Plaintiff v Defendant

1. This is the ruling in relation to the two applications to set aside statutory demands issued by the independent administrator ('Administrator') of the Estate of Robert Joseph Martin (deceased) ('Estate'). The demands are for debts said to be due and owing to the Estate by two entities established by the deceased in connection with a dry powder food products manufacturing business, being Techniques Incorporated Pty Ltd ('Techniques') and Robloi Pty Ltd ('Robloi') as trustee for the Winterton Road Trust ('Trust'; collectively, 'Companies'). The demanded debts are recorded in the financial statements of each company as a current liability owed to the deceased. In addition to the Administrator, the Estate also has an executor, Mr Matthew Martin ('Mr Martin'), who is one of the deceased's sons. Mr Martin is the sole director of both Companies and is the managing director of Techniques' business. Mr Martin did not consent to the Administrator issuing the statutory demands.
2. The Companies seek orders that the demands be set aside under ss 459G and 459H of the Corporations Act 2001 (Cth) on the basis that there is a genuine dispute as to whether the amounts demanded are debts owed by the Companies to the Estate, and if so, whether those debts are due and payable. In short, the Companies say that their respective financial statements are inaccurate insofar as they indicate that the deceased loaned funds to the Companies and they dispute that the recorded liabilities to the Estate are loans which are due and payable. The Companies say that the amounts are actually equity contributions, gifts, loans that are not presently due and payable, or have led to Robloi holding property on resulting trust in favour of the deceased. The Companies rely on evidence of the deceased's conduct in respect of the liabilities, the manner in which he moved funds between the companies he controlled, and his attitude towards his businesses to evidence their claims. They also contend that the demands should be set aside for some other reason under s 459J on the basis that they have been issued for a collateral purpose and without the consent of Mr Martin, who is a co-executor of the Estate.
3. Techniques' application is in S ECI 2025 06559 and Robloi's application is made in proceeding S ECI 2025 06556. The Companies are commonly represented and the proceedings were heard together.
4. The evidence relied upon by the parties in each proceeding is largely the same. With one exception, the same deponents have sworn affidavits in both proceedings. The affidavits are largely common in form save for a small proportion of each affidavit which gives specific evidence relating to the amounts demanded specifically from Techniques or Robloi. The Companies rely upon:

(a) two affidavits of Mr Martin filed in each proceeding on 10 November 20250F[1] and 8 December 2025;1F[2] and

(b) two affidavits of Mr Paul Warburton filed in each proceeding on 10 November 20252F[3] and 8 December 2025.3F[4] Mr Warburton is the external accountant of the Companies who was responsible for preparing the financial statements.4F[5]

1. Techniques also relies upon an affidavit of Herman Andrew Wessels filed on 10 November 2025.5F[6] Mr Wessels is Techniques' internal accountant.
2. Following an application by the Administrator, on 27 November 2025, O'Meara J made an order in S ECI 2025 06832 directing that the Administrator is justified in defending these proceedings, and that it is appropriate for the costs of this proceeding, including any costs order made, to be paid from the assets of the Estate. This order was made over the opposition of Mr Martin, who was the defendant to that proceeding in his capacity as executor, and was represented at the hearing by counsel.
3. The Administrator relies upon the 2024 financial statements of the Companies to evidence the demanded debts, together with s 1305 of the Corporations Act 2001 (Cth), which provides that the financial statements are prima facie evidence of those liabilities. The Administrator disputes that the Companies have established a genuine dispute that refutes or calls into question the prima facie liability recorded in the financial statements. Further, the Administrator contends that the conduct of the deceased as evidenced in the Companies' evidence supports that the demanded sums are director loans (as recorded in the financial statements) which are repayable on demand. The Administrator says that he is appointed jointly and severally with Mr Martin to administer the Estate and says that the demands were issued having regard to genuine concerns as to the solvency of the Companies and in light of his duties as administrator to bring in the assets of the Estate. The Administrator has sworn and filed an affidavit in each proceeding on 1 December 2025.6F[7]
4. For the reasons that follow, I have concluded that the Companies have not adduced sufficient evidence to establish that the demanded debts are genuinely disputed. In short, the evidence relied upon does not rise above mere assertion that the amounts provided by the deceased were equity contributions, gifts, loans which are not yet due and payable, or have led to property being held on a resulting trust in favour of the deceased. The Companies have failed to adduce contemporaneous records available to them which might support their assertions as to the character of the amounts provided to them by the deceased. Their assertions are contradicted by the Companies' evidence as to deceased's conduct during the course of his lifetime, and the unqualified reference to the loans in documents relating to the Estate and its value, and the prima facie evidence contained in the financial statements as to the existence and quantum of the loans.
5. I am also not satisfied that the demands should be set aside for some other reason under s 459J(1)(b). I am not satisfied that the demands were issued for an improper or collateral purpose to apply pressure to obtain payment of disputed debts. The demands were issued in circumstances where the Administrator held valid concerns as to the solvency of the Companies, and did not know that the demanded sums were genuinely disputed. Given Mr Martin's role as shareholder and sole director of the Companies, the fact that the demands were issued without the consent of Mr Martin does not provide some other reason to set the demands aside.

1. The following background to these applications is not disputed.

1. On 9 November 1983, Techniques was incorporated and the deceased was appointed one of its three directors. From 1999, the deceased was the sole director of Techniques, until Mr Martin was appointed as his co-director on 1 February 2008.7F[8] The deceased previously held 66.67% of the issued share capital in Techniques, with 26.67% held by RJ Martin Nominees Pty Ltd, and 6.66% of shares were held by Mr Martin. The deceased owned all of the issued share capital in RJ Martin Nominees Pty Ltd, and thereby directly and indirectly owned 93.33% of Techniques' shares.8F[9] Techniques operates a dry powder food products manufacturing business from premises located at 29 to 33 Winterton Road, Clayton. Two of these properties are leased from Robloi, and the third is leased from another related entity.9F[10]
2. On 28 June 2004, Robloi was incorporated and the deceased was appointed its sole director, secretary and shareholder. On 30 January 2018, Mr Martin was also appointed a director and secretary of Robloi. Robloi, in its capacity as trustee of the Trust, owns warehouse and factory premises at 29 and 33 Winterton Road, Clayton, which it has leased to Techniques for many years.10F[11] The Trust is a discretionary family trust of which the deceased's four children are general beneficiaries.11F[12] Robloi has never traded and its sole purpose is hold the real property for the benefit of the family's interests.12F[13]
3. Mr Martin has worked full time in Techniques' business since about 1983, and since 2010 has been its managing director.13F[14] Since his father's death, Mr Martin has been the sole director and secretary of both Techniques and Robloi.

1. Robert Martin passed away on 3 June 2021, leaving four children: Mr Martin, Robert Henry William Martin, Christina Lois Kuppers, and Lucinda Mary Ross. The deceased left a will dated 23 January 2019 and probate of the will was granted on 8 December 2021 to Mr Martin and Ms Ross.14F[15]
2. Clauses 6 to 8 and 12 of the deceased's will provide for bequests of the deceased's shares in the issued capital of various companies, including Robloi (cl 6 of the will) and Techniques (cl 7(c) of the will). Pursuant to the will:

(a) Mr Martin and Ms Ross were bequeathed the deceased's shares in Robloi, and they now each hold 50% of its issued share capital.15F[16]

(b) Mr Martin was bequeathed all of the deceased's shares in the issued capital of Techniques.16F[17] Mr Martin presently holds 22 of the 30 issued shares in Techniques, with the remaining eight shares held by a related entity, RJ Martin Nominees Pty Ltd.17F[18] Mr Martin has a 25% interest in RJ Martin Nominees, as the deceased bequeathed his shares in RJ Martin Nominees to his four children as tenants in common in equal shares.18F[19] Therefore, ultimately, Mr Martin has a 80% ownership interest in Techniques.

(c) Mr Martin was also bequeathed all of the deceased's shares in a number of other entities and all of the units in the Martin Family Investment Unit Trust.19F[20]

1. Clauses 9 and 10 of the will provide:
   1. The preceding bequests to my son MATTHEW DAMIEN MARTIN are made in grateful appreciation for the enormous amount of time and effort contributed by my son to the wellbeing and management of my business interests.
   2. For the avoidance of doubt, any loan accounts which are owing to me by any of the preceding companies or trusts shall be a debt owing to my estate shall form part of the residue of my estate.
2. The residue of the Estate is to be divided equally between the deceased's four children, after the payment of debts, funeral and testamentary expenses.20F[21]
3. The inventory of assets and liabilities of the Estate dated 4 November 2021 and exhibited to the affidavit sworn by Mr Martin and Ms Ross in connection with the application for probate valued the Estate at $2,942,583.27. This is comprised largely of monies owed from companies in the 'Robert Martin Group', being entities formerly controlled by the deceased or in which he had an interest.21F[22] The inventory refers to a loan to Robloi as an asset of the estate valued at $2,891,692. The Techniques loan is not referred to in the inventory.
4. The administration account of the Estate dated 14 November 2023 filed by Mr Martin and Ms Ross valued the Estate at $6,998,731.22F[23] It refers to loans owed by both Robloi and Techniques as uncollected assets of the Estate, with the Robloi loan valued at $2,742,130 and the Techniques loan valued at $541,123.
5. Following an application by Ms Ross for the executors to be replaced with an independent administrator, on 8 July 2024, Ms Ross was removed as executor, and Lachlan Vallance was appointed administrator of the Estate.23F[24] Mr Martin remained as executor.
6. The recitals to the Order appointing the Administrator record that Ms Ross alleged that there was a conflict between the interests of Mr Martin and those of the Estate, including because Mr Martin did not want to wind up the business formerly owned by the deceased and Mr Martin to pay the debts owing by the business to the Estate.24F[25] The Court records:

However, some of these conflicts or potential conflicts have either fallen away, or are not really conflicts, or can be addressed by other means. The defendant has agreed that the business should be sold, preferably in an orderly fashion, such that this potential conflict falls away.25F[26]

1. The Order does not directly refer to the Companies' liabilities to the deceased. However, it does record that Ms Ross raised discrepancies in the financial information regarding the Estate over time, in particular discrepancies between the original inventory and the administration account, and concerns about possible tax consequences of undocumented loans from the Estate to the business.26F[27] The Court concluded that these were matters that can be investigated by the Administrator, and that the tax concerns will exist regardless of the identity of the executor.27F[28] The Court determined that it was not appropriate to remove Mr Martin as executor.
2. Ms Ross and Ms Kuppers have both filed proceedings seeking family provision against the Estate under Part IV of the Administration and Probate Act 1958.28F[29] Mr Martin says that Ms Ross' application to have herself removed as executor was motivated by her wish to commence Part IV proceedings.29F[30]
3. After his appointment, the Administrator engaged Fordham Business Advisors Pty Ltd to determine the market value of the Estate's assets in the Robert Martin Group and prepare a report setting this out for the purpose of identifying the value of the Estate.30F[31] Fordham prepared a valuation up to 30 June 2023,31F[32] and an addendum which addressed the market value of the assets as at 30 June 2024.32F[33] The Fordham report contains disclaimers, including that it has been prepared solely for the purpose of valuing the Robert Martin Group and that the report should not be used or circulated for any other purpose without Fordham's written consent.
4. The Fordham report states their approach was to 'review the net assets reported in the accountant prepared financial statements for the year ended 30 June 2023 for the entities that Robert Martin was a shareholder' and then adjust the net asset book value 'based on the independent valuation obtained by the executors of the Estate'.33F[34]
5. For Techniques, the Fordham report adopts adjustments set out in a valuation of Techniques' business as at 31 December 2023 by Rushmore Group.34F[35] The Rushmore valuation is addressed to Mr Martin and dated 12 June 2024.35F[36] It was prepared for the purpose of assessing the fair market value of 100% of the equity of Techniques as at 30 December 2023 for the purpose of a possible acquisition or disposal of an interest in Techniques.36F[37] It concludes that the fair market value of the business on a capitalisation of future maintainable earnings is $1,884,787, which after adding surplus assets of $1,991,808 and less its net financial liabilities of $5,058,664, that the adjusted net assets of Techniques is negative $1,182,070. The report concludes that the fair market value of 100% of the equity in Techniques is nil.37F[38] Appendix 6 to the Rushmore valuation sets out the adjusted balance sheet for Techniques, which notes the book value of the loan from the deceased as at 31 December 2023 to be $541,123. Rushmore does not adjust the value of this liability to the deceased.38F[39]
6. The Rushmore valuation includes disclaimers and limitations on its use. It states that the report is based on financial and other information provided to it, which the valuer believes to be reliable, complete, and not misleading. The report states that the information was evaluated through analysis, enquiry and review for the purposes of the report, but was not subject to an audit or independent verification of its accuracy and reliability.39F[40]
7. Insofar as the Fordham report as at 30 June 2023 touches upon Techniques and the debt the subject of the statutory demand, it provides that:

(a) Techniques has insufficient assets to meet the liabilities resulting in an unadjusted book value net asset deficiency of $2,359,833, as at 30 June 2023.40F[41]

(b) The book value of the loan to the deceased as at 30 June 2023 is $541,123.41F[42]

(c) As at 30 June 2023, Techniques owes $541,123 to the Estate.42F[43]

(d) Techniques has an adjusted net asset value of negative $596,713 with a market value of $nil.43F[44]

(e) If all assets of the company were disposed of on a liquidation basis, the Estate, as direct and indirect 93.33% shareholder in Techniques, would need to contribute capital to discharge the net debt in Techniques. The Fordham report opines that this would require capital injection of $556,932, which could be offset by the loan owed to the Estate ($541,123), such that the Estate would need to contribute a net sum of $15,809.44F[45]

1. The Fordham addendum report updates the market value of the Estate's interest in the Robert Martin Group as at 30 June 2024. It makes no adjustments to the loan owed to the Estate by Techniques as set out in the initial Fordham report. It continues to adopt the same adjustments in the Rushmore valuation as at 31 December 2023.45F[46] The addendum concludes that the adjusted book value of Techniques is negative $1,320,933, and that the net capital injection required from the Estate to realise the assets is $691,704.46F[47]
2. Insofar as the Fordham report as at 30 June 2023 touches upon Robloi and the debt the subject of the statutory demand, it provides that:47F[48]

(a) The purchase of the real properties by Robloi as trustee of the Trust was partially funded by the deceased, and these properties are recognised at cost in the financial statements, which is significantly less than the value stated in a valuation prepared by Crabtree Real Estate in February 2023.

(b) The book value of the loan to the deceased is $2,742,130 as per Robloi's financial statements.

(c) Even though the Trust has an unadjusted net asset deficiency as a result of losses from rental activities, the upward revaluation has significantly increased the capital of the Trust. The Trust would have enough equity to repay the $2,742,130 loan owed to the Estate as reported in the 2023 financial statements after disposing of the two properties.

(d) The loan is recoverable by the Estate provided that the Trust liquidates its property holdings.

1. These opinions and figures remained unchanged in the Fordham addendum report which addresses the position as at 30 June 2024.

1. The Companies use accounting software to maintain their records, with Techniques using an accounting package which has been adapted to the Robert Martin Group's needs and Robloi using Xero.48F[49] Mr Wessels, as the internal accountant, does the day-to-day bookkeeping for the Companies.49F[50] Mr Warburton, as the external accountant, is responsible for preparing the financial statements and tax returns of the Companies.50F[51]
2. The 2024 financial statements of the Companies record the demanded debts as current liabilities, in that:

(a) Techniques' financial statements record a current liability on the balance sheet as 'Loans - RJ Martin' for $541,12 for the years ended 30 June 2024 and 30 June 2023.51F[52]

(b) The financial statements of the Trust (of which Robloi is the trustee) record a current liability on the balance sheet to 'RJ J Martin' in the amount of $2,742,130 for the years ended 30 June 2024 and 30 June 2023.52F[53]

1. The 2024 financial statements of Techniques and the Trust are both signed by Mr Warburton on 10 October 2024. Both sets of financial statements include a 'Compilation Report' signed by Mr Warburton.53F[54] The Trust's Compilation Report states:

We have compiled the accompanying special purpose financial statements of [the Trust] (Robloi Pty Ltd) which comprise the balance sheet as at 30 June 2024, and the income statement for the year then ended, a summary of significant accounting policies and other explanatory notes. The specific purpose for which the special purpose financial statements have been prepared is to provide information relating to the performance and financial position of the trust that satisfies the information needs of the director of the trustee company and of the beneficiaries.54F[55]

_The responsibility of the trustee_55F[56]

The director of the trustee company is solely responsible for the information contained in the special purpose financial statements, the reliability, accuracy and completeness of the information and for the determination that the basis of accounting used is appropriate to meet their needs and for the purpose that the financial statements were prepared.

Our responsibility

On the basis of information provided by the director of the trustee company, we have compiled the accompanying special purpose financial statements in accordance with the basis of accounting as described in the notes to the financial statements and APES 315: Compilation of Financial Information.

We have applied our expertise in accounting and financial reporting to compile these financial statements in accordance with the basis of accounting described in the notes to the financial statements. We have complied with the relevant ethical requirements of APES 110 Code of Ethics for Professional Accountants.

Assurance disclaimer

Since a compilation engagement is not an assurance engagement, we are not required to verify the reliability, accuracy or completeness of the information provided to us by management to compile these financial statements. Accordingly, we do not express an audit opinion or a conclusion on these financial statements.56F[57]

The special purpose financial statements were compiled exclusively for the benefit of the trustee of the trustee company who is responsible for the reliability, accuracy and completeness of the information used to compile them. We do not accept responsibility for the contents of the special purpose financial statements.57F[58]

1. The Techniques Compilation Report is almost identical, with references to the Trust, trustee company, or the director of the trustee company, are replaced with references to Techniques and its directors as appropriate.
2. For Techniques, the only financial statements adduced into evidence were for the year ended 30 June 2024. However, in relation to Robloi only, the plaintiff has adduced evidence of the following selection of earlier financial statements of the Trust:

(a) The 2017 balance sheet records an 'Unpaid Trust Distribution' owing to 'RJ & LA Martin' of $1,980,298 as at 30 June 2017, and that $1,216,064 was owing as at 30 June 2016.58F[59] The 2017 Trust Distribution Statement records that these amounts are composed of the previous year balances, plus capital introduced and their share of the Trust's profit, and plus or minus drawings:59F[60]

(b) The 2019 balance sheet similarly records an Unpaid Trust Distribution owing to RJ Martin of $2,891,692 for the year ended 30 June 2019 and $3,018,173 for the year ended 30 June 2018.60F[61] The 2019 Trust Distribution Statement records that these amounts are composed of the previous year balances, plus capital introduced and their share of the Trust's profit, less drawings:61F[62]

(c) The 2020 balance sheet does not record any unpaid trust distributions, but rather records these amounts as a current liability to RJ Martin for the year ended 30 June 2020 in the amount of $2,849,792.71 and $2,891,692.17 for the year ended 30 June 2019.62F[63] There is no further breakdown of the composition of these amounts.

(d) The draft 2022 balance sheet records a current liability to RJ Martin of $2,768,899 for the year ended 30 June 2022 and $2,785,024 for the year ended 30 June 2021.63F[64] There is no further breakdown of the composition of these amounts.

1. The Administrator says that during the course of the administration of the Estate, Mr Martin prepared and provided to him a balance sheet analysis of the Trust for 2021 to 2024, which shows a debt owing to the deceased in the amount of $2,785,024 in 2021, $2,769,130 in 2022, and $2,742,130 in 2023 and 2024.64F[65] Mr Martin did not specifically dispute or respond this evidence.
2. On 19 November 2024, Mr Wessels sent a letter to the Administrator on Robloi's letterhead, which states that he cannot verify $1,216,064 of the loan balance owing to the deceased by Robloi. Mr Wessels' letter states:

I confirm that I have been employed by Techniques Management Pty Ltd as the internal Company Account [sic] since July 2016. My role encompasses the maintenance of the financial records for Robloi Pty Ltd ATF Winterton Road Trust.

There is currently a loan balance with R J Martin of $2,769,130 of which the commencement dates back prior to the start of my employment. I have not been able to identify any records or source documents that substantiate the loan balance prior to my employment. As a result, I cannot verify the validity of the loan amount as at 30/06/2016.

The loan balance that cannot be substantiated is $1,216,064. The remaining balance can be supported with a reconciliation summary.65F[66]

1. By solicitor letters dated 24 September 2025, the Administrator demanded the debts owed to the Estate as listed in the financial statements of the Companies within 21 days. These letters were addressed to Mr Martin in his capacity as the director of the Companies.66F[67]
2. The demands were responded to by letters from Mr Martin's solicitors dated 15 October 2025. The letter responding to the Techniques demand states:

We note that your letter does not contain any details of the alleged debt such as proof of the advance or repayment terms.

However, as your client is aware, having facilitated a full examination of the 'Techniques Group' by Mr Andrew Firth of the Rushmore Group for the purposes of the Estate, Techniques Incorporated is not able to make any immediate lump sum payment of the debt (if in fact it is owed).67F[68]

1. The letter responding to the Robloi demand notes that the only evidence relied upon to support the existence of the loan is financial statements. The letter then describes the ongoing efforts to realise the Trust's assets, saying:

... the assets of the Winterton Road Trust are currently being realised along with assets of other entities in the 'Techniques' Group'. As soon as the sales are completed, the secured debts of the 'Techniques Group' will be paid, securities discharged and all other debts of the Techniques Group will then be paid, including any substantiated debts to the Estate.

As your client is aware, having facilitated a full examination of the 'Techniques Group' by Mr Andrew Firth of the Rushmore Group for the purposes of the Estate, Techniques Incorporated is not able to make any immediate lump sum payment of the debt (if in fact it is owed).68F[69]

1. The statutory demands were issued on 20 October 2025.
2. The statutory demand issued to Techniques is for $541,123. The debt is described as:

Amount due and owing by the debtor company to the creditor arising from monies lent by the creditor to the company, being the amount recorded as owing by the company to the creditor in the financial statements of the company as at 30 June 2024.69F[70]

1. The demand issued to Robloi is for $1,526,066 and the debt is described in the demand as:

Amount due and owing by the debtor company to the creditor arising from monies lent by the creditor to the company, being the amount recorded as owing by the company to the creditor in the financial statements of the company as at 30 June 2024 ($2,742,130.00) less an amount of $1,216,064.00 which sum the creditor claims is owing by the company to the creditor but which sum (the 'disputed sum') the creditor acknowledges may not be admitted as owing by the company.

Solely for the purpose of this Creditor's Statutory Demand, the disputed sum is not claimed by the creditor in this demand but the creditor reserves all its rights in respect of the disputed sum.70F[71]

1. The Robloi 'disputed sum' is the amount which Mr Wessels was unable to verify, as set out in his letter of 19 November 2024.71F[72]
2. The demands are each supported by an affidavit of the Administrator which states that:72F[73]

(a) the demanded debt arises from money lent by the creditor and is recorded as owing in the financial statements of the Companies as at 30 June 2024, and in the case of the Robloi debt is less the disputed amount of $1,216,064;

(b) he has reviewed the business records of the creditor and the debtor company in relation to the debtor company's account with the creditor;

(c) the debt is due and payable by the Companies; and

(d) he believes that there is no genuine dispute as to the existence or amount of the debt.

1. By solicitors' letter dated 29 October 2025, the Companies outlined the basis of this application to set aside the statutory demands invited the Administrator withdraw the demands.73F[74] In relation to both Companies, the letter states that the demanded debts have been mischaracterised in the Companies' respective financial statements, and points to the lack of written terms and failure to charge interest as indicating that the amounts are not loans which are due and payable. In relation to Techniques, it is said that the deceased would only take money out of Techniques when it could afford to do so, and that he would not have sought payment of the amount in full unless or until Techniques' business was sold. In relation to Robloi, it is said that the amounts were in fact equity funding provided by the deceased which is not due and payable now. Further, it is said that there is some other reason to set aside the demands because they are impermissibly seeking to pressure Mr Martin to sell the Trust's properties sooner than he is able to do so, and because of the Administrator's alleged failure to respond to Mr Martin's attempts to facilitate a smooth and commercial administration of the Estate.

C The Companies' evidence of genuine dispute

1. In this part, I address the Companies' evidence that the demanded sums are genuinely disputed. Given the overlapping evidence, I first address the evidence that is common to both Companies (C.1), and then the evidence which is specific to Techniques (C.2) and Robloi (C.3). In Part C.4, I address the Companies' response to the valuation evidence, that is, the Fordham reports and Rushmore valuations.

1. Mr Warburton is a chartered accountant who has been practising since 1978. He has been the accountant for Robloi since its incorporation in 2004 and for Techniques for approximately 25 years. Mr Warburton is responsible for preparing the financial statements and tax returns for the Companies, and working with the directors to enable this to be done.74F[75]
2. Mr Warburton provides evidence that he has a 'sound understanding about the property, assets, operations, financial intentions and goals and the like' of the Companies and their related entities.75F[76] He said that over the time he has been the accountant for the Companies, he regularly discussed each entity's money, property and goals with the deceased and, since his passing, with Mr Martin.76F[77]
3. Mr Warburton describes his process of preparing the financial statements as follows in relation to both Companies:

The general practice that I would adopt in relation to preparing the [Companies'] financial statements each financial year over the years is that I would do the following:

1. around September or October each calendar year, I would meet with the director or directors of the relevant company to start discussing the financials for the recently completed financial year;
2. the directors [or internal staff] would provide me with printouts from the company's accounting software and I would then vet the information provided and prepare financial statements over the coming months for purposes of preparing tax returns;
3. in those initial years, the companies did not have an internal accountant, but as the business grew the trading companies hired an internal accountant and once that happened and the internal accountant was up to speed, I would often liaise with that internal accountant; and
4. I would receive any relevant information from the [forecasting performed by the] internal accountant[, or other reports needed] to finish preparing the end of year accounts and statutory reporting.77F[78]

1. In relation to the 2024 financial statements for both Companies, Mr Warburton gives the following evidence in relation to the current liabilities the subject of the statutory demands:

I say that ... the description of this amount (as a current liability) [and the amount itself] is not a true and accurate representation of this amount and what it actually relates to.78F[79]

The 2024 financial statements (as all other financial statements prepared by my accounting practice and I) were prepared primarily to determine the taxation payable by the [Companies] in the relevant financial year.79F[80]

...

The funds that [the deceased] parked in the [Companies] were never a loan as such - there were no terms, no interest was payable, there was no timing for when it was to be repaid, [the deceased] would simply decide (and inform me, or whomever was being asked to action, process or record the transaction) where the funds were going and why.80F[81]

I have never sighted any written agreement or documentation prepared by or on behalf of the deceased or the [Companies] to record the amounts advanced as a loan or any type of loan or repayable amount - and for the reasons I say above ..., I would not expect to.... The deceased also did not apply interest to these amounts, and over the years no charges, interest or the like were ever applied.81F[82]

1. Mr Warburton says that the deceased considered the amounts provided to both Robloi and Techniques as equity contributions. The evidence in both proceedings is in like terms, save that the evidence in Robloi sets out that his knowledge of this comes from his conversations with the deceased. I set out this evidence below, with the differences identified in italicised font:

I do not recall the deceased ever referring to the amounts he provided to [Robloi] as 'loans'. On the contrary, from my many conversations with [the deceased] over the years, I recall that he considered and described these amounts as equity contributions and investments. He would gift (use, apply, spend) funds where he chose, but would record where the money went. The use by me of the word 'loan' was not in any way intended by me to suggest that it was a legal loan that would have to be repaid.82F[83]

(b) In relation to Techniques, Mr Warburton says:

I do not recall the deceased ever referring to the amounts he provided to [Techniques] as 'loans'. He would gift (use, apply, spend) funds where he chose, but would record where the money went. The use by me of the word 'loan' was not in any way intended by me to suggest that it was a legal loan. In fact, [the deceased] considered these monies as an equity contribution.83F[84]

1. Mr Warburton explains the conduct of including the amounts as current liabilities in the Companies' financial statements as follows:

I did not give significant thought at the time [these] financial statements were prepared as to how these amounts should be described and classified. Their description was not of importance given the purpose for which the financials were being prepared, namely in order to determine the tax payable by the [Companies] each financial year. The financials were not meant to be, and are not, statutory financial statements.

Mr Vallance should not be relying on these financial statements to claim that the amounts recorded in them are loans that are due and payable by the [Companies] to the Deceased Estate. The reality is that the description I used in [these] financial statements can simply not be relied upon to make such an assertion for the reasons explained in this affidavit.

If Mr Vallance had spoken to me about these matters, I would have said as much to him directly.84F[85]

1. In response to the documents filed in the Estate proceeding prior to the Administrator's appointment which identify the Techniques and Robloi liabilities as loans which are assets of the Estate, Mr Martin says:

I say further that I did not take the word 'Loan' to mean that someone else could simply come and demand it back - that was never the intention or the relationship. [The deceased] would put in and take money out of the Companies as he wished, but once the money was applied somewhere (especially for property or ongoing businesses, all of which were ultimately for the benefit of the family, through the trusts) those funds would stay there until the business or property was no longer needed - at which time it may be sold, and the proceeds applied somewhere else - based on where [the deceased] thought it would be of best use.

Furthermore, if and when the business or a property was sold, it would be appropriate to conduct an analysis of all monies that had gone in and out and determine whether there was any balance needing to be repaid. None of that has happened here, as it would be premature.85F[86]

1. Mr Martin also says that Ms Ross raised issues with discrepancies in the financial information contained in the inventory of assets and liabilities and the administration account, as recorded in paragraph K of Other Matters of the Court's Order dated 8 July 2024.86F[87] However, he does not give any evidence as to Ms Ross' dispute, and does not say whether it extended to the amounts listed as loans to the Companies in these documents.

1. Mr Warburton does not provide additional information in relation to Techniques' liability on its balance sheet. Rather, in his first affidavit, Mr Warburton describes the manner in which the deceased handled his finances and his affairs, which involved moving money freely between his personal and company accounts:

[The deceased] wasn't fond of banks, and so when funds were available, he would use them in his other related entities, as and how he chose. These were never spoken of as being 'loans', there were never interest or charges or timeframes for repayment. Indeed, reviewing previous years, it is plain that some of these funds have been static for many years without any discussion regarding repayment or them needing to be repaid at any point in time. They were simply being used for the benefit of the business, and the family.87F[88]

1. Mr Wessels is Techniques' internal accountant and has 20 years' experience.88F[89] His main duties for Techniques include the preparation of management accounts.89F[90] Mr Wessels' evidence only relates to Techniques' application. He explains that this is because he does not prepare Robloi's financial accounts.90F[91]
2. Mr Wessels provides similar evidence in relation to the Techniques liability. However, Mr Wessels does not say that the amount represents equity contributions by the deceased, or that its categorisation as a loan in Techniques' accounts is incorrect. Mr Wessels gives evidence of the deceased moving money around as follows:

The balance sheet contained in the abovementioned financial statements for [Techniques] lists under current liabilities a loan to [the deceased] in the sum of $541,123.

My review of [Techniques'] records shows that the deceased from time to time gave funds to [Techniques], and he periodically took out funds when he chose. Sometimes he would put them into another company, or use them to fund the purchase of property, or whatever he saw fit. These funds were effectively monies going in to [Techniques] and periodically monies going out to the deceased.

Over the years, I dealt with the deceased occasionally - in particular during the first couple of years of my employment with [Techniques]. The deceased never referred to these amounts as being loans, or that they were to be treated as loans or that the amounts were repayable, or that there should or would be interest or anything of that nature. Likewise, [Techniques'] director Matthew Martin never provided me with such instructions.

I have also never sighted any loan agreement entered into between [Techniques] and the deceased. My review of [Techniques'] records also reveals that interest was not applied on these amounts by the deceased.

My understanding at all times was that these amounts being transferred in and out were simply the deceased making decisions about how he and his entities would use its money.91F[92]

1. In relation to the timing of repayment, Mr Warburton says:

As far as I am aware, [the deceased] never made a demand for payment of these amounts, and he only expected to be paid if and when surplus funds were available given he considered these amounts as an equity contribution.92F[93]

My understanding from my many conversations with Mr Martin about the companies (including [Techniques]) was that he would never put the operations of [Techniques] and its related companies at risk by demanding immediate repayment of amounts.93F[94]

1. In relation to Techniques, Mr Martin disputes that the Techniques liability is a loan, and says that the Administrator's claim that the amount is a debt due and payable is 'simply wrong'.94F[95] Unlike Mr Warburton, Mr Martin does not say that the amount represents an equity investment. Rather, he explains the deceased's conduct towards Techniques and in moving funds around:

These funds are monies that my father paid to [Techniques] as and when [Techniques] required funds to operate its business. My father would only ever take out money from [Techniques] as and when the business could afford to pay, and when he wanted to use it for something else. These amounts were not repayable either on demand or on a set repayment date. Dad hated banks, and he would move the funds around the companies, or use it to buy up more property when he (or the various companies) could afford to do so, and to continue building the business and the property portfolio. Dad also stated to me that Techniques was his child and that if it needed help and support, he would do so as he would for one of his own children.

Since the Statutory Demand was issued, I have also reviewed [Techniques'] books and records. Those books record that from 2014 onwards my father paid monies to [Techniques] and took monies out. For example, during the 2016 financial year [Techniques'] records record about $449,000 being paid by my father through that financial year and in June 2016 my father taking out approximately $102,000. In the 2020 financial year, [Techniques'] records show $400,205 being paid and approximately $175,000 being taken out. What those records consistently show over the years is that my father would put money into [Techniques] (which operated the business) as and when required and then withdraw some money. He never took the entire balance, or anywhere near the entire balance recorded.

My father never called up these amounts or demanded [Techniques] repay them. Further, my father never charged [Techniques] interest on these amounts, he simply used the funds where he considered they could best be used, and applied them elsewhere later, as and when he considered they could be better used.95F[96]

1. Further, like Mr Warburton and Mr Wessels, he notes that he has not located a loan contract for the Techniques liability and says that he does not believe there is or ever was one.96F[97]
2. Mr Martin notes that the Techniques loan is not recorded in the Estate's inventory of assets and liabilities, but does not seek to explain why this was the case in light of the fact that the subsequent administration account does identify the Techniques loan as an asset.97F[98]

1. Mr Warburton provides the following additional information which relates to the Robloi liability on the balance sheet:

A significant part of the amount listed in the 2024 financial statements was provided by the deceased to [Robloi] as an investment to allow [Robloi] to purchase premises at Winterton Road, Clayton owned by [Robloi]. Further amounts provided by the deceased to [Robloi] over the years were provided as equity contributions.98F[99]

1. In his second affidavit, Mr Warburton puts the position with respect to the Robloi liability slightly differently, saying that the loan was an investment in the trust property assets:

The amount owed from the Trust to the Estate was an investment by [the deceased] in the trust property assets. The 'loan' did not attract interest and was tied to the trust assets in that repayment was dependant on the realisation of the assets.99F[100]

1. In relation to the timing of repayment, Mr Warburton says that:

As far as I am aware, [the deceased] never made a demand for payment of these amounts, and did not expect for them to be repaid until the investments were realised.100F[101]

1. As referred to above, the 2017 and 2019 financial statements for Robloi record an amount owing to the deceased as an 'unpaid trust distribution' as at 30 June 2016, 2017, 2018 and 2019, and the 2020 and draft 2022 financial statements record current liabilities owing to the deceased as at 30 June 2019, 2020, 2021 and 2022. Mr Warburton's evidence is that these descriptions are inaccurate, saying:

Neither of the descriptions given in the pre-2020 financial statements or in the financial statements since 2020 (including the 2024 financial statements for [Robloi]) are accurate as the amounts are properly characterised as an investment made by [the deceased].101F[102]

1. Mr Martin's evidence in relation to the Robloi liability closely aligns with that of Mr Warburton.102F[103] Mr Martin says that the amounts were never loans. As to the deceased's conduct with respect of the loans, like Mr Warburton, Mr Martin says that the deceased never treated the amounts as loans, never spoke of them as loans, and did not call up the sums or demand repayment of them. He says that Robloi's books and records reveal that interest was not charged and he has not been able to locate a loan contract within those books and records. Mr Martin says that he is informed by Mr Warburton that the deceased considered these amounts as an equity contribution and investment in Robloi, which he says accords with his understanding and belief.

(a) Mr Warburton gives evidence in both proceedings that he was asked to provide financial documents to Fordham. He says that Fordham sent him no more than three emails seeking information and documents but did not ask him anything about the status of the loans from the deceased to the Companies.103F[104]

(b) Mr Martin raises what may be best described as submissions in respect of the content of the Fordham report, namely pointing to the disclaimer as to use, the fact that it was not prepared for the purpose of these proceedings, and the failure to exhibit the letter of instruction to Fordham. He also refers to what Mr Warburton has informed him about his role in the Fordham report. Mr Martin does not give evidence as to any role he had in the preparation of the Fordham report, nor to his role in the preparation of the financial statements relied upon by Fordham in preparing that report.104F[105]

1. In relation to the Rushmore valuation, Mr Martin gives similar evidence, pointing out the purpose and limitations apparent from the text of the report. He does not give any evidence as to his role in instructing Rushmore to prepare the valuation and the materials provided to it in relation to the liability of the deceased referred to therein.105F[106] Mr Warburton does not give evidence regarding the Rushmore valuation.

D Have the Companies established a genuine dispute?

1. The applicable principles are not in dispute, and the parties agreed that they are summarised in _Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq)_106F[107] ('Malec') and by Hetyey AsJ in in Re Simmoll Pty Ltd.107F[108] The threshold for genuine dispute is low. The dispute must have objective existence, factual particularity and prima facie plausibility, which distinguishes it from a merely spurious claim, bluster, assertion, or something which is merely fanciful or futile. It is not necessary for a fully evidenced claim to be advanced to support a genuine dispute. Something between mere assertion and the proof that that would be necessary at trial may suffice.108F[109]
2. Malec addresses the evidential burden upon an applicant in the following terms:

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 offsetting 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.109F[110]

1. In order to establish a genuine dispute, the Companies must adduce evidence which supports these contentions by reference to the applicable legal tests and do so with sufficient factual particularity and prima facie plausibility to demonstrate that their contentions go beyond mere assertion.

D.2 Is the Techniques debt genuinely disputed?

1. Techniques does not dispute that the deceased provided it with funds.110F[111] However, it says that the character of the funds is genuinely disputed, and that amounts provided to Techniques were not loans, but were in fact equity contributions or, alternatively, gifted by the deceased. I address each of these contentions in turn.

1. The Companies accept that to establish a genuine dispute that the payments by the deceased to the Companies should be characterised as equity contributions, the Companies need to adduce objective evidence as to the terms of the agreements between the deceased and the Companies, pursuant to which the funds were provided by the deceased.111F[112]
2. The only evidence relied upon by Techniques to establish that the advances were an equity contribution is Mr Warburton's statement that the deceased 'considered these monies as an equity contribution':

I do not recall the deceased ever referring to the amounts he provided to [Techniques] as 'loans'. He would gift (use, apply, spend) funds where he chose, but would record where the money went. The use by me of the word 'loan' was not in any way intended by me to suggest that it was a legal loan. In fact, [the deceased] considered these monies as an equity contribution.112F[113]

1. Neither Mr Martin nor Mr Wessels give evidence that the funds provided to Techniques by the deceased were by way of an equity investment.
2. Mr Warburton's evidence that these funds were an equity contribution stands in stark contrast to the balance of his evidence and that of Messrs Wessels and Martin. All three deponents give evidence of the deceased's conduct in periodically giving funds to Techniques and taking it out when he chose. Mr Warburton says that the deceased 'would gift (use, apply, spend) funds where he chose, but would record where the money went'.113F[114] Mr Warburton also says that the deceased 'wasn't fond of banks, and so when funds were available, he would use them in his other related entities, as and how he chose'.114F[115] Mr Wessels says that his review of Techniques' records shows that 'the deceased from time to time gave funds to [Techniques], and he periodically took out funds when he chose', using the monies as 'he saw fit', and that '[t]hese funds were effectively monies going in to [Techniques] and periodically monies going out to the deceased'.115F[116] Mr Martin gives evidence that Techniques' books record that from 2014 onwards, the deceased paid monies to Techniques and took monies out. He gives specific evidence of the 2016 and 2020 financial years, identifying the quantum of money that was put into Techniques and taken out by the deceased during these financial years.116F[117] Mr Martin says that his father 'simply used the funds where he considered they could best be used, and applied them elsewhere later, as and when he considered they could be better used'.117F[118]
3. Each of Techniques' witnesses describe the free and easy movement of money between the deceased and Techniques, including within a single financial year. This free movement of funds is entirely inconsistent with an equity investment. It would be highly unusual for free and easy movement of funds in and out of a company to be an equity investment, which would require the deceased to be issued with additional shares each time he contributed equity, and a return of capital to him or dividends declared each time he withdrew funds. The historical company extract does not reflect any corresponding change in the paid-up capital of Techniques. Further, the paid-up capital of Techniques is $15 for its ordinary shares and $30 for its 'ORD1' shares.118F[119] These amounts are wholly disproportionate to the loan account balance of $541,123. Both the paid-up share capital and the loan account balance are inconsistent with the amounts provided by the deceased being equity contributions. There is no evidence that the payments made by Techniques to the deceased were dividend payments. I therefore accept the Administrator's submission that there is no evidence adduced which supports the contention that the payments being made to the deceased were returns on equity or a dividend.
4. It is not contested that insofar as money was moved in and out of Techniques, it was recorded in the loan account maintained in Techniques' accounting software. Since 2016, Mr Wessels has been responsible for the day-to-day bookkeeping for Techniques and for the preparation of its management accounts. Mr Wessels does not say that this classification or record of the amounts as a loan from the deceased is incorrect, or that Techniques' financial statements are inaccurate. This similarly supports the contention that although the deceased may have never referred to the amounts as a loan, they were in fact loans and were correctly recorded as such in Techniques' accounts.
5. Techniques' evidence addresses the advances only in general terms. There is no evidence that addresses any particular advance made by the deceased to Techniques. The most specific evidence available is the examples of ins and outs set out in Mr Martin's evidence for the 2016 and 2020 financial years. In fact, no contemporaneous records regarding any of the payments by the deceased to Techniques have been adduced. The evidence establishes that Techniques has its financial records contained in accounting software which has been customised to its operations. However, it has chosen not to adduce evidence of the accounting records relating to the amounts advanced by the deceased to Techniques, the frequency of the advances, any notations in the ledger as to the purpose of any particular advance, or any other source documents supporting the accounting entries. Such evidence may have assisted in determining whether there is a plausible contention that the funds advanced were actually equity contributions, which have been mischaracterised as loans in the accounts.
6. I accept that the absence of written terms - including as to repayment - and the failure to charge interest may be consistent with an equity contribution. However, these factors are also not inconsistent with the funds having been loaned. It is not unusual for loans between related companies and individuals to be interest‑free and made without the formalities of a written agreement.119F[120] Loans without express payment terms are loans simpliciter, repayable instanter or on demand.120F[121] Further, where a payment term is void for uncertainty, a loan will be repayable on demand.121F[122] Accordingly, the absence of written terms and the failure to charge interest is neutral in the assessment of whether there is a plausible contention that the funds were an equity contribution.
7. In light of the balance of the evidence, none of which supports the contention that the amounts provided to Techniques were an equity contribution, Mr Warburton's single comment that the deceased 'considered' the amounts to be an equity contribution is not sufficient to maintain a plausible contention requiring further investigation that this is the case.

1. Techniques submits that there is a genuine dispute as to whether the funds were gifted by the deceased to Techniques, such that Techniques may give the funds provided back at its sole discretion, as the funds are not otherwise repayable.122F[123]
2. To establish that this is a plausible contention, Techniques relies upon the same evidence relied upon to establish that the amounts were an equity contribution. This is the evidence as to the deceased's dislike of banks and the flow of money between the deceased and Techniques, as described by Messrs Martin, Warburton and Wessels.123F[124] Techniques particularly relies upon Mr Warburton's description that the deceased 'would gift (use, apply, spend) funds where he chose, but would record where the money went', 124F[125] and Mr Wessel's description that the deceased 'from time to time gave funds to [Techniques]'.125F[126]
3. Mr Martin does not specifically give evidence that the amounts passing between the deceased and Techniques were gifts. As I understand the submission, Techniques says that Mr Martin's evidence is consistent with the amounts being gifted to Techniques, and then to the extent that the deceased withdrew funds, these were gifts from Techniques back to the deceased in its sole discretion.126F[127] Techniques highlights the evidence that the deceased would only withdraw funds 'when the business could afford to pay';127F[128] that he considered Techniques to be 'his child', which he would help and support 'as he would ... one of his own children';128F[129] and that he never called for immediate repayment of the entire recorded balance.129F[130] Techniques argues this evidence is consistent with the funds being gifted to Techniques.
4. The evidence adduced by Techniques on this application does not establish a plausible contention that the deceased gifted funds to Techniques for the following reasons:

(a) The evidence as to the free flow of funds both to Techniques from the deceased and back again is not consistent with a gift, as it evidences that the deceased exercised a right to have the funds he provided to Techniques returned to him so that he might apply them elsewhere. The commercial benefit to Techniques of re-gifting funds back to the deceased is also unexplained.

(b) Techniques' evidence as to the circumstances in which the deceased would withdraw funds from Techniques, namely 'when the business could afford to pay',130F[131] and that he never called for immediate repayment of the entire recorded balance,131F[132] is equally consistent with the proposition that he was entitled to call upon the entire recorded balance, but refrained from doing so. This evidence therefore does not assist in establishing a plausible contention that the funds were gifted, such that the deceased had no entitlement to be repaid.

(c) Given Messrs Warburton and Wessels' descriptions of the free flow of funds between Techniques and the deceased, it is apparent that their use of the words 'gift' and 'gave' in their respective evidence is intended to describe the provision of funds from the deceased to Techniques, rather than intending to convey that the funds have the legal character of a gift. This is readily apparent from Mr Warburton's evidence that the deceased 'would gift (use, apply, spend)', where the terms in parentheses are used as synonyms for the deceased's conduct. None of the terms 'use', 'apply' or 'spend' mean gift. In any event, even if Messrs Warburton and Wessels intended to convey that the funds were gifted, this would only amount to an assertion of the legal character of the funds provided by the deceased, without a sufficient evidential foundation that Techniques was irrevocably entitled to the funds.

(d) If the amounts were a gift, it would be recorded in Techniques' financial records as an asset on the balance sheet, and any disposition by Techniques to the deceased would be recorded as a decrease in the company's asset position. There is no evidence that this has occurred. Mr Wessels, who is responsible for maintaining Techniques' accounting books and records, does not give any evidence that the accounting of the amounts as a loan was a misdescription or undertaken in error. Mr Warburton does say that the financial statements are not true and correct, but does not say precisely how the amounts ought to have been recorded.

(e) The notion of a gift from a director to a company of funds is at best unusual, if not improbable, and the commercial or other rationale for this is not explained in the evidence adduced by Techniques.

(f) Techniques' evidence seems to accept that there is a liability to the Estate which needs to be ascertained. Mr Martin says that 'it would be appropriate to conduct an analysis of all monies that had gone in and out and determine whether there was any balance needing to be repaid'.132F[133] This evidence raises three issues. First, it appears to accept that the money went in and out, which as I have said is inconsistent with the funds having been a gift to or equity contribution in Techniques. Secondly, it accepts that there may be a balance to be repaid to the Estate. Any liability to the Estate is inconsistent with the notion that the funds were gifted to the estate. Thirdly, in light of the loan account, which apparently recorded the ins and outs as referred to in Techniques' evidence, the need for there to be an analysis is nothing more than assertion. There is no evidence which supports that the loan account does not accurately record the amounts given to and taken away by the deceased from Techniques. Mr Warburton's evidence addresses that the funds have been incorrectly classified as a current liability, but does not raise any evidential foundation for a concern that the quantum recorded in the accounts is or may be inaccurate.

(g) In the same manner that I have already described with respect to the equity contribution dispute, Techniques' evidence does not address the particular advances or donations from the deceased to Techniques, nor any particular withdrawals which might have assisted in ascertaining whether the allegations that these amounts were gifts is made out. Rather the evidence is pitched at a level of generality, and Techniques has chosen not to adduce evidence of the movements on the loan accounts or the narratives associated with any particular movement.

(h) I accept that the failure to charge interest on this amount may be consistent with gift, however, for the reasons I have already given, it is also consistent with a loan, such that this evidence is neutral when considering whether there is sufficient cogent evidence to support that the funds have been gifted.

1. Robloi contends that there is a genuine dispute as to whether the demanded sum is one of the following three things:

(a) an equity investment in Robloi by the deceased, which is not due and payable;133F[134]

(b) a loan for the purpose of purchasing real property, which is repayable only once the property has been sold;134F[135] or

(c) not due and payable because the deceased's funds were used to purchase real property, which is now held by Robloi on trust for the deceased pursuant to a resulting trust.135F[136]

1. I will consider each of these in turn.
2. In addition, it was submitted that the previous characterisation of the loans as unpaid trust distributions supports its contention that the amounts were not loaned by the deceased.136F[137] At the hearing, Robloi's counsel cited authority for the statement that unpaid trust distributions are not debts due and payable that may be the subject of a statutory demand.137F[138] I find the relevance of this argument difficult to understand, as Robloi does not contend that the demanded amounts are unpaid trust distributions owing to the deceased. For this reason, I will not consider this argument further.

1. To support its contention that the sum represented the deceased's equity investment, Robloi primarily relies upon the following evidence:

(a) the evidence of Mr Warburton that some of the funds advanced were an investment to allow real property purchase and others were equity contributions;138F[139]

(b) the evidence from Messrs Martin and Warburton that the deceased did not refer to the amounts as loans;139F[140] and

(c) Mr Warburton's evidence that 'from [his] many conversations with Mr Martin over the years, [he] recall[s] that [the deceased] considered these amounts as equity contributions and investments',140F[141] something which accords with Mr Martin's belief and understanding.141F[142]

1. Robloi submits that its evidence as to the deceased's conduct as to the repayment of the amounts advanced is consistent with an equity investment. In this regard, Robloi relies upon its evidence that there was no agreed timing for when the amount was to be repaid,142F[143] that the deceased never made a demand for repayment of these amounts,143F[144] and that he 'did not expect for them to be repaid until the investments were realised'.144F[145] Further, Robloi submits that the failure to charge interest on the amount advanced is consistent with an equity contribution.
2. I am not satisfied that the evidence before me establishes a genuine dispute that the funds were advanced as an equity contribution in Robloi. My reasons for reaching this conclusion are similar to the reasons set out above in relation to the alleged equity contribution in Techniques.
3. Mr Warburton's evidence that the funds were provided 'as an investment to allow [Robloi] to purchase premises' is neutral language, in that as Doyle J said in Ulithorne Wines Pty Ltd v Ulithorne Vineyard Pty Ltd, an investment in a company may be via debt or equity.145F[146] Further, the statement that further amounts over the years 'were provided as equity contributions' is a bare assertion. What is required is an evidential foundation which allows a plausible contention that each time the deceased provided funds to Robloi, they were provided as an equity contribution. That is facts, matters or circumstances at the time the funds were provided which support the contention that they were an equity contribution.
4. Mr Warburton says that the deceased 'considered these amounts as equity contributions and investments'. Again, to the extent that the deceased considered these to be investments, this terminology is neutral as to whether the investments were via debt or equity. The reference to the deceased considering the amounts to be equity contributions supports the genuine dispute alleged by Robloi, but it is not evidence which directly addresses the terms of any agreement between the deceased and Robloi at the time the funds were provided to Robloi. It is only assertion.
5. Mr Warburton's evidence as to an equity contribution stands in contrast to the balance of his evidence, which describes the free flow of funds between Robloi and the deceased, at the discretion and direction of the deceased. Mr Warburton says that the deceased 'would gift (use, apply, spend) funds where he chose, but would record where the money went'146F[147] and 'would simply decide (and inform me, or whomever was being asked to action, process or record the transaction) where the funds were going and why'.147F[148] Mr Martin gives similar evidence as to the free flow of funds between the deceased and Robloi:

[The deceased] would put in and take money out of the Companies as he wished, but once the money was applied somewhere (especially for property or ongoing businesses, all of which were ultimately for the benefit of the family, through the trusts) those funds would stay there until the business or property was no longer needed - at which time it may be sold, and the proceeds applied somewhere else - based on where [the deceased] thought it would be of best use. 148F[149]

1. It is not contested that the ins and outs of money that passed between Robloi and the deceased is recorded in the loan account maintained in the accounting software Xero, and that the value of the loan account went up and down over time. The following table shows the loan account value as at 30 June of the following financial years, according to the financial evidence adduced by Robloi:149F[150]

1. As this table demonstrates, the loan account balance went up as at the balance date from 2016 to 2018, then down from 2019 to 2023. Since 2023, the balance has been $2,742,130. It also shows that the loan account balance has reduced since the deceased's death on 3 June 2021, which is not explained in the materials. These fluctuations are also set out in the balance sheet analysis prepared by Mr Martin.150F[151] There is no evidence of any fluctuations in the loan account balances within any financial year, or the relevant journal entries relating to that account, which might have been of assistance to determining whether there is a plausible contention that these amounts are equity contributions.
2. According to Mr Warburton, Mr Wessels presently does the day-to-day bookkeeping for Robloi using the accounting software Xero, but that prior to Mr Wessels' employment in 2016, Robloi's bookkeeping was undertaken by Mr Warburton and a mix of internal staff.151F[152] Consistent with this, on 19 November 2024, Mr Wessels wrote to the Administrator to advise that there was 'currently a loan balance with the deceased of $2,769,130'.152F[153] As set out above at paragraph [38], Mr Wessels' letter indicates that he sought to verify and substantiate the loan account balance by reference to records and source documents, and that he was able to verify the loan entries which followed the commencement of his employment in 2016. The letter states that $1,216,064 of the loan balance pre-dates his employment and cannot be substantiated by reference to records and source documents. That is, Mr Wessels has, according to this letter, verified the sum of $1,526,066 demanded in the statutory demand by reference to records and source documents. Robloi has not adduced any evidence which seeks to explain this letter from Mr Wessels. This letter, and the verification process apparently undertaken by Mr Wessels, is inconsistent with Robloi's allegation that the amounts represent an equity contribution.
3. Indeed, Mr Wessels has not given evidence as to the letter or the bookkeeping he undertook in relation to the loan account in Robloi's accounts. Mr Wessels explains that:

While I have the same view in relation to [Robloi's] statutory demand as I do to [the demand served on Techniques] I have not made a separate affidavit in relation to Robloi, as I don't prepare their [sic] financial accounts.153F[154]

1. While that may be the case, it remains that given Mr Wessels' role in bookkeeping, Robloi has chosen not to adduce evidence from him or from Mr Warburton as to the Xero records he maintains in respect of the relevant loan account, or the records or source documents Mr Wessels used to undertake the verification work referred to in his letter of 19 November 2024. Further, Robloi has not adduced evidence from Mr Wessels or anyone else which directly addresses the position set out in the 19 November 2024 letter to the Administrator that this is a loan balance owing to the deceased which has been verified by reference to source records insofar as it relates to transactions after 30 June 2016.
2. The ability of the deceased to withdraw funds from Robloi as he wished is inconsistent with the concept of an equity contribution, which would require the return of capital to the deceased or a declaration of a dividend. The historical company extract does not identify any change in the company's paid-up share capital of $12,154F[155] which is wholly disproportionate to the loan balance of $1,526,066 confirmed in Mr Wessels' letter. I accept the Administrator's submission that there is no evidence which supports Robloi's payments to the deceased being returns on equity or dividends.
3. None of Robloi's evidence addresses any particular equity contribution by the deceased to Robloi, other than insofar as Mr Warburton says that the contributions were in part to allow Robloi to purchase real property at Winterton Road, Clayton.155F[156] Robloi did not adduce any evidence as to the timing of the purchase of this real property or the amount contributed by the deceased. The Administrator adduced title searches of the two properties it owns, which identify that Robloi became the registered proprietor of 33 Winterton Road on 8 November 2004 and 29 Winterton Road on 27 February 2019.156F[157] However, the balance of the loan account to the deceased as at 30 June 2019 was $126,481 less than the balance at the end of the prior year.157F[158] This is inconsistent with the contention that the deceased provided funds to Robloi in order to fund this purchase in 2019.
4. For the same reasons set out above regarding Techniques, I accept that the absence of written terms, including as to repayment, and the failure to charge interest may be consistent with an equity contribution, but note that these facts are also consistent with the terms of a director loan at call. Accordingly, this evidence is neutral in the assessment of whether there is a plausible contention that the funds were an equity contribution.
5. I accept that Robloi need not fully evidence its claim in order to sustain a genuine dispute. However, on the basis of the limited evidence that it has adduced, I am not satisfied that it has demonstrated a plausible contention that the funds were in fact an equity contribution by the deceased. The evidence is pitched at a level of generality, and is inconsistent with the evidence adduced by Robloi as to the deceased's conduct in withdrawing sums. No contemporaneous records have been adduced to support the dispute contended for by Robloi. The accepted evidence is that there is no written loan agreement, but this is not the only contemporaneous record one would expect to find. Having regard to Mr Wessels' letter, the use of Xero and the fluctuations in the loan balance, one would expect that there are journal entries and source records which record the movement of funds between the deceased and Robloi, at least from 30 June 2016 onwards.

1. Robloi contends that there is a genuine dispute as to whether the funds were provided by the deceased as a loan for the purpose of purchasing real property that is repayable only once the property has been sold.158F[159] Robloi relies upon Mr Warburton's evidence that the deceased did not expect for the loans to be repaid until the Trust's assets were realised.159F[160]
2. For reasons similar to those I have already outlined, I do not consider there to be sufficient evidence to support a plausible contention that it was a term of the loan agreement between the deceased and Robloi that the amounts would only be repayable upon the sale of the properties. I summarise my reasoning as follows:

(a) I accept that Mr Warburton's evidence supports this contention, however it is inconsistent with the balance of his evidence and that of Mr Martin, insofar as they say the amounts were equity contributions. It is also inconsistent with Mr Warburton's evidence that the amounts were 'never a loan as such',160F[161] and Mr Martin's statement that the amounts 'were never loans'.161F[162]

(b) Further, the evidence of Messrs Warburton and Martin as to the free flow of funds between the deceased and Robloi is inconsistent with the loan only being repayable upon realisation of the property investment.

(c) The evidence establishes that the loan balance reduced over time, but the properties have not been sold. This is inconsistent with the suggestion that the amount was only repayable upon realisation of the properties.

(d) No contemporaneous records have been adduced which support that these were the terms of the deceased's advances to Robloi, as agreed at the time the funds were provided. Having regard to Robloi's use of Xero and the verification work done by Mr Wessels as described in the 19 November 2024 letter, there is a ready basis for inferring that relevant records do exist and are available to Robloi.

1. Lastly, Robloi argues that as the deceased's funds were used to purchase real property, there is a genuine dispute that the property so purchased is held by Robloi on trust for the deceased pursuant to a resulting trust, such that funds advanced by the deceased are not a debt which is due and payable.
2. Robloi relies upon the evidence from Mr Martin in his second affidavit set out above to support its argument that the property is held on a resulting trust.162F[163] Mr Martin's evidence is that use of the term 'loan' was not intended to mean that the Estate could demand repayment, and further that the deceased would put in and take money out of Robloi as he wished, but once the money was applied somewhere, 'those funds would stay until the business or property was no longer needed - at which time it may be sold, and the proceeds applied somewhere else'.163F[164]
3. Robloi did not address the Court on the legal principles of resulting trusts, nor how the evidence adduced by Robloi might sustain circumstances in which a resulting trust will arise at law. Given the evidence that the funds provided to Robloi were used to purchase its real property, I infer that Robloi's submission is that there is a genuine dispute as to whether there is a purchase money resulting trust, which is described in Ford and Lee: The Law of Trusts, as follows:

A resulting trust arises if an owner of property vests the rights in that property in another person without any legally dispositive intention to confer a benefit on that person by way of gift, loan or trust. ...

...

Equity presumes in some instances that an owner who transfers property to another does not intend the recipient of that property to become beneficial owner. The outcome of applying the presumption will be that the recipient holds the property on resulting trust for the original owner. The presumption applies where A purchases property but where title is taken in the name of B (a 'purchase money resulting trust'), and where A voluntarily conveys property to B (a 'voluntary conveyance resulting trust'). In both cases, B is presumed to hold the property on resulting trust for A. The presumption will be displaced by evidence of the owner's intention to the contrary, as proved on the balance of probabilities established by the totality of admissible evidence.164F[165]

1. There is insufficient evidence before the Court to establish a plausible contention that Robloi holds its real property pursuant to a purchase money resulting trust. All of the evidence points to the deceased having intended for Robloi to hold both the beneficial and legal interest in the property. As I have already addressed, there is no evidence adduced by Robloi as to the terms of the funds provided by the deceased to Robloi. The ready inference from the fact that the deceased provided money to Robloi to purchase the property is that he intended to employ a corporate structure to hold legal and beneficial title to the real property, and any interest the deceased had in respect of Robloi is as disclosed in its records, namely as a shareholder and creditor. One of the properties has been held by Robloi since 2004 and the other since 2019, and the evidence suggests that throughout this time, Robloi charged and received rental income from Techniques. Further, the withdrawal of the funds from Robloi by the deceased as recorded in the loan account is inconsistent with the deceased only having an interest in the real property.

D.4 Is there a genuine dispute that the financial statements are not prima facie evidence pursuant to s 1305?

1. The parties agree that the financial statements are admissible and are prima facie evidence of a current liability owing to the deceased by each of the Companies pursuant to s 1305 of the Corporations Act. Section 1305 provides:

(1) A book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book.

(2) A document purporting to be a book kept by a body corporate is, unless the contrary is proved, taken to be a book kept as mentioned in subsection (1).

1. The parties agree, and I accept, that the following summary of the operation of s 1305 found in Plato Holdings Pty Ltd v MVP Financial Pty Ltd (in liq) is accurate:

Section 1305 of the [Corporations] Act operates to dispense with the need to authenticate the books and records of a company, where those documents are kept pursuant to a requirement under the legislation. The provision does not make the books conclusive evidence of the matters they contain, in the sense of requiring the tribunal of fact and [sic] make a finding in terms of the content of the books in the absence of proof to the contrary by the opposing party. Rather, the books are prima facie evidence of the matters stated in them. The weight of that evidence is to be measured in accordance with the common sense of the tribunal of fact.165F[166]

In my view it would be open to the tribunal of fact to find that the prima facie evidence constituted by the company's books is outweighed by other evidence (including evidence adduced by the proponent of the books, even if the opponent does not give evidence about them); or by some quality or characteristic of the books themselves, even if there is no other evidence. In particular, if a book has the appearance of a draft or (being electronic) has a file title indicating that it is a draft, that alone may be sufficient (all other things being equal) for the tribunal of fact to reject the book as evidence of the matter stated in it, notwithstanding that the book is prima facie evidence of that matter; a fortiori if, in addition to having the appearance of a draft, the book contains inconsistencies or ambiguities or the matter otherwise demands explanation.

...

If, for example, there is some doubt as to whether a particular transaction is 'recorded' in a book because of some uncertainty about the status of the document or ambiguity about what it contains, s 1305(1) does not overcome the problem.166F[167]

1. That is, the weight that should be given to the prima facie evidence of the liabilities as recorded in the Companies' books s 1305 is assessed in light of all the evidence adduced.
2. As addressed above, Mr Warburton's evidence as to the financial statements of the Companies is almost identical.167F[168] The only difference is that in relation to Robloi, Mr Warburton says that 'the amounts are properly characterised as an investment made by [the deceased]'.168F[169] Mr Warburton does not say what the proper characterisation of the Techniques amounts ought to be.
3. Mr Warburton says that the description of the loan account in the financial statements as a current liability and the amount itself are not a true and accurate representation of what this amount relates to,169F[170] and that he never intended the financial statements to suggest that the amount 'was a legal loan that would have to be repaid'.170F[171]
4. Mr Warburton does not adduce into evidence the underlying accounting records relied upon him to prepare the financial statements, the particular instructions given to him, or the vetting process that he says he undertook when provided with information from the Companies for the purpose of preparing their year-end accounts.171F[172]
5. He says that when the financial statements were prepared, he did not give sufficient thought as to how these amounts should be described and classified.172F[173] He explains that this is because the accounts were prepared to ascertain each entity's tax position.173F[174]
6. Save for the reference to the need for the Robloi amount to be characterised as an 'investment', Mr Warburton does not address the form that the financial statements should take, or any impact the change in description or re-classification of the sums as equity rather than debt would have, particularly in light of the changing balances from year to year recorded in the financial statements as loans. Mr Warburton does not give evidence of any steps the Companies are or should be taking in light of the concerns he has as to the truth and accuracy of the financial statements.
7. The Companies invite the Court to infer that the description and classification of the amounts provided by the deceased to the Companies, and by the Companies to the deceased, would have no impact upon the Companies' tax position. However, there is no evidential foundation for this submission. Mr Warburton does not give this evidence, and there is no other evidence which addresses what impact, if any, a revised classification of these amounts would have upon the tax position of the Companies or the deceased. The Administrator made submissions, which I accept by judicial notice, that a reclassification of the amounts to equity may have had tax consequences for the deceased, in that if the payments from the Companies to the deceased were by way of dividend, this would have been part of the deceased's taxable income.174F[175]
8. The Administrator submits that in order for Mr Warburton's evidence as to the inaccuracy of the accounts to be persuasive in demonstrating a genuine dispute as to the accuracy of the Companies' financial statements, it needs to be supported by evidence which demonstrates that the funds provided by the deceased were something other than a loan, which would support the contention that the financial statements are incorrect.175F[176] I accept this submission. It is plainly not sufficient to say that the financial statements are incorrect without explaining why, and providing an evidential foundation which supports an alternative classification of the amounts previously recorded as current liabilities.
9. In relation to both of the liabilities, Mr Martin does not give any evidence explaining the reference to these as current liabilities in the financial statements of both the Companies, and does not explain how this occurred given his role as director in the preparation of the accounts and the instructions provided to Mr Warburton.
10. As I have already addressed, on this application, the Companies have not adduced sufficient evidence to found a plausible contention that the amounts provided by the deceased to the Companies, in the case of both Companies, were equity contributions; in the case of Techniques, were gifts; and in the case of Robloi, were either loans repayable upon realisation of the property or gave rise to a resulting trust in favour of the deceased over its real property.
11. I accept the Companies' submissions that Mr Warburton has decades of experience as an accountant with direct knowledge of the preparation of the financial statements, and does not have a financial interest in the Companies (other than in respect of his engagement as their external accountant). However, these matters do not detract from the failure to adduce evidence sufficient to establish a genuine dispute that the demanded amounts are not loans, but are some other form of contribution by the deceased.
12. I therefore accept the Administrator's argument that in light of evidence adduced by the Companies, Mr Warburton's evidence that the classifications of the amounts owing to the deceased as current liabilities are not true and accurate is, in effect, an assertion that the financial statements are not true, which is not sufficiently supported by evidence.
13. Further, and in any event, Mr Warburton's statement that the financial statements are not true and correct is inconsistent with the following:

(a) The preparation of the financial statements by qualified accountants over many years, and well before this proceeding, which recorded the amounts as a current liability to the deceased. Mr Warburton, a qualified and experienced external accountant, prepared the Companies' financial statements, supported since 2016 by Mr Wessels, also a qualified and experienced accountant, who has attended to bookkeeping for Robloi and broader financial management of Techniques.

(b) Mr Martin included the loans owing to the deceased in the Estate's administration account, and in the case of Robloi the Estate's inventory of assets and liabilities as well, both of which pre-date this proceeding. These documents were filed in the probate proceedings, and verified by affidavit without any qualification as to the existence of the Companies' liabilities to the Estate or whether the liabilities are due and payable. The documents were prepared under r 6.03 of the Supreme Court (Administration and Probate) Rules 2023, which requires an executor or administrator to file a true and just account of the administration of the estate, including full particulars of the assets and liabilities of the estate. Mr Martin explains that his use of the word 'loan' in these documents was not intended to mean that someone could come and demand it back.176F[177] However, as I have already found, this statement is not supported by evidence which identifies a plausible contention that the amounts provided by the deceased were something other than a loan. Given this, Mr Martin's evidence as to what he intended when he used the word 'loan' is of limited assistance.

(c) Mr Warburton provided the financial statements to Fordham, in circumstances where he knew they would be relied upon in connection with the administration of the Estate. He did so without any reservation as to their truth or accuracy insofar as they record the liability to the deceased, which was the very thing which mattered to Fordham. Further, there was no suggestion that the accounts were inaccurate and could not be relied upon because they were only prepared for tax purposes. Whilst Mr Warburton says that he was not asked any question by Fordham about the accounts, this evidence does not assist the Companies, because on the evidence before me, there was no reason for Fordham or the Administrator to raise any potential concern that the financial statements were not accurate.

(d) Mr Martin provided the financial statements of Techniques to Rushmore Group for the purpose of completing a valuation, which was in turn for the purpose of a possible acquisition or disposal of an interest in Techniques.177F[178] Mr Martin does not give any evidence addressing his role in instructing Rushmore Group, and there is no suggestion that he informed Rushmore Group that the current liability to the deceased was not due and owing.

(e) Clause 10 of the will expressly contemplates the existence of loan accounts owing to the deceased from the Companies by providing that loan accounts owing to the deceased by companies named in the will are debts owing to the Estate and shall form part of the residue of the Estate.178F[179] Although the Companies submitted that cl 10 of the will is 'ambiguous',179F[180] they accept that cl 10 expressly refers to loan accounts owing to the deceased from Robloi and Techniques.180F[181]

(f) Mr Martin included the loan to the deceased in his balance sheet analysis of Robloi.

1. I accept the Administrator's submission that repeated reliance upon the financial statements by the Companies, Mr Warburton and Mr Martin prior to this proceeding is consistent with them being true and correct. I also accept that is a reason for the Court to put greater weight than it otherwise might have on the accounts pursuant to their prima facie evidential value under s 1305.
2. I do not accept the Companies' submission that I will be impermissibly making a finding of credit against Mr Warburton if I do not accept his evidence that the financial statements are not true and correct. I have not found that Mr Warburton's evidence is untruthful, and I accept that it would be impermissible for me to do so except in the most extreme circumstances.181F[182] I have found that his statement that the financial statements incorrectly classify the amount as current liabilities is without sufficient evidential foundation to establish a genuine dispute. At a trial of these issues, the Companies might be in a position to adduce evidence which supports Mr Warburton's position, but they have not done so on this application.
3. For these reasons, I am not satisfied that there is sufficient evidence before me to establish a genuine dispute as to whether the financial statements are true and correct insofar as they characterise the demanded sums as current liabilities owing by the Companies to the deceased in the amounts stated.
4. I am therefore satisfied on the basis of the evidence before me that pursuant to s 1305 of the Corporations Act, the financial statements provide prima facie evidence of a current liability owing to the deceased by the Companies, in the amounts stated. The Companies' evidence on this application does not undermine the financial statements because they fail to adduce evidence to support a plausible contention that the amounts provided by the deceased to the Companies were anything other than the current liabilities set out in the financial statements.

D.5 Is there a genuine dispute as to whether the debts are due and payable?

1. Lastly, the Companies contend, in the alternative to the arguments addressed in parts D.2 and D.3 above, if the Court is not satisfied that there is a genuine dispute as to whether the amounts are debts due to the deceased, there is a genuine dispute as to whether the debts are due and payable.
2. I understand that the Companies are critical of the Administrator, because it primarily relies upon the financial statements, together with the lack of evidence of any agreement as to payment terms, to establish that the debts are due and payable. However, this criticism does not establish a genuine dispute in the absence of an evidential foundation for a plausible contention by the Companies that the terms on which the deceased provided the funds were such that they are not repayable, or not yet repayable. The Companies bear the onus to adduce such evidence and that onus has not been discharged.

1. At times, the Companies' case appeared to be that the Court need only be satisfied that there is a genuine dispute that the funds provided by the deceased were not loans. This is plainly insufficient. What is required is a plausible contention that the sums provided by the deceased to the Companies were something other than loans and an evidential foundation which supports that position. This requires evidence as to the agreements between the deceased and the Companies at each point in time funds were advanced which indicates that the amounts were provided as something other than loans. As I have explained, the Companies' evidence is insufficient to sustain that its contentions are plausible.
2. I appreciate that the Companies are not in a position to advance evidence from the most important person, namely the deceased, as to the character of the amounts he provided to the Companies. This puts the Companies in a difficult position. However, the evidence they have put forward is plainly insufficient because it only rises to assertions as to what the deponents thought was going on or to the character of the funds provided. The Companies have not adduced contemporaneous records that the Companies should hold that address the loan balance, movements in the loan balance, any accompanying journal entries or notations.
3. There is therefore insufficient evidence to set aside the demands on the grounds of genuine dispute.

E Should the demand be set aside for some other reason?

1. In the alternative to their arguments regarding genuine dispute, the Companies submit that the Court should exercise the discretion found in s 459J(1)(b) of the Corporations Act to set aside the demands for 'some other reason' on the basis that the demands are an abuse of process.

1. The following principles may be drawn from the authorities regarding 'some other reason', and as summarised by Hetyey AsJ in Re MHC Pathology Pty Ltd:182F[183]

(a) the discretion is of broad compass, and extends to conduct that may be described as unconscionable, an abuse of process, or which gives rise to substantial injustice;183F[184]

(b) the court's power is to be used to counter an attempted subversion of the statutory scheme, and is not to be exercised by reference to subjective notions of fairness;184F[185] and

(c) the real question is whether there is good reason to deny effect to a statutory demand as creating a ground for the winding up of the debtor company.185F[186]

1. In Createc Pty Ltd v Design Signs Pty Ltd, Martin CJ observed that:

[T]he purpose of the statutory demand process ... is to provide a means whereby the insolvency of a company may be established for the purposes of an application to wind up that company. Its purpose is not to provide a means whereby those claiming a genuinely disputed debt can avoid the obligation of establishing their entitlement to that debt in a court of appropriate jurisdiction by placing commercial pressure on the party resisting payment.186F[187]

1. The Companies submit that the demands were an abuse of process because the Administrator ought to have known that there was a genuine dispute as to the existence of the debts and whether they are due and payable, and further that the Administrator ought to have known that the Companies were not solvent. In their submission, the Administrator issued the demands for the improper and collateral purpose of exerting pressure on the Companies to pay disputed debts.187F[188]
2. To establish the Administrator's knowledge that the debts were genuinely disputed, the Companies rely upon: (a) Harp Legal's letters dated 15 October 2025 which responded to the letters of demand sent to the Companies on 24 September 2025;188F[189] (b) recital K of the Order dated 8 July 2024 appointing the Administrator, which refers to the existence of a dispute;189F[190] and (c) the fact that the Techniques debt was not included in the inventory of the Estate. Furthermore, they say that the demand is an abuse of process because of the Administrator's conduct and what is claimed to be a refusal to meet and discuss the debts with Mr Martin prior to issuing the demands. The Companies submit that in light of the Harp Legal letters, the Administrator should have taken additional steps to satisfy himself that the debts exist and that they are due and payable prior to issuing the statutory demands.190F[191] The Companies also argue that it is an abuse of process for the Administrator to continue to defend these proceedings, having regard to the Companies' position as set out in their solicitors' letter dated 29 October 2025.
3. In support of their submissions as to Robloi's solvency, and the Administrator's knowledge thereof, Robloi relies upon the evidence of Mr Martin regarding the sale of the Trust's real property, the Administrator's knowledge of the sale process, the evidence of Mr Warburton that Robloi is 'not insolvent or close to it',191F[192] and Mr Martin's statement that Robloi is 'plainly solvent' and the Administrator must be aware of this.192F[193] Techniques relies upon Mr Martin's evidence of the proposed asset sales to allow repayment of secured debt, and the proposed sale of a 25% interest in Techniques' business.193F[194] Mr Martin says that it is his 'firm view that [Techniques] is entirely solvent with or without the sale of a portion of its business, it is only relevant from the perspective that [Techniques] is plainly not insolvent, and [the Administrator] has no justifiable basis for serving the Statutory Demand in these circumstances.'194F[195] Mr Warburton does not give any evidence regarding Techniques' solvency. The Companies also submit that if the Administrator had genuine concerns about solvency, he could and should have made further enquiries of Mr Martin.195F[196]
4. The Companies argue that it was an abuse of process for the Administrator to issue the demands on behalf of the Estate without the consent of Mr Martin as co‑executor. They say that if the Administrator has the power to unilaterally serve the demands, then Mr Martin could equally withdraw the demands, which would lead to circularity, and that this provides some other reason why the demands ought to be set aside.196F[197]
5. Further, the Companies argue that the demands cannot be justified as a product of the Administrator acting in the best interests of the beneficiaries of the Estate, as the beneficiaries of the Estate are identical to the beneficiaries of the Trust. The Companies say that given the fact that the Administrator knew the debts were disputed, the service of the statutory demands has resulted in the depletion of both the Companies' and the Estate's assets through the legal proceedings which have arisen.197F[198] They say that this demonstrates some other reason why the demands should be set aside.

1. I am not satisfied that there is some other reason to set the demand aside.
2. As already addressed, I have found that the evidence on this application does not demonstrate that the debts are genuinely disputed. Consequentially, I am also satisfied that the demands were not an abuse of process because they improperly sought to apply pressure to obtain payment of a debt the Administrator knew was genuinely disputed.
3. In any event, the evidence available to the Administrator at the time the demand was issued establishes that there is prima facie evidence of the liabilities. This evidence was apparently confirmed by the Companies' sole director, Mr Martin, on multiple occasions. Mr Martin instructed Mr Warburton to prepare financial statements of both Companies that included the liability, provided the financial statements of Techniques in his instructions to Rushmore, and included the liabilities in his Robloi balance sheet analysis and the Estate inventory and accounts filed with the Court. Although the inventory only refers to the Robloi loan, the accounts refer to both loans. Further, the 19 November 2024 letter from Robloi to the Administrator confirms that the majority of the debt recorded in its financial statements has been substantiated.
4. I do not accept the Companies' submission that the Administrator was aware that the debts were genuinely disputed at the time the demands were issued. This is because:

(a) The Harp Legal letters dated 15 October 2025 relied upon by the Companies did not put the Administrator on notice that the debts are genuinely disputed. The letters do not explicitly state any dispute, or the basis for one. I accept that both letters refer to the sole reliance upon the Companies' financial statements to evidence the debts, and use the phrase 'if in fact it is owed' in relation to the debts. However, neither letter contains any explanation of the basis upon which the debts are disputed such that the Administrator might be in a position to assess whether the statement rises above mere assertion. The statement that the debts might not exist does not put the Administrator on notice of the facts, matters or circumstances that give rise to a possible dispute. Contrary to any alleged genuine dispute, the Harp Legal letter in respect of Robloi states that 'substantiated debts' to the Estate will be paid after the realisation of assets. The letter does not explain why the debts need to be substantiated. I am therefore not satisfied that the Harp Legal letters put the Administrator on notice that the debts were genuinely disputed.

(b) Recital K of the Order appointing the Administrator recites conduct relied upon by Ms Ross to support her application to remove Mr Martin as executor, and expressly refers to the discrepancies in financial information provided regarding the Estate over time, in particular discrepancies between the original inventory of the Estate and the administration account, and also concerns about the possible tax consequences of undocumented loans from the Estate to the business.198F[199] This paragraph does not expressly refer to a dispute concerning the debts the subject of the statutory demands, and I do not accept that it put the Administrator on notice of a genuine dispute. At best, it puts the Administrator on notice of a dispute as between Ms Ross and Mr Martin and a concern as to the tax position. Further, recital M of the Order provides that the Administrator can investigate the alleged discrepancies in financial information.

(c) The failure to include the Techniques debt in the inventory of the Estate dated 4 November 2021 also did not put the Administrator on notice that the Techniques debt is genuinely disputed. This is because the administration account of the Estate filed some two years later on 14 November 2023 did refer to the Techniques debt as an uncollected asset of the Estate, and did so without qualification.

1. It follows that I do not accept that the Administrator ought to have made further enquiries regarding the debt prior to issuing the statutory demands. It was also not an abuse of process for the Administrator to continue defending these proceedings following receipt of the 29 October 2025 letter. The Administrator's defence of this proceeding has been sanctioned by the Court.199F[200] The criticisms as to the Administrator's failure to meet with Mr Martin do not establish that the demands were an abuse of process or provide 'some other reason' which justifies orders setting them aside.
2. I accept the Administrator's evidence that the demands were issued in circumstances where the Administrator had a genuine concern as to the solvency of both Companies.200F[201] The Fordham report demonstrates that Techniques has a substantial deficiency in net assets and the Rushmore valuation finds that Techniques' business has no market value. The capacity of the Companies to satisfy their respective liabilities to the Estate is dependent upon the sale of the land, including land owned by the Trust, which is secured in respect of Techniques' debts. Mr Martin's evidence that Techniques is 'entirely solvent' and Robloi is 'plainly solvent' rises no higher than mere assertion and is not supported by the evidence available to the Administrator as to the financial position of each Company at the time the demands were issued or since.
3. The Companies rely upon Mr Martin's evidence of the negotiations which have taken place in respect of the sale of the land and a 25% interest in Techniques to demonstrate the solvency of both Companies. They argue that these matters provide some other reason as to why the demands ought to be set aside. If these sales proceed, they may well address any concerns as to the Companies' solvency. However, as at the time the demands were issued, the properties had been on the market since May 2025 and no contract for sale had been entered into.201F[202] The prospect of the sale of the land and a 25% interest in Techniques, which is not the subject of any binding obligation at the time the demands were issued or since, does not demonstrate that the Administrator's concern as to solvency is not genuine, nor that the demands were issued for a collateral purpose.
4. I do not accept the Companies' submission that the Administrator should have made further enquiries as to the Companies' solvency prior to issuing the statutory demands. This is because the course of correspondence between the parties in September 2025 did precisely this, and the Administrator did not receive information from the Companies which allayed his concerns.
5. I do not accept that the fact that Mr Martin, as co-executor, did not consent to the issue of the demands gives rise to some other reason to set aside the demand. This is because:

(a) First, Mr Martin is clearly conflicted in his dealings with the debts owed to the Estate by the Companies. Mr Martin is the sole director of both Companies, with 50% shareholding in Robloi and majority shareholding in Techniques.

(b) Secondly, the Administrator is appointed severally, and is able to take actions in connection with the Estate's assets without the consent of Mr Martin.202F[203] The Administrator's core function is to bring in the assets of the deceased to form part of the Estate, and in doing this the Administrator as co-executor does not require the consent of Mr Martin. The Order appointing the Administrator expressly refers to the appropriateness of the Administrator investigating the consequences of undocumented loans from the Estate.203F[204] The Companies' circularity argument, namely that Mr Martin could unilaterally withdraw the demands, has no force in this context.

(c) Thirdly, given the disparate operation of the will in respect of Mr Martin on the one hand, who inherits the majority holding in Techniques and other entities, and his siblings, who are each entitled to a quarter share in the residue of the Estate, I do not accept the Companies' argument that the demands cannot be justified given that the beneficiaries of the Trust and the residual beneficiaries of the Estate are the same people. In any event, the Administrator's defence of this proceeding has already been sanctioned by the Court.204F[205]

1. I will therefore make orders dismissing the Companies' applications to set aside the statutory demands. Subject to any submissions the parties wish to make on the question of costs, costs should follow the event.
2. I direct counsel to confer on the form of order arising from this ruling. In doing so, the parties and their legal representatives should have regard to the Court's expectations set out in paragraphs 9.1 and 9.2 of the Notice to the Profession: Applications to Set Aside Statutory Demands. I direct that consent or competing minutes of order be provided to the Court by 4:00 pm on 26 March 2026. The matter will be listed for the hearing of any disagreement at 9:30 am on 27 March 2026.

[1] To distinguish between the similar evidence in the two proceedings, I will mark Robloi evidence 'R.' and Techniques evidence 'T.': R.Martin 1 and T.Martin 1.

[5] R.Warburton 1; T.Warburton 1, [4].

[8] Exhibit MDM-1 to T.Martin 1, 16 (Techniques - Current & Historical ASIC Extract).

[9] T.Vallance, [15]; Exhibit MDM-1 to T.Martin 1, 17 (Techniques - Current & Historical ASIC Extract).

[10] T.Martin 1, [7]; R.Martin 1, [9].

[15] Order of Probate and Will of Robert Joseph Martin: Exhibit LJV-1 to R.Vallance, 14-32.

[16] Will of Robert Joseph Martin, cl 6; Robloi - Current & Historical ASIC Extract: Exhibit MDM-1 to R.Martin 1, 15-16.

[17] Will of Robert Joseph Martin, cl 7(c).

[18] Techniques - Current & Historical ASIC extract: Exhibit MDM-1 to T.Martin 1, 17.

[19] Will of Robert Joseph Martin, cl 12.

[21] Will of Robert Joseph Martin, cl 14.

[22] R.Vallance, [14]; Exhibit LJV-1 to R.Vallance, 40-42 (Inventory of Assets and Liabilities).

[23] R.Vallance, [17], Exhibit LJV-1 to R.Vallance, 45 (Administration Account).

[24] Order of Daly AsJ dated 8 July 2024, S ECI 2024 00647: Exhibit LJV-1 to R.Vallance, 33-35.

[25] Order of Daly AsJ, Other Matters [G(i)].

[27] Ibid, Other Matters [K(ii)]-[K(iii)].

[29] R.Vallance [12]; T.Vallance, [12].

[30] R.Martin 2, [4]; T.Martin 2, [4].

[31] R.Vallance, [18]-[19]; T.Vallance, [18]-[19].

[32] Exhibit LJV-1 to R.Vallance, 47-67 (Fordham Report).

[33] Exhibit LJV-1 to R.Vallance, 68-79 (Fordham Addendum Report).

[36] Exhibit LJV-2 to T.Vallance, 77-101 (Rushmore Report).

[49] R.Warburton 1, [9]; T.Warburton 1, [8]-[9].

[51] R.Warburton 1, [4]; T.Warburton 1, [4].

[52] Exhibit PW-1 to T.Warburton 1, 11 (Techniques - 2024 Balance Sheet).

[53] Exhibit PW-1 to R.Warburton 1, 10 (Robloi - 2024 Balance Sheet).

[54] Exhibit PW-1 to R.Warburton 1, 9 (Robloi - Compilation Report); Exhibit PW-1 to T.Warburton 1, 10 (Techniques - Compilation Report).

[55] The Techniques - Compilation Report states that 'The specific purpose for which the special purpose financial statements have been prepared is set out in the notes to the accounts'.

[56] The Techniques - Compilation Report refers to the responsibility of the directors rather than the trustee.

[57] In the Techniques - Compilation Report, this sentence includes the word 'review' before 'conclusion'.

[58] Exhibit PW-1 to R.Warburton 1, 9 (Robloi - Compilation Report).

[59] Exhibit PW-1 to R.Warburton 1, 18 (Robloi - 2017 Balance Sheet).

[60] Exhibit PW-1 to R.Warburton 1, 21 (Robloi - 2017 Trust Distribution Statement).

[61] Exhibit PW-1 to R.Warburton 1, 25 (Robloi - 2019 Balance Sheet).

[62] Exhibit PW-1 to R.Warburton 1, 28 (Robloi - 2019 Trust Distribution Statement).

[63] Exhibit PW-1 to R.Warburton 1, 33 (Robloi - 2020 Balance Sheet).

[64] Exhibit PW-1 to R.Warburton 1, 46 (Robloi - 2022 Draft Balance Sheet).

[65] R.Vallance, [50]; Exhibit LJV-1 to R.Vallance, 236 (Robloi - Balance Sheet Analysis 2021-2024).

[66] Exhibit LJV-1 to R.Vallance, 89 (Letter from Herman Wessels dated 19 November 2024).

[67] Exhibit LJV-1 to R.Vallance, 227-228 (Robloi - Demand Letter); Exhibit LJV-2 to T.Vallance, 239-240 (Techniques - Demand Letter).

[68] Exhibit LJV-2 to T.Vallance, 241 (Techniques - Harp Legal Letter dated 15 October 2025).

[69] Exhibit LJV-1 to R.Vallance, 229 (Robloi - Harp Legal Letter dated 15 October 2025).

[70] Exhibit MDM-1 to T.Martin 1, 10 (Techniques - Statutory Demand).

[71] Exhibit MDM-1 to R.Martin 1, 10 (Robloi - Statutory Demand).

[72] See paragraph [38] above.

[73] Exhibit MDM-1 to R.Martin 1, 11 (Robloi - Affidavit Accompanying Demand); Exhibit MDM-1 to T.Martin 1, 11 (Techniques - Affidavit Accompanying Demand).

[74] Letter from Parkston Lawyers to Hicks Oakley Chessell Williams dated 29 October 2025: Exhibit to R.Martin 2, 8.

[75] R.Warburton 1, [2], [4], [10]; T.Warburton 1, [4], [10].

[76] R.Warburton 1, [6]; T.Warburton 1, [6].

[77] R.Warburton 1, [7]; T.Warburton 1, [7].

[78] R.Warburton 1, [10]; T.Warburton 1, [10]. Italicised font in square brackets identifies the additional wording included in Mr Warburton's evidence regarding Techniques. Underlined font in square brackets identifies the additional wording included in Mr Warburton's evidence regarding Robloi.

[79] R.Warburton 1, [14]; T.Warburton 1, [14]. Italicised font in square brackets identifies the additional wording included in Mr Warburton's evidence regarding Robloi.

[80] R.Warburton 1, [15]; T.Warburton 1, [15].

[81] R.Warburton 1, [17]; T Warburton 1, [17].

[82] R.Warburton 1, [20]; T.Warburton 1, [19].

[84] T.Warburton 1, [18] (emphasis added).

[85] R.Warburton 1, [23]-[25]; T.Warburton 1, [21]-[23].

[86] R.Martin 2, [8]-[9]; T.Martin 2, [8]-[9].

[87] R.Martin 2, [10]; T.Martin 2, [11].

[104] R.Warburton 2, [3], [5]; T.Warburton 2, [3], [5].

[105] R.Martin 2, [11]-[12]; T.Martin 2, [12].

[107] [2015] VSCA 330 at [47] to [51] ('Malec').

[108] [2021] VSC 693 at [7] to [19].

[109] TR Administration Pty Ltd v Frank Marchetti & Sons Py Ltd [2008] VSCA 70, [71] ('TR Administration').

[111] Techniques - Outline of Plaintiff's Submissions dated 8 December 2025, [18] ('T.Plaintiff's Submissions').

[112] Transcript of these Proceedings (9 January 2026), 24 ('Transcript').

[113] T.Warburton 1, [18] (emphasis added).

[119] Exhibit MDM-1 to T.Martin 1, 17 (Techniques - Current & Historical ASIC Extract).

[120] See, eg, Ulithorne Wines Pty Ltd v Ulithorne Vineyard Pty Ltd [2020] SASC 32, [15] ('Ulithorne').

[121] Ogilvie v Adams [1981] VR 1042, 1043; Ulithorne, [16].

[122] See, eg, Universal Greening Pty Ltd v Sabine [1999] FCA 529, [20].

[124] T.Martin 1, [16]-[18]; T.Warburton 1, [16], [19]-[20]; Wessels, [5]-[9].

[125] T.Warburton 1, [18] (emphasis added).

[126] Wessels, [6] (emphasis added).

[130] T.Martin 1, [17]-[18]; T.Warburton 1, [19]-[20].

[132] T.Martin 1, [17]-[18]; T.Warburton 1, [19]-[20].

[136] Transcript 22, 26; Robloi - Outline of Plaintiff's Submissions dated 8 December 2025, [17] ('R.Plaintiff's Submissions'). Whilst Techniques' written submissions also refer to the Techniques amount being repayment from proceeds of sale 'effectively under a resulting trust', this argument was not pursued at the hearing: T.Plaintiff's Submissions, [18].

[137] R.Plaintiff's Submissions, [19].

[138] Farid Assaf, Assaf's Winding Up in Insolvency (LexisNexis, 3rd ed, 2021), [3.68].

[140] R.Warburton 1, [19]; R.Martin 1, [12(b)].

[144] R.Martin 1, [12(c)]; R.Warburton 1, [20].

[145] R.Warburton 1, [20]. See also R.Martin 2, [8].

[146] Ulithorne (n 120) [22], [25].

[150] R.Vallance, [48]; Exhibit PW-1 to R.Warburton 1, 10, 18, 25, 33, 46 (Robloi - Balance Sheets).

[151] Exhibit LJV-1 to R.Vallance, 236 (Robloi - Balance Sheet Analysis 2021-2024).

[153] Extracted at paragraph [38] above.

[155] Exhibit MDM-1 to R.Martin 1, 15 (Robloi - Current & Historical ASIC Extract).

[157] Exhibit LJV-1 to R.Vallance, 103, 105 (Title Searches - Volume 9124, Folios 095 and 097).

[158] The loan account balance as at 30 June 2019 was $2,891,692, compared to $3,018,173 as at 30 June 2018. See the table at [97] above.

[160] R.Warburton 1, [20]; R.Warburton 2, [6].

[163] R.Martin 2, [8]-[9]; set out at [55] above.

[165] Ford and Lee: The Law of Trusts (Thomson Reuters, last review 11 April 2023), [21.000] (citations omitted).

[166] [2025] WASC 226, [75], referring to inter alia Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, [396]-[397] (citations otherwise omitted).

[168] See paragraphs [52], [54] and [67] above.

[170] R.Warburton 1, [14]; T.Warburton 1, [14].

[171] R.Warburton 1, [19]; T.Warburton 1, [18].

[172] R.Warburton 1, [10(b)]; T.Warburton 1, [10(b)].

[173] R.Warburton 1, [23]; T.Warburton 1, [21].

[174] R.Warburton 1, [15]; T.Warburton 1, [15].

[177] R.Martin 2, [8]; T.Martin 2, [8].

[178] Exhibit LJV-2 to T.Vallance, 77 (Rushmore Report, 1).

[179] See paragraphs [15] and [16] above.

[180] R.Plaintiff's Submissions, [20].

[182] Malec (n 107) [50]; TR Administration (n 109) [64], quoting Eyota Pty Ltd v Hanare Pty Ltd (1994) 12 ACSR 785, 787.

[183] [2020] VSC 789, [75].

[184] Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3, [27].

[185] Rinfort Pty Ltd v Arianna Holdings Pty Ltd [2016] NSWSC 251, [84].

[186] Neutral Bay PL v Deputy Commissioner of Taxation [2007] QCA 312, [84].

[187] [2009] WASCA 85, [2].

[188] R.Plaintiff's Submissions, [25]-[31]; T.Plaintiff's Submissions, [25]-[31].

[189] See paragraphs [40]-[41] above.

[190] Order of Daly AsJ dated 8 July 2024, S ECI 2024 00647.

[194] T.Martin 1, [26]; T.Martin 2, [16].

[199] Order of Daly AsJ dated 8 July 2024, S ECI 2024 00647.

[200] Order of O'Meara J dated 27 November 2025, S ECI 2025 06832.

[201] R.Vallance, [29]; T.Vallance, [26].

[202] R.Vallance, [35]; T.Vallance, [33].

[203] G E Dal Pont and K F Mackie, Law of Succession (LexisNexis, 2nd ed, 2017), [10.42], [11.90]; Simmons v Ross [2018] VSC 306, [74].

[204] Order of Daly AsJ, Other Matters [H], [K(ii)-(iii)].

[205] Order of O'Meara J dated 27 November 2025, S ECI 2025 06832.