to evaluate exactly what has been implemented and how it has been systemised. ...
Step 2 includes mapping out a strategy and formulating an action plan with agreed outcomes in relation to procedures and systems...
Step 3 implements the action plan and creates the necessary continuous improvement system with appropriate documentation...
Eg the continuous improvement system will state that "stakeholder and client feedback" will be collected in November and a report will be written in December. As the continuous improvement system states November then this cannot be done until then.
There is also the academic side that needs to be simultaneously implemented.
Solutions on how to best manage current student assessment files needs to be agreed and acted upon sooner rather than later. A system for current and future practical observations needs to be developed and implemented urgently.
Based on the timeline given by Alex today, I suggest a combined step 2 and 3 to speed things up.
Ad Astra will have to determine how much of step 2 and 3 will be done by current staff and how much will be done by external help.
[emphasis added]
The academic side need to be added to this workload as well.
Perhaps Ad Astra needs to delegate responsibility and workload to current staff, under the supervision of external help. This will be a cheaper option and staff will be empowered and engaged to take ownership of Ad Astra.
[emphasis added]
If current staff was engaged, as mentioned above, I estimate 10 working days (approximately 80 hours) of external help, spanning over 6-8 weeks.
...
I have attached my invoice for services rendered for step 1.
59 Notwithstanding the gloss put on this material by the plaintiff, that the Riven Consultancy material demonstrate that remedial work was required and that 80 hours at $300 per hour was to be expended, the material cannot be sensibly construed to do anything of the sort. The only credible contention that can be distilled from that material is:
60 Given the context of the Riven Consulting email transmission, the invoice produced for $3,000, not only does not state that it related to reconstruction of documents but was clearly part of the step 1 of the analysis undertaken by them.
61 More importantly, steps 2 and 3 which were estimated to require approximately 80 hours of 'external help' were predicated upon current staff being engaged. It is clear that the processes had not been commenced. Given that observation the reference to the costs incurred being approximately $45,000 in payments to employed staff including Mr Gostelow are not only not supported by any evidence as referred to in paragraph [58] hereof but I must also doubt the veracity of the statement. If Riven Consulting has put forward a proposal for the work it is being engaged to undertake which is yet to be commenced, what is referred to in paragraph 15 of the third affidavit?
62 I cannot determine the quantum of any offsetting claim. There is no material which might assist me. It is impossible on the current material before the Court to determine if the statutory demand must be altered or set aside in accordance with the provisions of s 459H of the Act.
[1] [2015] VSCA 330 ('Malec').
[2] Ibid [47]-[51] (citations omitted).
[9] Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (In Liq) [2015] VSCA 330 [63].
[10] Affidavit of Sharry Maree Eavis sworn 10 August 2018, exhibit 'SME-4'.
[12] See paragraphs [32] to [41] hereof.
[13] Pravenkav Group Pty Ltd v Diploma Constructions (WA) Pty Ltd [No 3] [2014] WASCA 132.
[15] Kerslake Superannuation Pty Ltd v C & L Building Pty Ltd [2010] NSWSC 424 [10] (Barrett J); Re Infratel Networks Pty Ltd [2012] NSWSC 943.
[16] Diploma Constructions (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91 [78] (Pullin JA; Newnes & Murphy JJA agreeing); No 96 Factory Bargains Pty Ltd v Kershel Pty Ltd [2003] NSWSC 146 [27] (Barrett J).
[19] [2003] NSWSC 617, [28].
[26] Third affidavit of James Sackl sworn 24 September 2018, [16].
Plaintiff
TAYDEN INVESTMENTS PTY LTD