FEDERAL COURT OF AUSTRALIA

Aussie Hoist Property Pty Ltd v Mulqueen [2018] FCA 1493

ORDERS

THE COURT ORDERS THAT:

1.    The originating process filed on 21 March 2018 be dismissed.

2.    The plaintiff pay the defendant’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Griffiths J:

1    By an originating application dated 20 March 2018, the plaintiff seeks to have set aside under s 459G of the Corporations Act 2001 (Cth) (the Act) a statutory demand dated 1 March 2018 on the basis that there is a genuine dispute under s 459H about the debt which is the subject of the statutory demand.

Summary of background matters

2    The statutory demand relates to a loan from the defendant to the plaintiff. The plaintiff is the trustee of the Aussie Hoist (MLB) Property Unit Trust (the Property Trust). The statutory demand identifies a debt in the amount of $301,052.40 which is alleged to be owing to the defendant. Ms Mulqueen is the trustee of The Mulqueen Family Trust. Ms Mulqueen affirmed a brief affidavit dated 12 April 2018 in support of the statutory demand.

3    The central issue is whether there is a genuine dispute regarding the terms of the loan and, in particular, whether or not it is repayable on call. Before addressing this issue, it is desirable to summarise some background matters which reveal the complexities surrounding the commercial relationship of the parties. I shall refer to the plaintiff as AHP and to the defendant as the Mulqueen Family Trust.

4    Ms Mulqueen consented to become the trustee of the Mulqueen Family Trust on 16 June 2009. AHP was incorporated on 9 June 2017 and the Property Trust was established by way of a trust deed, which nominated AHP as its corporate trustee (Trust Deed). Upon incorporation of AHP and the establishment of the Property Trust, the following matters occurred:

(a)    the Mulqueen Family Trust became a 50 percent shareholder of AHP;

(b)    three persons (Mr Craig Winwood-Smith, Mr David Abreu and Mr Michael Mulqueen (Ms Mulqueen’s husband)) were appointed directors of AHP; and

(c)    the Mulqueen Family Trust was allotted 50 of the 100 units as an Initial Unitholder under the terms of the Trust Deed.

5    The primary purpose of the incorporation and establishment of AHP and the Property Trust was to enable the purchase of a property in Victoria (the Victorian Property) and for a related company, Aussie Lift & Shift (MLB) Pty Limited (ALSM), to operate its business from the Victorian Property.

6    On or about 8 August 2017, settlement occurred on the purchase of the Victorian Property.

7    The three directors of AHP have a history of co-directorship and shareholding over the past nine years, primarily in respect of businesses that hire and sell personal and materials platforms for use generally in the construction industry.

8    On 10 August 2017, AHP and ALSM executed a commercial property lease for the lease of the Victorian Property. Since that time, there have been several disputes between Mr Mulqueen, Mr Winwood-Smith, ALSM and AHP regarding directorships, unpaid loan accounts and unpaid debts. Many of these issues remain unresolved.

9    On or about 16 January 2018, Mr Mulqueen was made redundant as an employee of ALSM, however, he remains a director of both that company and AHP.

10    As at 28 February 2018, AHP’s balance sheet recorded a loan due to the Mulqueen Family Trust in the amount of $283,023. This is the loan which is the subject of the statutory demand dated 1 March 2018.

11    In mid-March 2018, the two other directors of AHP apart from Mr Mulqueen instructed Shaw McDonald Lawyers (SML) to apply to set aside the statutory demand.

12    The application to set aside the statutory demand was accompanied by an affidavit in support affirmed by Mr Craig Winwood-Smith who, as noted above, is a director of AHP. He annexed an unsigned copy of the Trust Deed but deposed that it was a true and accurate copy of the Deed that was signed by the unit holders and AHP as trustee around May 2017. He deposed that the Trust was established for the purpose of purchasing the Victorian Property and that both the settlement of the Trust and purchase of the Victorian Property was pursuant to an oral agreement between him, Mr Abreu and Mr Mulqueen made in or about May 2017. He stated that it was a term of the agreement that the purchase of the Victorian Property would be funded by loans to AHP from each of the three directors’ respective family trusts. He said that the defendant loaned the plaintiff 50 percent of the purchase price of the Victorian Property, that his family trust loaned 35 percent of the purchase price and Mr Abreu’s family trust loaned 15 percent.

13    Mr Winwood-Smith gave evidence of conversations between the three directors in May and June 2017, which he said were to the effect that all three directors acknowledged that AHP would have no capacity to repay the loans until the Victorian Property had been improved and its value increased. He also claimed that they agreed that, once this occurred, AHP would apply for refinance and that this money would be used to repay the loans from the three respective family trusts. The defendant challenged the admissibility of this evidence.

14    Mr Winwood-Smith gave evidence of the calculation of rent payable by ALSM in respect of the Victorian Property and to improvements which were carried out on that land in June 2017, which were completed in February 2018. Mr Winwood-Smith attached correspondence in March 2018 between himself and the National Australia Bank regarding refinancing of the Victorian Property with that bank. He deposed that, as at 20 March 2018, the refinancing had not been finalised. He added that, once it was, the three loans made by the directors’ family trusts would be repaid.

15    By an interlocutory application dated 13 April 2018, the Mulqueen Family Trust sought orders which would have prevented SML from acting for AHP and also sought an order that SML provide access to that firm’s files relating to AHP. That interlocutory application was dismissed by consent on 24 July 2018.

The parties’ submissions summarised

(a) The plaintiff

16    AHP submitted that the central issue was whether the loan to it was repayable on call or on the terms allegedly discussed at the time of its making, namely upon refinancing the Victorian Property which was purchased and renovated with the parties’ loan funds, including the loan from the Mulqueen Family Trust. The plaintiff submitted that the loan was made for a specific purpose which has not yet eventuated and that the Mulqueen Family Trust is in no different position to the other lenders. It further submitted that the Mulqueen Family Trust sought to change the terms of the loan because of a falling out between Mr Mulqueen and the other directors of AHP.

(i) Findings of fact sought by the plaintiff

17    AHP invited the Court to make the following findings of fact, based upon two affidavits by Mr Winwood-Smith (20 March 2018 and 14 August 2018) and an affidavit by Mr  Abreu (3 May 2018). AHP also relied upon parts of three affidavits read by the defendant, an affidavit of Ms Mulqueen (12 April 2018) an affidavit by her husband, Mr Mulqueen (12 April 2018) and an affidavit by the defendant’s solicitor, Ms McIntyre (13 April 2018).

18    AHP is associated with ALSM and Aussie Lift & Shift (Syd) Pty Ltd (ALSS), all of whom have the same interests behind them.

19    The purpose of the incorporation of AHP was to permit it to acquire the Victorian Property and lease it to ALSM.

20    The defendant:

(a)    holds a 50% interest in AHP; and

(b)    lent $301,052.40 to AHP to fund (in part) the Victorian Property purchase (the Relevant Loan).

21    The other shareholders and lenders were:

(a)    David Peter Abreu and Tania Santos Abreu as trustees for the D Abreu Family Trust, which holds 15% of the units and loaned $98,457.75 to AHP.

(b)    Craig Robert Winwood-Smith and Belinda Leanne Winwood-Smith as trustees for the CWS Family Trust, which holds 35% of the units and loaned $206,523.45 to AHP.

22    AHP’s contention of the terms of the agreement is the same as a previous transaction taken along similar lines. It claims that there is a pattern of behaviour and prior dealings consistent with AHP’s case here.

23    On 10 August 2017, AHP entered into a commercial lease with ALSM.

24    From August 2017, there were issues between Mr Mulqueen and the other directors of AHP and ALSM.

25    From June 2017 to February 2018, following AHP’s acquisition of the Victorian Property, ALSM and ALSS undertook improvements to the Victorian Property, which concluded in February 2018. The Mulqueens were aware of these improvements and costs.

26    On 16 January 2018, Mr Mulqueen was made redundant from ALSM. AHP submits that this is the sole basis for the Mulqueens now seeking repayment of the Relevant Loan.

(ii) Plaintiff’s submissions

27    AHP submitted that:

(a)    at all relevant times, the defendant has been aware of AHP’s asset position and its income from the commercial lease with ALSM;

(b)    at no time prior to 1 March 2018, including from August 2017 when issues arose with Mr Mulqueen, did the defendant suggest that a term of the loan was that it was repayable on demand; and

(c)    a term of the loans, including the Relevant Loan, was that they were repayable once the Victorian Property had been improved and AHP could refinance the Victorian Property based on its improved value, relying on parts of Mr Winwood-Smith’s first affidavit and parts of Mr Abreu’s affidavit.

28    AHP submitted that, on 20 July 2017, Mr Mulqueen emailed the other directors of AHP and confirmed that refinancing in the amount of $710,000 to repay the three relevant loans, including that to the defendant, “sound[ed] good” to him. The proper construction of this email is disputed by the defendant.

29    AHP urged the Court to find that all three loans were not to be recalled until AHP could afford to do so by refinance. It contended that this was supported by the following matters:

(a)    the evidence makes clear this was the case: see [27(c)] and [28] above;

(b)    AHP is a special purpose vehicle which was set up to acquire the Victorian Property – it has no other assets from which it could ever repay the loans (including the Relevant Loan) until a revaluation occurred;

(c)    the Mulqueens allowed the structure to be entered into, thereby representing that they would not frustrate the structure by contrary conduct, including the premature demanding of repayment;

(d)    Mr Mulqueen was working on the improvements to the Victorian Property, for which ALSM was responsible, which is consistent with the agreement reached;

(e)    it is consistent with how the ALSS operation was conducted – such that it forms a pattern of behaviour;

(f)    at no time prior to Mr Mulqueen being made redundant did he raise any issue with the Relevant Loan being on terms other than as contended for by AHP;

(g)    consistent with AHP’s contention as to the terms of repayment, steps were taken to refinance the Victorian Property shortly after improvements were completed; and

(h)    Ms Mulqueen concedes that the basis for demanding repayment was a falling out between her husband and the other directors of AHP.

30    AHP submitted that, even if the terms of the Relevant Loan were not clear from the evidence or the conduct of the parties objectively determined, legal principle did not support the defendant’s claim that, if there are no agreed terms for repayment or those terms are vague and uncertain, the loan is repayable on demand. AHP cited Head v Kelk (1961) 63 SR (NSW) 340 at 344 per Herron J (with whom McClemens and Brereton JJ agreed) in support of its contention that, where the surrounding circumstances explain the reason for the term which is otherwise challenged by one party, the Courts will uphold the parties’ agreement. It emphasised that Mr Mulqueen was a party to communications concerning the refinancing of the Victorian Property and that subsequent communications were admissible as an admission against the defendant’s interests.

31    AHP further submitted that the defendant was prevented by estoppel and acquiescence in circumstances where:

(a)    the defendant was aware of the steps taken and the money spent on improving the Victorian Property and Mr Mulqueen was responsible for those works; and

(b)    AHP and ALSM have changed their position based on representations which were made as to AHP’s ability to acquire the Victorian Property and enter into the commercial lease, which change of position is to their detriment.

32    Finally, AHP relied upon cl 19.3 of the Trust Deed:

19.3    No right of action if Unit Holders consent to investment

If all of the Unit Holders consent in writing to the Trustee acquiring an investment as part of the Trust Fund, the Unit Holders are to be taken as having waived all rights they may have against the Trustee at law or under this Deed with respect to the Trustee’s acquisition of the investment. This sub-clause applies whether the consent of the Unit Holders was obtained on, prior to or after the date the investment was acquired by the Trustee.

33    AHP submitted that the acquisition of the Victorian Property was consented to by all unit holders and the acquisition was financed by the three relevant loans in circumstances where the investment could not be retained if the Relevant Loan were prematurely recalled. It submitted that cl 19.3 prevented the defendant from enforcing any rights relating to the Relevant Loan because the loan is inextricably linked to AHP’s acquisition of the Victorian Property.

(b) The defendant

34    The defendant’s outline of submissions may be summarised as follows.

35    The defendant submitted that there was no dispute regarding the existence of the debt or its amount, that the plaintiff and the defendant are parties to the Relevant Loan and that there is no written document which records its terms.

36    Its three primary submissions are as follows.

37    First, there is no evidence to support any claim that Ms Mulqueen was a party to any conversation with AHP in respect of the alleged terms, yet she is essential because she is the trustee of the Mulqueen Family Trust.

38    Secondly, the plaintiff and the defendant were the only parties who could have agreed to the alleged terms, yet the plaintiff’s evidence indicates that the alleged terms were agreed only between AHP’s directors (i.e. Mr Winwood-Smith, Mr Abreu and Mr Mulqueen) and not Ms Mulqueen.

39    Thirdly, the evidence is insufficient to satisfy the Court that a genuine dispute exists because the alleged terms are so uncertain that any agreement would be void for uncertainty.

40    The defendant submitted that a distinction had to be drawn between evidence which is sufficient to support the jurisdictional requirements which identify the grounds upon which AHP relies in seeking to have the statutory demand set aside, and the evidence which is needed to establish a genuine dispute, citing Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd (in liq) [2004] NSWSC 527; 185 FLR 130 (Tokich) at [25] per White J. It submitted that AHP had not pointed to sufficient admissible evidence to establish that it had a plausible case which required investigation as to the alleged express term of the oral loan agreement concerning repayment.

41    If, contrary to that submission, the Court was satisfied that the jurisdiction to set aside the statutory demand was invoked, the defendant submitted that AHP’s evidence is either inadmissible or insufficient to support a finding that there is a genuine dispute.

42    The defendant submitted that AHP’s reliance on estoppel and acquiescence was irrelevant and that cl 19.3 of the Trust Deed did not preclude the defendant from enforcing its rights in relation to the Relevant Loan.

Consideration and determination

43    The parties were in substantial agreement as to the relevant legal principles. Their disagreement related to the application of those principles to the particular facts and circumstances here.

44    It is convenient first to address the parties’ objections to evidence, focusing in particular on paragraphs which directly relate to the alleged express term of the oral loan agreement. The parties were agreed that their respective objections could be determined on the basis that the current hearing is an interlocutory proceeding.

(a) Rulings on evidence

45    The defendant objected to various paragraphs in inter alia Mr Winwood-Smith’s two affidavits and the affidavit of Mr Abreu. Those objections were based upon the relevant paragraphs being opinion/conclusion/hearsay. The defendant submitted that if the paragraphs were admitted for the purposes of establishing the Court’s jurisdiction to hear the originating application, the Court should make a ruling under s 135 of the Evidence Act 1995 (Cth) (Evidence Act) that the paragraphs are not admissible for the purpose of establishing the terms of the loan alleged by the plaintiff.

46    As noted above, there was no dispute between the parties as to the existence of the debt, its amount, that the parties to it are the plaintiff and the defendant and that there is no written document recording the alleged terms. The issue is whether there is a genuine dispute about the alleged term relating to repayment.

47    In Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund [1996] FCA 822; 70 FCR 452 (Graywinter), Sundberg J summarised the following minimum requirements that had to be satisfied by the supporting affidavit required under s 459G(3)(a) of the Act:

(a)    The affidavit must state material facts which show that there is a genuine dispute.

(b)    The affidavit need not include, in admissible form, all the evidence that supports the contention of a genuine dispute.

(c)    Neither a mere assertion that there is a genuine dispute nor a bare claim that the debt is disputed will suffice.

48    His Honour also held that if the supporting affidavit did not meet the minimum requirements, the Court did not have jurisdiction and this could not be overcome by filing a supplementary affidavit after the 21 day period had expired. Justice Sundberg held, however, that where the minimum requirements had been met, material relied upon in the supporting affidavit could be supplemented by affidavits filed after the 21 day period had expired (but they cannot raise a new ground – see [61] below).

49    In Tokich, White J held at [21] that evidence which may be inadmissible as hearsay or opinion to establish a fact relevant to indebtedness would not on that account be inadmissible to establish a fact relevant to whether there was a genuine dispute about indebtedness (citing McClelland J in Geoffrey W Hill & Associates v King (1992) 27 NSWLR 228 at 230).

50    Justice White added at [22] that, although a mere assertion that a debt is denied is insufficient, evidence in the form of conclusions as to primary facts which would be inadmissible as proof of the relevant facts under either ss 76 or 135 of the Evidence Act may be admissible as evidence that there is a dispute as to the existence or amount of the debt, and as to whether that dispute is genuine (citing Young J in John Holland Construction & Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253). Importantly, at [25], White J acknowledged that whether evidence is sufficient to establish a genuine dispute is a different question from whether the evidence is admissible for that purpose.

51    The distinction drawn by White J in Tokich was approved by the Court of Appeal in Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd [2013] NSWCA 344; 85 NSWLR 601. Their Honours stated at [37] that in a proceeding for the purposes of setting aside a statutory demand, the hearsay rule will not apply with the same strictness as is required in a fully contested hearing of a principal dispute and hearsay may be admissible provided that evidence of the source of the hearsay is adduced.

52    In my view, a distinction should be drawn between evidence which is the deponent’s subjective belief as to the existence and terms of any loan agreement (which is inadmissible), as opposed to evidence relating to the genuineness of AHP’s belief that there existed a plausible contention requiring investigation. The parties were agreed that the primary paragraphs affected by this issue are [18]-[21] of Mr Winwood-Smith’s first affidavit and [32] of Mr Abreu’s affidavit. Accordingly, while the paragraphs objected to are admissible for the latter purpose, I accept the defendant’s submission that they are inadmissible to establish the alleged express term regarding repayment of the loan (see Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5 at [25] (Central City) per Murphy JA (with whom Buss JA agreed)). A further difficulty relating to these paragraphs is their form, which affects significantly the weight to be given to them. Instead of setting out the deponents’ best recollection of what was said by the persons concerned and leaving it to the Court to assess whether that evidence establishes an agreement, both deponents simply stated their subjective conclusions on the matter.

53    As will shortly emerge, Mr Bennett (who appeared for AHP) submitted that, in any event, there was sufficient objective evidence for the purposes of the current proceeding to support AHP’s case concerning the alleged loan repayment term.

(b) Some relevant principles

54    AHP has the burden of satisfying the Court that one of the statutory bases for setting aside a statutory demand has been established. AHP confirmed in oral address that it placed no reliance on s 459J. The defendant did not contend that, given the nature of the contest between the parties, s 459H had no application.

55    If the Court is satisfied that there is a genuine dispute about the existence or amount of the debt to which the demand relates, the substantiated amount of the demand must be calculated in accordance with the formula in s 459H(2)-(5) of the Act.

56    As to the meaning of the phrase “genuine dispute”, I respectfully adopt McKerracher J’s helpful summary of the relevant principles in Citation Resources Ltd v IBT Holdings Pty Ltd [2016] FCA 1265 at [17]:

17.    In short then:

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

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

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

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

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

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

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

57    The following statement of general principles by the Full Court in First Equilibrium Pty Limited v Bluestone Property Services Pty Limited (in liq) [2013] FCAFC 108 at [21] (per Gordon, Griffiths and Farrell JJ) should also be noted:

1.    The phrase “a genuine dispute” uses ordinary English words and its meaning in any particular set of circumstances must be a question of fact: Troutfarms Australia Pty Ltd v Perpetual Nominees Ltd [2013] VSCA 176 at [5].

2.    There must be some evidence to support the factual allegations that go to make up the claim: Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 at [18].

3.    It is insufficient for the facts to be asserted in the supporting affidavit or by annexing a copy of the statement of claim: Endeavour Film Management Pty Ltd v Fox Studios Australia Pty Ltd [2003] NSWSC 831 at [13].

4.    The relevant evidence does not need to be admissible at a final hearing on the merits of the case (Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 at 460) but the evidence needs to be sufficient to satisfy the Court that the claim has a proper factual basis: John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253.

5.    For there to be a genuine dispute, there must be a “plausible contention requiring investigation”. It raises the same sort of considerations as the “serious question to be tried” criterion applicable to interlocutory injunctions. At this stage, the Court is not called on to determine the merits of or to resolve the dispute: Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 787.

6.    The threshold is not high or demanding: Kirrak Pty Ltd v Compass Scaffolding & Plant Hire Pty Ltd [2007] NSWSC 1002 at [3]; Roadships Logistics Ltd v Tree (as trustee for the Tree Superannuation Fund) (2007) 64 ACSR 671 at [24]. However, the claim must have some merit and be genuine. That requirement has been described variously as the claim must be “real and not spurious”, the claim must have a “real chance of success”, there must be a serious question to be tried and, in some cases, it has been said that there is a requirement of good faith: see Abadeen at [33].

7.    A useful analogy to the burden on the party asserting the claim is that of an alleged debtor resisting an application for summary judgment. If the Court sees any factor that, on rational grounds, indicates an arguable case, it must find that a genuine dispute exists even where any case apparently available to be advanced to the contrary seems stronger: see Product People (International) Pty Ltd v Box Seat Company Pty Ltd (in liquidation) [2013] FCA 277 at [25].

58    It is desirable to set out in full the observations of McClelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 (referred to in [57(5)]) above:

This does not mean that the court must accept uncritically as giving rise to a genuine dispute, 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 not be” not having “sufficient prima facie plausibility to merit further investigation as to [its] truth “ (cf Eng Mee Yong v Letchumanan [1980] AC 331 at 341), or “a patently feeble legal argument or an assertion of facts unsupported by evidence”: cf South Australia v Wall (1980) 24 SASR 189 at 194.

But it does mean that, except in such an extreme case, a court required to determine whether there is a genuine dispute should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on as giving rise to the dispute. There is a clear difference between, on the one hand, determining whether there is a genuine dispute and, on the other hand, determining the merits of, or resolving such a dispute.

59    Justice Lockhart summarised the relevant principles in Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 at 39:

The notion of a ‘genuine dispute’ … suggests to me that the court must be satisfied that there is a dispute that is not plainly vexatious or frivolous. It must be satisfied that there is a claim that may have some substance. On the other hand the court must be careful, because if all an applicant has to do is to assert both a claim and some basis for it, without more, it would mean in almost every case that the court would set aside statutory demands where application is made to that effect. Plainly that is not what the legislature intended by introducing this new regime.

60    In determining this application to set aside a statutory demand, it is important not to lose sight of the fact that the Court is not being asked to determine the ultimate question regarding the existence or otherwise of the alleged express term relating to repayment of the loan. As Brooking and Charles JJA stated in Spacorp Australia Pty Ltd v Myers Stores Ltd [2001] VSCA 89; 19 ACLC 1270 at [3]-[4]:

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

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

61    Finally, it should be noted that a party seeking to set aside a statutory demand is not entitled to rely on any ground which was not raised in the affidavit filed within the 21 day limit specified in s 459G(3) (see MNWA Pty Ltd v Deputy Commissioner of Taxation [2016] FCAFC 154; 250 FCR 381 at [93] per Rares J).

(c) Has the plaintiff established that there is a genuine dispute concerning the alleged term concerning repayment of the loan?

62    It is convenient to first address the plaintiff’s reliance on Head v Kelk. In that case the plaintiff claimed the repayment of a loan. The defendant asserted that the loan contained terms and conditions as to repayment to the effect that the defendant would be bound to repay when he was financially able to do so and not before. On a demurrer, the plaintiff claimed that the defence must fail because the alleged term of the agreement concerning repayment was so vague and uncertain as to be unenforceable. In overruling the demurrer, the Court said at 344 (footnotes omitted):

If the court comes to the conclusion that parties intended to make a contract, it will, if possible, give effect to their intention no matter what difficulties of construction arise…Thus contracts which contained terms that the price was to be ‘reasonable’, to ‘pay handsomely’ for services, or to pay a commission on ‘the sum available for distribution’ or a percentage of ‘the profits’ of a business, in each case for services rendered, have been held to be enforceable according to the maxim id certum est quod certum reddi potest. … Thus an agreement based on consideration to waive interest on a loan ‘until such time as the company is in the position to pay the interest’ was held to be valid. In Ledingham v Bermejo Estancia Co Ltd, Atkinson J construed such an agreement as meaning that payment of interest should be postponed until the company was in a position to pay the interest out of income so long as it carried on. By reference to a further term, as soon as it ceased business the agreement terminated and the whole of the interest became due but by force of the agreement as so construed the interest did not become due and payable until the condition of ability to pay was fulfiled [sic]. It was also held that the agreement was a binding contract since the offer contemplated legal relations.

63    There is a helpful analysis of the principle in Head v Kelk and other cases by the Victorian Court of Appeal in GoConnect Ltd v Sino Strategic International Ltd (in liq) [2016] VSCA 315 (GoConnect) at [47]-[54] per Santamaria and Kyrou JJA and Elliott AJA.

64    The caselaw includes Argyll Park Thoroughbreds Pty Ltd v Glen Pacific Pty Ltd (rec and mgr apptd) [1993] FCA 464; 11 ACSR 1 (Argyll Park) per Drummond J. There, a receiver of the defendant company demanded repayment of a loan that he said was owing to it. Directors of the debtor company claimed that loans made to it by the defendant company were only repayable when the borrower’s directors believed that the borrower was in a position to repay. Justice Drummond held that this was not an answer to the demand for the repayment of the loan. At 3-4, Drummond J had the following to say on the distinction between Head v Kelk and the decision of Sholl J in Bailes v Modern Amusements Pty Ltd [1964] VR 436:

It may be that the true distinction between Head v Kelk and Bailes is that if the question whether the agreed time for repayment has arisen can be determined objectively, then the term will be valid; but, if the agreed time for repayment operates in a subjective way by leaving it to the borrower to decide for himself when, if ever, he will repay, the term will be void as illusory: see Bailes at 440 and cf Godecke v Kirwin (1973) 129 CLR 629 at 645-6.

65    In Argyll Park at 4, Drummond J added:

The law is that where there is an agreement for a loan and the time for repayment is not fixed by the agreement, any money advanced will be repayable on demand: Bailes at 441 or perhaps, more accurately, without any previous demand. See Chitty on Contracts, 26th ed, at para 3582. It follows that the main ground relied on in support of the application for the injunction is without substance.

66    A similar issue arose before Kenny J in Universal Greening Pty Ltd v Sabine [1999] FCA 529; 17 ACLC 880 (Universal Greening). There, the defendant demanded repayment of three separate loans. While admitting the loans, the borrower submitted that the moneys were advanced on the understanding that they would be repaid by it only when it could afford to do so. Justice Kenny applied Argyll Park and held the moneys were repayable on demand. Her Honour said at [22]:

22.    If there was an agreement such as Universal Greening claims, between it and the respondents, that was intended to have contractual effect and under which the moneys demanded were lent, then that agreement was void for uncertainty. A term to the effect that none of the loans were repayable until Universal Greening could afford to make repayment leaves it to the borrower to decide when, if at all, the occasion for repayment might arise. As Sholl J observed in Bailes at 438, a term of this kind would “prompt in the mind of the reader a whole series of questions as to what the parties intended”. First, who was to determine when the company could afford to repay? Secondly, what is meant by “afford to make repayment”. To adapt the observations of Sholl J in Bailes at 440:

Does it meant out of capital, or out of income only? Or out of gross profits? Or out of net profits? Would it be inconsistent with the intention of the parties if the board determined that the company was not in a position to pay because to do so would inhibit plans to expand its operations?

Finally, how long was the stipulation to operate? Was it was to extend beyond liquidation, with the result that the loans become irrecoverable?

67    Justice Kenny concluded that the loan itself remained, as did the promise to repay and that any money advanced was repayable on demand in the event that an arrangement of the kind for which Universal Greening contended was made.

68    It is also relevant to have regard to Central City. The trustee of a trust issued a statutory demand claiming repayment of a loan to the borrowing company. In seeking to have the statutory demand set aside, a director of the borrowing company said that there was an implied term that the money in dispute was to be repaid upon the realisation of the entire project or through the sale of the trustee’s shares. The director gave detailed evidence as to the background facts leading to the creation of the alleged debt. The director also gave evidence that the company had not generated revenue in excess of expenses in order to enable repayment of the alleged debt, as well as evidence of his belief or understanding as to the terms for the repayment of the money in dispute.

69    On an appeal to the Court of Appeal from a decision of the Master who dismissed the application to set aside the statutory demand, the borrowing company claimed that there was sufficient evidence to raise a genuine dispute as to whether there was an implied term of the contract to the effect that the loan was not repayable on demand, but was repayable out of cash flow following completion of the project to which the loan related. The appellant also submitted that the loan was on similar terms to the two loans which had been provided by other shareholders of the borrowing company and that there were terms in each of those loan agreements (which apparently were in writing) to the effect that payments would be made rateably out of cash flow from the management of the project.

70    Murphy JA (with whom Buss JA agreed) described the common law principle where no time for repayment is specified in an agreement in the following terms at [36]-[38]:

36    At common law, a loan made where no time for repayment is specified, or where the loan is stated to be payable 'on demand', creates an immediate debt by which the money is repayable immediately without the creditor first making a demand for payment: Norton v Ellam (1837) 2 M & W 461; (1837) 150 ER 839; Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560, 566; Stage Club Ltd v Millers Hotels Pty Ltd [1981] HCA 71; (1981) 150 CLR 535, 569 (Brennan J); Ogilvie v Adams [1981] VR 1041, 1043, 1052 - 1059; Haller v Ayre [2005] QCA 224 [26] - [32]; MacKenzie v Albany Finance Ltd [2003] WASC 100 [243] - [245] (appeal allowed on other grounds MacKenzie v Albany Finance Ltd [2004] WASCA 301); Argyll Park Thoroughbreds Pty Ltd v Glen Pacific Pty Ltd (receiver and manager appointed) (1993) 11 ACSR 1, 4; Chitty on Contracts (30th ed, vol 2, 2008) 38-247.

37    Also at common law, a loan payable 'on demand' in the above sense is to be distinguished from a loan only repayable on condition that a demand is first made. In the latter case, but not the former, the making of the demand is a condition precedent to liability to repay, and the cause of action does not arise until the demand has been made: MacKenzie v Albany [245]; see also, D & J Fowler (Aust) Ltd v Bank of New South Wales (1982) 2 NSWLR 879, 882 - 883, 886; Murphy v Lawrence [1960] NZLR 772, 774 - 775.

38    Where the parties do not expressly fix a time for repayment, or agree that the repayment is to be conditional upon the making of a demand, implications as to such matters may be made or inferred in appropriate circumstances: Chitty par 38-247.

71    The appeal was allowed. The Court held that there was a plausible contention which required investigation that there was a loan agreement with an implied term as alleged having regard to the following factors in that case:

(a)    the trustee and the borrowing company were entities associated with the same family;

(b)    there was no written contract and the arrangements appeared to be of an informal nature;

(c)    the implied term was, however, consistent with the terms of other previous written agreements;

(d)    the trustee became a shareholder of the borrowing company; and

(e)    shareholders’ contributions to the company took the form of loan, rather than capital.

72    The Court held that the implied term concerning repayment was not too uncertain and Argyll Park was said to be distinguishable.

73    As noted above, in the present proceeding, the parties do not dispute the existence of an oral loan agreement, nor that they are the parties to the Relevant Loan. The contest is whether the plaintiff has established that it has a plausible contention which requires investigation concerning the existence of the alleged express term concerning repayment of the loan.

74    It is insufficient that AHP merely asserts the existence of the alleged term. It must point to sufficient admissible evidence to provide some support for the claim and that a full investigation is warranted, while recognising that the bar is relatively low in a proceeding of this kind.

75    Even though the evidence in the proceeding is unsatisfactory in several respects, I am prepared to make the findings of fact as sought by the plaintiff in [18] to [26] above, save for the second sentence in [26]. But those findings do not indicate that AHP has a plausible contention which requires investigation in relation to the alleged term concerning repayment of the loan.

76    The objective documentary evidence relating to the central issue, as relied upon by AHP, is notably limited and is unsupportive of its case. It may be summarised as follows. First, by letter dated 19 February 2018, the defendant’s solicitor wrote to Mr Winwood-Smith stating that her firm acted for “Mr Michael Mulqueen in his own capacity and in his capacity as trustee of the Mulqueen Family Trust”. The latter statement was plainly in error as Ms Mulqueen is the sole trustee. Reference was also made in the letter to the Mulqueen Family Trust having loaned AHP the sum of $301,052.40 to purchase the Victorian Property. The solicitor demanded repayment of that sum.

77    Mr Winwood-Smith responded to the letter in an email dated 19 February 2018. Relevantly and significantly, he said (without alteration):

… 

2.    Mulqueen Trust Loan, there is no agreement between directors or shareholders for re-paying this loan.

In fact, on both accounts, no discussion has ever been had about an appropriate course of action to re-pay Mr Mulqueen or other lenders, we suggest your client call a Directors meeting to discuss these options, so as, to prevent an assumption that a plan to repay loans can’t be made. Since no discussion has been had, enforcement action would be entirely pre-mature.

78    In his affidavit affirmed on 14 August 2018, Mr Winwood-Smith purported to explain his intended meaning of these statements. He said that he intended the email to communicate that there was no agreement to repay the loan from the Mulqueen Family Trust nor repay any other lenders, prior to refinancing the Victorian Property. This evidence is inadmissible. The email speaks for itself. It is inconsistent with the case which AHP now puts.

79    Secondly, AHP relied upon an email exchange on 20 July 2017 between Mr Winwood-Smith and Mr Mulqueen. Mr Winwood-Smith sent an email headed “RE: Rental Spreadsheet”, which had the following content (without alteration):

Gents, I think there is two ways to look at this.

1.    Averaging what the market pays in the same Area.

2.    What a typical property investor would make above costs.

AVERGE MARKET RATES – I think there is enough evidence form the local properties and the (Hardstand rate @$40/m, and underroof at $75/m) to give a range from $65+K to $85+K per annum plus outgoings.

PROPERTY INVESTOR – At 710K at 5.8% is $5,020 to cover PI Monthly, total repayments at 5.8% on a 20 year loan are $60,240 per year. Land tax $2,000. An investor would want to make at least 10% profit so we would charge $68,460 per annum plus outgoings.

Dave and I have discussed what we think it would be a fair approach to start at $68,460 per annum + Outgoings. (To help ALSM cash flow)

But we would need to have a CPI increase of %5 per annum.

80    Shortly thereafter, Mr Mulqueen sent a reply email in which he stated:

Sounds good Craig if the loan repayment of $710k is inclusive of a loan we will have to take out for the buildings?

81    AHP submitted that this email exchange related to refinancing the loans used to acquire the Victorian Property and that Mr Mulqueen was content to proceed as suggested by Mr Winwood-Smith. I reject that submission. Read fairly and objectively, the correspondence appears not to relate to the issue of refinancing but rather to the separate issue of an appropriate rent to charge ALSM for leasing the Victorian Property. It does not assist AHP’s case.

82    Thirdly, AHP invited the Court to infer the existence of the alleged express term because AHP is a special purpose vehicle and the parties would not have entered into arrangements which would enable one of the lenders to recall the loan before the project was completed. This submission may have some force if it was supported by other admissible evidence, but that is not the case here.

83    Fourthly, AHP relied upon cl 19.3 of the Trust Deed, the terms of which are set out in [32] above. I accept the submission of Mr Heath (who appeared for the defendant) that, on its face, this provision has no application to the circumstances here. Rather, it applies to prevent an individual unit holder from suing the trustee for having entered into a particular investment.

84    Fifthly, AHP contended that the alleged express term regarding repayment was consistent with the terms of previous transactions involving the directors of AHP. The evidence concerning those previous transactions was, again, very limited and unpersuasive. Mr Bennett pointed to certain paragraphs in Mr Abreu’s affidavit dated 3 May 2018. Mr Abreu gave evidence of a trust which was created to purchase a property in Sydney in or around 2013, from which ALSS operates its business of providing commercial hoisting and lifting goods and services. Mr Abreu explained that the purchase was partly funded by loans made to the trust from his family trust, Mr Winwood-Smith’s family trust and the family trust of a previous director of ALSS. He said that these loans were repaid “about two years or so years after they were made and once ALSS was in a financial position to be able to make the repayments”.

85    I fail to see how this evidence assists AHP. There is no evidence that either Mr or Ms Mulqueen were involved in those earlier transactions. That evidence provides no support for AHP’s claim in the current proceeding.

86    Sixthly, the affidavit evidence which is referred to in [52] above provides an insufficient evidentiary basis to find that AHP has a plausible contention which requires investigation. The deficiencies in the form of that evidence are such that it attracts little if any weight. Moreover, it is unsupported by any objective documentary evidence and, indeed, it is contrary to some such evidence (see [77]-[78] above). There is scant, if any, evidence to support AHP’s claim concerning the alleged express term.

87    I do not consider that there is a genuine dispute arising from AHP’s claim that Mr Mulqueen may have been acting as Ms Mulqueen’s agent. The parties were agreed that the Mulqueen Family Trust was a party to the relevant loan, notwithstanding that there was some evidence to suggest that Mr Mulqueen was the party. In any event, even if there was an issue to be explored as to Mr Mulqueen’s possible agency, that does not strengthen AHP’s claim relating to the alleged express term concerning repayment of the loan.

88    Finally, the evidence adduced by AHP falls well short of providing even an arguable basis for its claims relating to estoppel and acquiescence. As Mr Heath pointed out, AHP has had ample opportunity to provide evidence of reliance and detriment, but has failed to do so. AHP’s contentions concerning these matters are unsupported by sufficient evidence.

Conclusion

89    For these reasons, I am not satisfied that AHP has discharged its burden of demonstrating that there is a genuine dispute. Mr Bennett acknowledged that, if there was no repayment term as contended for by AHP, the loan was repayable on the giving of reasonable notice.

90    The interlocutory application will be dismissed. The plaintiff must pay the defendant’s costs, as agreed or assessed.

Associate:

Dated:    4 October 2018