Scolaro's Concrete Construction Pty Ltd v Schiavello Commercial Interiors (Vic) Pty Ltd [1995] FCA 861

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VG No 3260 of 1995

IN THE MATTER OF SCOLARO'S CONCRETE CONSTRUCTION PTY LTD SCOLARO'S CONCRETE CONSTRUCTION PTY LTD Applicant -and- SCHIAVELLO COMMERCIAL INTERIORS (VIC) PTY LTD Respondent

Coram: Olney J Place: Melbourne Date: 27 October 1995

MINUTE OF ORDER THE COURT ORDERS THAT the application be dismissed with costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VG No 3260 of 1995

IN THE MATTER OF SCOLARO'S CONCRETE CONSTRUCTION PTY LTD SCOLARO'S CONCRETE CONSTRUCTION PTY LTD Applicant -and- SCHIAVELLO COMMERCIAL INTERIORS (VIC) PTY LTD Respondent

Coram: Olney J Place: Melbourne Date: 27 October 1995 REASONS FOR JUDGMENT The applicant has made application under s 459G(1) of the Corporations Law for an order setting aside a statutory demand dated 28 April 1995 (the demand) served on the applicant by the respondent. The demand required the payment of $36,352.50 in respect of a debt described in the demand as "Goods and services provided". It is common cause that the application was made within the time limited by s 459G(2). No technical issues have been raised. The ground upon which the order is sought is that there is (as the applicant says) a genuine dispute as to the existence of the debt to which the demand relates. I propose to first canvass those aspects of the evidence that appear to me to be most relevant to the question in issue.

As all of the evidence before the Court has been adduced on affidavit and as none of the deponents was called for cross-examination, it is not possible to make any determination as to the credit of any individual witness or to resolve any conflict in the evidence except to the extent that facts which are undisputed are capable of sustaining relevant inferences. In his affidavit sworn on 18 May 1995 filed in support of the application Orazio Scolaro (who is also known as George Scolaro and is referred to as such in some of the evidence), (Scolaro), a director of the applicant, expresses his belief that the demand relates to goods and services provided by the respondent in respect of the construction of a building for the Department of Social Services at the corner of Duncans Road and Synnot Street, Werribee (the DSS building) and has exhibited a bundle of statements and an invoice from the respondent addressed to Alert Constructions for the amount claimed in the demand. He says that Alert Constructions was a business name used by a company known as De Pellegrin Pty Ltd ACN 004 479 163 (De Pellegrin) in respect of which company a receiver and manager and a liquidator have been appointed. The statements and invoice are all addressed to "Alert Constructions C/o Scolaros Concrete Const". Other evidence establishes that on 10 May 1994 a receiver and manager of De Pellegrin was appointed and that on 25 May 1994 a liquidator was appointed in a creditors' voluntary winding up.