Victorian WorkCover Authority v Barroaghan Pty Ltd [2001] VSC 413

Victorian WorkCover Authority v Barroaghan Pty Ltd [2001] VSC 413 - VSC 2001 case summary — Zoe

[16]

The present summons and application by the company was first returnable on 12 October 2001. It was adjourned by consent for one week until 19 October 2001. On the return date Mr M. Sanger of Counsel appeared for the plaintiff and Mr M. Crennan SC appeared with Mr R. Wilson for the applicant. When the matter was first called over in the Corporations List this day an inquiry was made by the court as to whether there was any affidavit upon which the plaintiff intended to rely. The court was informed that there was none. The court pointed out to Mr Sanger that there were matters deposed to on behalf of the applicant that had not been rebutted or challenged in any way by the plaintiff. The matter was reached immediately after the luncheon adjournment. After counsel for the applicant had commenced to make the application Mr Sanger rose and sought leave to file an affidavit sworn by one Shaun Patrick Power on 19 October 2001 on behalf of the plaintiff. Notwithstanding the late service and filing of the affidavit there was no objection on behalf of the applicant. Leave was granted to file the affidavit of Power. In the affidavit Power deposed that he was a credit team leader of CGU Workers' Compensation (Victoria) Limited, an agent of the plaintiff. Power deposed to the arrangement of service of the subject statutory demand on the defendant and the filing of the application for the winding up of the company. In particular, Power deposed that on the date of the filing of the application for the winding up of the company and the affidavit in support the debt stated in the statutory demand, namely, the sum of $25,207.26, was due and payable by the defendant. Power asserted in the affidavit that the company had not disputed any part of the debt as stated in the statutory demand. He deposed, further, that the penalty in the statutory demand being the sum of $2,043.65 remained due. He deposed, also, that a cheque in the sum of $248.50 was provided by Monaghan to the solicitors for the plaintiff on 16 October 2001 but that the cheque was returned. Otherwise, Power did not rebut the matters deposed to by Monaghan notwithstanding that the plaintiff had been aware of the contents of the first Monaghan affidavit for at least one week. For present purposes I do not accept the evidence of Power with respect to the debt because it contradicted the plaintiff's own notices and statements to the company as exhibited to the affidavit of Monaghan. Significantly, Power did not rebut the critical circumstances described and documents exhibited in the affidavit of Monaghan with respect to the revision of the premium and the advice by the plaintiff to the company that earlier claims should be disregarded. Furthermore, there was no rebuttal of the description of the conversations between Monaghan and an officer of the plaintiff by the name of Power.

[22]

Having considered the affidavits filed on behalf of the applicant, I am satisfied of a number of matters. First, that at the time the statutory demand and the other relevant matters came before the Senior Master on the winding up application there were significant matters that were not disclosed to the court. In my view the assertion of ignorance of the counsel and the solicitors is not sufficient to constitute an explanation as to why matters were not disclosed to the court. It behoved the plaintiff in the circumstances of this matter, given the seriousness of the consequences of the winding up of a corporation, to provide instructions such as to inform the court at the time of the winding up application of the circumstances relating to the revision of the premium that was the subject of the claimed debt. The only explanation forthcoming from the plaintiff was that those representing it on the occasion of the application for the winding up were not aware of the position. The explanation does not absolve the plaintiff of the conduct of the proceeding before the Senior Master. Persons doing certain acts who are employees or agents of a corporation are "an embodiment of the company" and act for the company: see Tesco Supermarkets Limited v Nattrass [1971] UKHL 1; (1972) AC 153, 170-1; Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121. There can be no doubt that at the time the notices relating to the revised premium were sent to the company and at the time the relevant conversations occurred between representatives of the plaintiff and Monaghan persons were acting on behalf of the company and in such a way as to bind the company. It was no satisfactory explanation that the legal representatives of the plaintiff at the time of the winding up application had not been instructed as to the true position. Accepting the matters deposed to by Monaghan, it can be reasonably understood that the plaintiff failed to ensure its appropriate officers and legal representatives were properly informed of matters relevant to the company. In my view, the pursuit of the winding up application in all the circumstances constituted an abuse of process. The appeal should be allowed.

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Judgment (33 paragraphs)

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