Plaintiff v Defendant

2 The Demand was issued in respect of two invoices issued by Warners to C Tina on 17 April 2018, totalling $166,332.10. The unpaid invoices are said to be owing for work and labour done and materials supplied.

3 On 19 October 2018, C Tina made application by originating process to set aside the Demand. The application was made within the time prescribed by s 459G(2).

4 C Tina relies on affidavits of Steven Vouzas sworn 19 October 2018[2] ('First Vouzas Affidavit') and 12 December 2018 ('Second Vouzas Affidavit'). Warners relies on an affidavit of Grant Warner ('Mr Warner') sworn 22 November 2018 and of Jennifer Dawn BarhamFloreani ('Ms Barham-Floreani'), sworn the same date.

5 The application is based on the ground that C Tina has a genuine dispute in relation to the debt. More specifically, C Tina says that it never contracted with Warners and that the work for which Warners now seeks payment was pursuant to a contract between Warners and 104 Holdings Pty Ltd (ACN 169 723 599) ('104 Holdings').

6 In the First Vouzas Affidavit, Mr Vouzas deposes that 104 Holdings had two shareholders with equal holdings, C Tina and Ms BarhamFloreani. Mr Vouzas' mother, Christina Vouzas, and Ms BarhamFloreani were the directors of 104 Holdings, which was the trustee of the 104 Canterbury Unit Trust. 104 Holdings was the registered proprietor of the property at 104 Canterbury Road, Middle Park from 6 November 2014 ('the Property').

7 In paragraph 50 of Mr Warner's affidavit sworn 22 November 2018 he indicates that the date written on the Demand is a typographical error. C Tina did not raise the issue of the date of the Demand in its written or oral submissions.

8 Mr Vouzas deposes that 104 Holdings was incorporated for the purpose of purchasing and developing the Property ('the Development'). It was his responsibility to manage the Development and to engage various tradespeople on behalf of 104 Holdings to work on the Development. C Tina was to fund the Development and lent monies to 104 Holdings for which it took security over the Property. As has been said, C Tina is a fifty per cent shareholder in 104 Holdings.

9 Mr Vouzas states that in or around early 2015, in a telephone conversation, he told the director of Warners, Grant Warner, that he was project managing the Development and his family had a financial involvement, that the project was a partnership with a local chiropractor and his wife and that they required a quotation for steel works.

10 Mr Vouzas states that shortly afterwards the steel requested by Mr Vouzas was supplied by Warners and Warners made out invoices to Mr Vouzas personally. The first and second invoices, both dated 31 May 2015, are generated on Warners headers and are addressed to Steven Vouzas with a handwritten reference to 104 Canterbury Road together with a copy statement of transactions from a NAB business cheque account. The third invoice, invoice number 00023036 is also on a Warners header and is titled 'Bill To: Steve Vouzas' and 'Ship To: Steven Vouzas' and is for the sum of $17,809 incl GST with a description of '2nd stage site - Set out site work, supply 310 ub's, 250 pfc's for flooring, crane truck & bubble 250 PFC'. Mr Vouzas states that on 'a couple (sic) occasions' when he met with Mr Warner he asked him to re-address the invoices to 104 Holdings.

11 Mr Vouzas deposes that Grant Warner continued to supply steel and attend to works up until late November 2016 when the Council issued a Stop Works Notice.

12 Mr Vouzas states that during the course of 2017 Mr Warner called him 'a couple (sic) times' requesting payment, and Mr Vouzas advised Mr Warner that as the Development had stalled, 104 Holdings had no money to pay Warners until issues were resolved between the project partners.

13 On Thursday, 28 December 2017, Mr Vouzas sent a text message to Mr Warner in which he stated, relevantly[3]:

If you have some time over the next few weeks can we do lunch?

Let me know?

In the interim, can you calculate;

- what 104 owes you?

- how much more to finish the project?

Mr Vouzas asserts that the reference to '104' in the email is a reference to 104 Holdings.

14 On 31 January 2018, Mr Vouzas sent an email to Mr Warner, entitled '104 Canterbury Road, Middle Park', in which he suggested to Mr Warner that it may be easier for him to requote the whole job from scratch and then deduct what had been paid and invoiced to date. Mr Vouzas says that shortly after sending that email he and Mr Warner met at the Property and then had lunch at the Middle Park Hotel. Mr Vouzas states that during that lunch he again told Mr Warner he was to invoice 104 Holdings.

15 On 4 April 2018, Mr Vouzas sent an email to Mr Warner with the subject line 'Warners Electroplating -104 Canterbury Rd Middle Par (sic)' which stated:

See attached for the details of the invoice and payments made to date.

Could you please confirm and send a letter on your letterhead confirming the following:

1. The attached invoices relate to works undertaken at 104 Canterbury Road, Middle Park.
2. The Payments have been made.
3. The balance outstanding is correct.
4. Works not invoiced yet ($_____) If you have finished this part

No 3 and 4 not critical, but would be great to have a letter advising the invoices raised for 104 total $ and the payments made total _____.

Let me know if you require anything further?

16 Mr Vouzas again states the reference to '104' is shorthand for 104 Holdings.

17 On 17 April 2018, Mr Vouzas received an email from Mr Warner containing invoices addressed to C Tina, not 104 Holdings. On 6 June 2018, Mr Vouzas replied to that email, stating 'the invoices need to be made out to 104 Holdings Pty Ltd, 104 Canterbury Rd, Middle Park VIC 3206'.[4]

18 On 4 September 2018, Mr Vouzas emailed Mr Warner again requesting he make the invoices out to 104 Holdings.

19 Mr Vouzas asserts that it is apparent 'from the description of the invoices that the works were done at and for the benefit of 104 Holdings and the property'. He states that at no time did he tell Mr Warner orally or in writing that he was to invoice C Tina for work done by Warners at the Property or say to him that C Tina was responsible for paying the invoices. He concludes by stating that he is informed by Christina Vouzas that she did not speak to Mr Warner in relation to the work done at the Property or authorise him to invoice C Tina for the work done at the Property.

Warners' evidence in opposition to the application

20 The affidavits filed by Warners in opposition to the application were the subject of detailed objections which are set out in C Tina lawyers' letter of 4 December 2018. The objections in respect of Mr Warner's affidavit contend that numerous paragraphs are objectionable by reason of them being vague, not probative of a fact in issue, irrelevant, seek to state opinion or are in the nature of a submission. The objections in respect of the affidavit of Ms Barham-Floreani contend that much of her affidavit is irrelevant, too vague to be probative and contains assertions which are not given factual foundation.

21 While Mr Muller, counsel for C Tina, did not formally address such objections at the hearing of this matter, a great number of the objections described in the narrative contained within the spreadsheet forming part of the letter of 4 December 2018 have force. This is particularly so in the case of Ms BarhamFloreani's affidavit, which, for the most part, contains background to the Development and there is little of direct relevance to the matter requiring my consideration in this application.

22 In the summary of the two affidavits which follows, I have put to the side the evidence which I regard to be objectionable and inadmissible and given what weight is appropriate to what remains.

23 In his affidavit, Mr Warner states that he is the sole director of Warners. Warners provides and installs structural steel framing for commercial and residential buildings, including new constructions and properties undergoing renovation.

24 He states that in early 2015, Mr Vouzas contacted him and told him that he and his mother, Christina Vouzas, had purchased the property, which they were going to renovate. The renovation included multistorey extensions at the rear of the Property. Mr Vouzas advised him that Simon Floreani, who operated a chiropractic business in Middle Park, would be a tenant, together with some local dentists. Mr Warner states that he did not know Simon Floreani at the time. He states that Mr Vouzas went to some lengths to convince him that there were financial resources available through his mother's company, C Tina, and used words to the effect that, 'my mother's company C Tina has plenty of money and would be able to meet all the costs of the steel works'. Mr Warner states he was not aware of any other companies which were connected to Mr Vouzas or his mother.

25 Mr Warner states that he placed a great deal of reliance on Mr Vouzas' representations that Warners would be paid for the steel works that it would be undertaking. This was particularly significant as it is necessary for Warners to outlay the large cost of the steel prior to its fabrication for the Development.

26 Mr Warner states that Mr Vouzas provided him with the architectural plans for the Development. A structural engineer provided all the necessary engineering computations for the fabrication of the steel works. Mr Warner states that in the course of discussions, Mr Vouzas always referred to the development as either '104' or '104 Canterbury Road' and he was not aware that the owner of the Property was in fact 104 Holdings in its capacity as trustee for the 104 Canterby Unit Trust . He states that he was first advised of the existence of 104 Holdings in an email from Mr Vouzas on 6 June 2018, but was not provided with any specific details.

27 Mr Warner states that he has not met Ms Barham-Floreani and was not aware that she was also a director of 104 Holdings. He was not aware of her involvement in and her ownership of the fifty per cent underlying interest in the Property. He states that he has not yet met Christina Vouzas although he 'may have briefly met her in 2012 whilst visiting her home at 372 Danks Street Middle Park', although he cannot recall doing so.

28 Mr Warner states that he has not discussed with the directors of 104 Holdings any contractual arrangement with Warners and there are no written agreements between Warners and 104 Holdings. Warners has not received any payment from 104 Holdings for any reason, including the payment of invoices, and there has been no written communication between the two companies in relation to the steel works.

29 Mr Warner states that after reviewing the plans in early 2015 for the Development and having carried out some preliminary costings, he contacted Mr Vouzas and advised him of his estimated cost to complete the works in accordance with the plans. Although there was no formal contract for the works, he asserts that it was agreed that Warners would progressively render invoices as the various stages were reached. There was no mention of 104 Holdings during this period.

30 He states that because of his omission to advise his accounts section that the initial invoices should be made out to C Tina, the invoices were made out to Mr Vouzas. Mr Warner states that Warners is 'not a particularly sophisticated small business and we work on the basis of, we quote the work we do the work and we expect to be paid for the work. We don't play games.'

31 Mr Warner states that because the initial invoices directed to Mr Vouzas were subsequently paid, he did not send an amended invoice in the name of C Tina. He states that these invoices were apparently paid by TVG Shop Pty Ltd, a company associated with Christina Vouzas, although he was not aware of TVG Shop Pty Ltd at the time.

32 Mr Warner states that Warners continued to undertake further works, including the framing up and installation of the lift shaft which was a very complex and difficult installation by reason of the site constraints. This was a large component of the steel works. Mr Warner elected to wait until he had completed all the works to ensure that he had accounted for all costs, some of which were unknown to him until the job was completed before he rendered an invoice.

33 Mr Warner states that in or about January 2017, Mr Vouzas advised him that the local Council had put a stop works notice on the Development and that this was of great concern to him. Mr Vouzas agreed to meet with him to reassure him that it was only a temporary issue and that the Development would be continuing and that he should have no concerns. Mr Warner states that he needed to gain access to the site to be able to calculate the costs of his final invoice, and, after several months, he was finally able to do so when Mr Vouzas opened the site up for him to inspect. Mr Warner states that as his concerns were increasing at this stage as to the likelihood of being paid and the job continuing, he took a closer interest in correctly pricing the works done to date and the addressee of the invoice. He states that he therefore ensured that the final invoices were addressed to C Tina as that was the company Mr Vouzas initially represented to him would be paying for the works.

34 In April 2018, Warners issued the two final invoices totalling $166,332.10 to C Tina for the balance of labour and materials outstanding on the 104 Canterbury site. He states that despite requests for the invoices to be paid, C Tina has not made any payments.

35 Mr Warner states that there has been no communication from 104 Holdings or the directors of 104 Holdings acknowledging the debt or agreeing to pay the debt. He states that he has become aware that Mr Vouzas has been prosecuted in the Melbourne Magistrates' Court on 29 January 2019 in relation to the development with the basis of the charge being to 'carry out work without a building permit'. He has also subsequently become aware that Mr Vouzas was an undischarged bankrupt during the period of time in which he was engaging Warners. The bankruptcy was current during the period 14 February 2014 to 1 March 2017.

36 On 17 September 2018, Westpac Bank appointed a receiver and manager to 104 Holdings. Warners has been requested by the receivers to remove any remaining equipment from the Property as it will be preparing the Property for sale.

37 In response to Mr Vouzas' assertion that he requested Mr Warner to readdress the initial three invoices to 104 Holdings, Mr Warner states that he was not aware of the existence of 104 Holdings at that time. If he had been, he states he would have been alerted to make some enquiry as to who 104 Holdings was and who was behind it. There were no written or verbal communications between Mr Vouzas and himself, or 104 Holdings and himself to this effect at the time when the initial three invoices were issued in 2015.

38 Mr Warner denies that any reference to 104 or 104 Canterbury Road was in fact a reference to 104 Holdings and stated that he was only made aware of the existence of 104 Holdings in a text message from Mr Vouzas on 6 June 2018.[5]

39 Mr Warner states that he has been able to gain access to a number of invoices provided by other subcontractors who worked at 104 Canterbury. In particular, he has sourced invoices from Grace Engineering and Know How Carpentry. In the case of Know How Carpentry, he states that there are approximately 90 invoices covering the period from April 2015 to July 2016, and none of the invoices are made out to 104 Holdings. The invoices are made out to either Steven Vouzas, Finer Advisory, or Finer Advisory Developments Pty Ltd. In the case of Grace Engineering, the invoices are made out to Mr Vouzas. I observe that none of the invoices were made out to C Tina.

40 As to Mr Vouzas' assertion that he told Mr Warner at a lunch at the Middle Park Hotel that he was to invoice 104 Holdings, Mr Warner denies that this conversation took place.

41 In her affidavit of 20 November 2018, Ms BarhamFloreani states that she is a joint director of 104 Holdings and that her codirector is Christina Vouzas. She states that the Development was financed by a mortgage provided by the Bank of Queensland in November 2014 for approximately $2.6 million. It was proposed that the building be renovated to accommodate the chiropractic clinic conducted by Simon Floreani and herself at 282 Richardson Street, Middle Park. The relocation to the Property was to occur after the completion of the renovations. The practice, through a company named Vitality Health Pty Ltd, was to negotiate a long term lease for the premises. The 104 Canterbury Trust is held as to fifty per cent by Christina Vouzas and fifty per cent by Ms BarhamFloreani as trustee for the Floreani Property Trust.

42 Mr Vouzas represented to her that he was an experienced developer and would be able to manage all aspects of the planning and renovations, including the necessary permits, the construction and dealing with subcontractors. He told her that he was an undischarged bankrupt at the time and as a consequence, everything in relation to the works he was undertaking, which included the payment of accounts and engaging contractors, would be undertaken under his mother's company, C Tina.

43 Ms Barham-Floreani states that she was advised by Mr Vouzas that the likely cost of renovating the Property was in the vicinity of $1.5 million which was subsequently increased to $2 million after factoring in two additional apartments. She states that Mr Vouzas advised her that any funding C Tina would provide for the renovations works would be subsequently reimbursed to C Tina.

44 Because Ms Barham-Floreani was engaged in her chiropractic clinic and travelling for her work giving lectures, she states she was highly reliant on Mr Vouzas to attend all matters in relation to the Development. She and her husband had known Christina Vouzas for approximately 20 years and Christina Vouzas had a 50 per cent percent interest in the Development through her 50 per cent interest in the 104 Canterbury Unit trust. She stated that Mr Vouzas advised that C Tina would be undertaking the Development as it had provided their side of the funding up to that point. Mr Vouzas had said words to the effect that 'it was necessary to utilise the C Tina building company to protect his mother and myself'.

45 Mr Vouzas did not present any building contracts however he assured her that he would be able to engage the contractors directly (which she believed to be through C Tina) and in doing so would manage the Development on an efficient cost basis and deliver the Development completed on a timely basis.

46 In about April 2016, Mr Vouzas presented her with a loan agreement to be executed with a purported level of unreimbursed costs by C Tina in relation to the Development. The loan agreement was for advances for the Development with an upper limit of $2.5 million together with a guarantee to be provided by Ms Barham-Floreani. There was also a provision for C Tina to lodge a caveat on her home at Mount Macedon.

47 She states that Mr Vouzas controlled the bank account and all administrative processes of 104 Holdings Pty Ltd. In August 2016, the Bank of Queensland mortgage was refinanced by Westpac following negotiations conducted by Mr Vouzas. Part of that refinance involved a payment to C Tina for $1.4 million. The total Westpac refinance facility was for $4.3 million, of which approximately $4 million was drawn down upon the facility after approximately $2.6 million was paid out to the Bank of Queensland and payment of the $1.4 million to C Tina.

48 Ms Barham-Floreani states that she has been the subject of demands from C Tina for a debt of approximately $2.3 million in or about July 2017 and she is engaged in litigation concerning this with C Tina in this Court. She details various monies advanced or reimbursed to C Tina in relation to the Development which I do not consider to be of present relevance in this proceeding.

49 Ms Barham-Floreani states that Mr Vouzas does not hold, nor did he ever hold, any directorship in 104 Holdings. He is not a registered builder and he did not have authority, written or implied, to incur any debts on behalf of 104 Holdings. She states that she has not met Mr Warner and asserts that 104 Holdings did not enter into any contract with Warners. She confirms Mr Warners evidence that there has been no written communication between Warners and 104 Holdings in relation to any works undertaken at the Property. She states that there were no meetings, discussions, emails, board minutes or correspondence of any type of which is aware that indicates in any way a contractual relationship between 104 Holdings and Warners.

50 Finer Advisory Development Pty Ltd was a company of which Mr Vouzas' father, Evangelos, was director. He passed away in October 2014 and Ms Barham-Floreani asserts that Mr Vouzas continued to operate that company including transacting its bank account as an undischarged bankrupt and without the company having a registered director before its deregistration on 20 June 2017.

51 As I have already observed, much of Mrs Barham-Floreani's affidavit deposes to matters which are of, if only at best, peripheral relevance to the question for consideration in this case, i.e. is there a genuine dispute in respect of the identity of the contracting party who engaged Warners in the Development. Ms Barham-Floreani had no involvement at all with the engagement of Warners and has never met Mr Warner. A great deal of the affidavit material is concerned with the interaction between the joint venture partners to the project and the difficulties of obtaining finance.

52 In the Second Vouzas Affidavit, Mr Vouzas takes issue with many of the matters raised in Ms Barham-Floreani' s and Mr Warner's affidavits. Much of the affidavit is given over to matters which again have no direct relevance to resolution of the issue required to be considered by me. Again, a great deal of it is concerned with the internal dynamics between the partners to the Development and the difficulties relating to finance. Much of the remainder of the affidavit consist of assertive denials unsupported by factual foundation of matters which were themselves the subject of unsupported assertion by Mr Warner. Mr Vouzas asserts that he had been given express authority to incur debts on behalf of 104 Holdings and although it is not clear it appears that this was given by Simon Floreani.[6]

53 As regarding the matters raised in Mr Warner's affidavit, he states that when the initial invoices were directed to him personally that Mr Warner told him that he would reissue the invoices to any company that he wanted. Mr Vouzas states he then provided Mr Warner with the details for 104 Holdings and states that he never told Mr Warner about C Tina and he does not know from where he got information about it.

54 It is important to be mindful of the standard which an applicant is required to achieve in applications of this type in order to establish the existence of a genuine dispute.

55 In the decision of the Court of Appeal in this State of Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq),[7] the principles were succinctly summarised as follows (citations omitted):

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.

56 In Citation Resources Ltd v IBT Holdings Pty Ltd,[8] McKerracher J summarised the principles involved in considering whether there was a genuine dispute as follows:

(a) For there to be a genuine dispute, there must be a 'plausible contention requiring investigation'. It raises the same sort of considerations as the 'serious question to be tried' criterion applicable to interlocutory injunctions.

(b) The company will fail in that task only if it is found upon the hearing of its s 459G application that the contentions upon which it seeks to rely in mounting its challenge are so devoid of substance that no further investigation is warranted. Once the company shows that even one issue has a sufficient degree of cogency to be arguable, a finding of genuine dispute must follow.

(c) The Court is not called on to determine the merits of, or to resolve, the dispute.

(d) The threshold is not high or demanding; however the claim must have some merit and be genuine. That requirement has been described variously as the claim must be 'real and not spurious', the claim must have 'a real chance of success', there must be 'a serious question to be tried'.

(e) The Court does not engage in any form of balancing exercise between the strengths of competing contentions.

(f) The essential task is relatively simple - to identify the genuine level of a claim (not the likely result of it).

(g) A mere assertion of an oral agreement will not necessarily suffice.

57 In Spacorp Australia Pty Ltd v Myer Stores Ltd[9] Brooking and Charles JJA cautioned:

The only question for us is whether the judge erred in determining that there was no genuine dispute. One can of course differ from the judge without deciding that the debt did not exist. A great range of states of mind on what we might call the ultimate question - the existence of the debt - may accompany the view that there is a genuine dispute, ranging from a clear conviction that the debt does not exist to the opinion that the genuine dispute hurdle has only just been cleared.

We think, if we may say so, that, except in a case in which it is as plain as a pikestaff that there is no debt (where bluntness may be in the interests of both sides), judges should, in general at all events, in dealing, whether at first instance or on appeal, with the question of genuine dispute, be at pains to perform the admittedly delicate task of disposing of that question without expressing a view on what we have called the ultimate question. For otherwise, on an application which resembles if it is not in law an interlocutory one, things may be said which embarrass the judge before whom the ultimate question comes.

58 In this matter, despite the relatively significant sums of money involved, there are very minimal contemporaneously generated written communications and no formal contractual documentation to support the respective positions put by C Tina and Warners. Such documentation is often very significant in resolution of applications of this type. There is no dispute that Warners performed its obligations for which it was contracted but the evidence in regard to the identity of the party with whom it contracted is nebulous. On the one hand, Mr Vouzas asserts that he was doing so as the disclosed principal of 104 Holdings while Mr Warner, relying on an alleged oral assertion as to C Tina's purported financial resources contends that Warners was contracting with C Tina. The situation is given colour by the fact that 104 Holdings had a receiver appointed to it on 17 September 2018 and although there is no specific evidence in this regard, it is probable that it would not have sufficient assets to pay the debts the subject of the demand.

59 As I have said, the value of the work performed is substantial and it is somewhat remarkable that it was not the subject of formal documentation which included identification of the party with whom Warners was contracting. Mr Warner candidly concedes that Warners is not a sophisticated commercial operation. It provides a quotation, performs work and expects to be paid for it. It seems that Warners may have not paid close attention to the identity of the party with whom it was contracting.

60 In addition, Ms Barham-Floreani had no dealings at all with Warners and the other director of 104 Holdings, Christina Vouzas, has not sworn an affidavit in the proceeding. Neither of them have met Mr Warner or communicated with him. Mr Vouzas alleges it seems that Simon Floreani gave him express authority to engage Warners but Mr Floreani has not gone into evidence in the proceeding.[10]

61 As the passage of Spacorp extracted above states, and I paraphrase it for the present context, it is not appropriate for the Court to express an outcome on the ultimate question of the identity of the contracting party. One must remain focussed on the task being undertaken in this proceeding and the assessment of whether there is a genuine dispute.

62 I consider the resolution of the issue requiring consideration here to be finely balanced. C Tina bears the onus of establishing the existence of a genuine dispute. The case which it puts is vague and unsupported by contemporaneously generated documentation, but I have come to the conclusion that there is a plausible contention requiring investigation in this matter as to the identity of the party with whom Warners contracted.In coming to that decision, I consider the position being contended for by C Tina by Mr Vouzas' evidence to be somewhat shadowy, but I do not consider, as the authorities describe it, that the scenario presented by C Tina is so devoid of substance that no further investigation is warranted. There is no evidence as there often is in these types of applications put on by Warners which overwhelms C Tina's case, nor has Warners demonstrated that C Tina's case is implausible, devoid of substance and not warranting a conventional inter partes trial.

63 In coming to that decision I have some misgivings concerning the evidence relied upon by C Tina but I am not entitled in an application of this type, based on evidence without cross examination and the other mechanism of an inter partes trial, to come to a conclusion that the position being put by C Tina is spurious or implausible. I do not form a balancing exercise between the strengths of the competing contentions. The authorities indicate I should not embark on an inquiry as to the credit of a deponent whose evidence is relied upon by an applicant to set aside a statutory demand save in extreme circumstances. For these reasons, I will order that the statutory demand which was served on C Tina by Warners be set aside.

64 The costs should follow the event however if the parties wish to make any submissions in that regard, they should file and serve written submissions in that regard, not exceeding 5 pages by 4.00pm on 25 February 2019.

[1] The Demand is erroneously dated 25 September 2015.

[2] The date of swearing is erroneously dated 19 October 2017.

[3] Mr Vouzas erroneously states paragraph 14 of his First Affidavit that he sent an email to Mr Warner, but the message was in fact sent via text message.

[4] See exhibit SNV-9 to Mr Vouzas' First Affidavit.

[5] In Mr Warner's Affidavit sworn 22 November 2018, he states at paragraph 58 that he was only made aware of the existence of 104 Holdings in a text from Mr Vouzas on 6 June 2018 however it appears Mr Warner is in fact referring to an email rather than a text message, see paragraph 19 of Mr Warner's affidavit and exhibit SNV-9 to Mr Vouzas' First Affidavit.

[6] See paragraph 19 of the Second Vouzas Affidavit.

[7] [2015] VSCA 330, [47] - [50].

[8] [2016] FCA 1265, [17].

[9] [2001] VSCA 89, [3] - [4].

[10] See paragraph 19 of Mr Vouzas' Second Affidavit in response to Ms Barham-Floreani's Affidavit sworn 22 November 2018 at paragraph 32.