Aussie Victoriaplant Hire Pty Ltd v Esanda Finance Corporation Ltd
[2007] VSCA 121212 FLR 56
(Judgment by: Ashley J)
Aussie Victoriaplant Hire Pty Ltd
vEsanda Finance Corporation Ltd
Judges:
Maxwell P
Chernov J
Nettle J
Ashley JNeave J
Subject References:
Corporations
Winding-Up
Insolvency
Statutory Demand
Application to Set Aside Statutory Demand Refused By Master
Appeal to Judge From Master'S Decision
Time for Compliance With Statutory Demand Ex-Tended By Master But Expired Before Hearing of Appeal From Master'S Decision
Whether Power to Extend Time May Be Exercised After Expiry of Time for Compliance
Corporations Act 2001 Ss 70, 459F, 459G.
Precedents
National Legislation
Corporations Act 2001
Decisions of Other Courts At First Instance
Dictum of Another Intermediate Court of Appeal
Whether Decisions Should Be Followed.
Practice and Procedure
Leave to Appeal
Whether Order Dismissing Appeal From Refusal to Set Aside Statutory Demand An 'Order in An Interlocutory Application'
Supreme Court Act 1986 S 17A(4)(B).
Legislative References:
Corporations Act 2001 - 70; 459F; 459G
Supreme Court Act 1986 - 17A(4)(B)
Bankruptcy Act 1966 - 41(6A)
Limitation of Actions Act 1958 - 23A
Supreme Court Act 1970 (NSW) - 101(2)(p)
Bankruptcy Act 1906 - 41(6A)
County Court Act 1958 (Vic) - 74(2D)
Acts Interpretation Act 1901 - The Act
Judgment date: 14 June 2007
Judgment by:
Ashley J
[125] I have had the advantage of reading in draft the reasons for judgment of the other members of the Court. I agree with their Honours that the order made by a judge of the Trial Division on 28 July 2006 was interlocutory in character. For the reasons which follow, all things being equal, I would refuse leave to appeal. But since that would yield the outcome that there was no majority view for any particular set of orders, I will join in orders that leave to appeal be granted, but that the appeal be dismissed.
An interlocutory order
[126] The other members of the Court have concluded, and I agree, that the order made below was interlocutory, and that the observations made by Hayne J in Mibor Investments Pty Ltd v Commonwealth Bank of Australia [169] assist such a conclusion. It is true, as has been observed in authorities which have followed a different path, that the question in that case was whether an application to set aside a statutory demand was an "interlocutory application" for the purposes of rules relating to affidavits. [170] It is true also that Hayne J said that the answer to that question was not to be determined according to whether the order made on the application would be an "interlocutory judgment" within s 14(4)(b) of the Supreme Court Act 1986 (Vic). There might be different answers to those two questions in the one matter. But his Honour then held that the pertinent question was whether the application would determine the rights of the parties. All that the proceeding before him could do was to determine whether the demand could stand or not. There would be no final determination of any right even if the demand stood.
[127] In Border Auto Wreckers (Wodonga) Pty Ltd v Strathdee [171] the Court of Appeal had to consider the meaning of the phrase "judgment or order of the court in an interlocutory application" in s 74(2D) of the County Court Act 1958 (Vic). That subsection, like s 17A(4)(b) of the Supreme Court Act -- the latter of which replaced, in substance, the previous s 14(4) -- was inserted by Act 109 of 1994. The Court determined that the reference to a judgment or order in an interlocutory application, both in s 74(2D) and s 17A(4)(b), was to be read as a reference to an interlocutory judgment or order. It seems to me that there would be less reason, in those circumstances, to differentiate between circumstances leading to a conclusion that an application was interlocutory and circumstances leading to a conclusion that a judgment or order made on such an application was interlocutory.
[128] In the event, I consider that Mibor stands the more clearly for the proposition that an order refusing to set aside a statutory demand is an order falling within s 17A(4)(b). The decision should not be understood as going beyond that situation. In terms, Hayne J did not address the nature of an order setting aside a statutory demand -- although his Honour's formulation of what is, and what is not, determined by an application to set aside a demand might lead to characterization of an order as interlocutory regardless in which form the order was made.
[129] So to understand Mibor enables it to be distinguished from the decisions in A-Pak Plastics Pty Ltd v Merhone Pty Ltd [172] and Asian Century Holdings Inc v Fleuris Pty Ltd , [173] in each of which the statutory demand was set aside at first instance. But it must be acknowledged that the reasoning in A-Pak , in which the lis was characterized as the company's right to have the demand set aside, this being treated as a matter susceptible of a final order, would seem likely to yield a similar conclusion regardless whether the demand was or was not set aside by the impugned order. That was surely the approach of Doyle CJ in Keylink Physical Care Pty Ltd v Ergoline (Aust) Pty Ltd , [174] a case in which the demand was not set aside at first instance.
[130] Upon the issue of principle, the decisions in Mibor and A-Pak may well prove to be irreconcilable; so that, depending upon which analysis is correct, an order should be regarded as interlocutory -- or the converse -- regardless whether a demand is set aside or sustained. Even so, the leading decisions are nominally reconcilable along the lines previously indicated; and for that reason, though doubtfully, I prefer an approach which holds that A-Pak and Asian Century are distinguishable from Mibor ; and that Mibor should be preferred to Keylink , which extrapolated from A-Pak .
No substantial injustice
[131] Reflecting much authority, Callaway JA said in King v Lintrose Nominees Pty Ltd [175] -
Leave to appeal from an interlocutory order is ordinarily granted only where the applicant shows (1) that the decision below was attended with sufficient doubt to warrant its being reconsidered on appeal and (2) that substantial injustice would be caused if the order made were allowed to stand.
In a footnote, his Honour noted that he --
... include(d) the word 'ordinarily' in the formulation, partly as a reminder that the grant or refusal of leave is ultimately a question of discretion and partly to take account of exceptional circumstances such as are illustrated by Composite Buyers Ltd v JC Taylor Constructions Pty Ltd [1983] 2 VR 311.
[132] In my opinion, there is a substantial point for consideration whether authorities have taken a wrong turn insofar as they have concluded that time for compliance with a statutory demand made under s 459E of the Corporations Act 2001 (Cth) ("the Act") cannot be extended under s 459F(2)(a)(i) of that Act once the period of compliance has ended; a fortiori when the period has come to an end after a right of appeal from refusal to set aside the demand has been invoked but the appeal has not yet been heard and determined. For that reason, I consider that Aussie Vic Plant Hire Pty Ltd ("Aussie" or "the company") has satisfied the first circumstance which must ordinarily be present in order that there should be grant of leave to appeal.
[133] All thing being equal, however, I would hold that Aussie has not shown that substantial injustice would be caused if the impugned order was allowed to stand. That is for the reasons which follow.
[134] The judge ordered that Aussie's appeal from the Master's order should be dismissed on the footing that it was incompetent. That deprived Aussie of the re-hearing de novo to which it would otherwise have been entitled. The judge also made a costs order adverse to Aussie. The effect of the dismissal of the appeal was that the time for compliance with the statutory demand remained at an end, with the consequences set out in s 459C(2)(a) of the Act, though subject to the "safety net" of s 459S.
[135] Generally, in such circumstances, the party affected would establish that substantial injustice would be caused if the order producing that outcome was allowed to stand. But in this proceeding, in my opinion, if the judge was wrong about the effect of s 459F, Aussie was only deprived of the opportunity of advancing a hopeless contention that there was a genuine dispute about the existence or amount of the debts the subject of the demand; or that it had a genuine offsetting claim. To deprive Aussie of that opportunity would work no injustice, still less substantial injustice.
[136] This court is equipped and is able to reach the conclusion which I have just expressed. It is to be remembered that, by r 77.05(7) of Ch I, a party on appeal may --
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- Rely upon any affidavit used or oral evidence given before the Master or;
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- By special leave of the judge, rely upon an affidavit or oral evidence not used or given before the Master.
[137] In the present case, the hearing before the Master was wholly conducted on affidavit evidence. There was the affidavit of Bruno Strangio sworn 3 April 2006 in support of Aussie's application; and the affidavits of Glenn Price sworn 16 May 2006, [176] Patrick Walsh sworn 17 May 2006, Mary Toh sworn 18 May 2006 and Jordan Orfanos sworn 18 May 2006 in opposition. A few documents were exhibited to Mr Strangio's affidavit; and many documents to Mr Price's affidavit of 18 May.
[138] Going forward to the anticipated hearing of the appeal on the merits, the solicitors for Aussie filed two further affidavits: of James Tzouvelis and of Joseph Nicolazzo, each sworn 19 July 2006. [177] The judge might have granted Aussie special leave to rely upon those affidavits. For the purposes of considering whether leave to appeal from the impugned order should be granted, I assume that his Honour would have done so.
[139] In the event, there being nothing to suggest that any deponent was to have been called for cross examination, [178] the material available for consideration by the judge had he considered the substance of the appeal is not in doubt. That material is before this court, as are detailed submissions by Esanda as to the absence of genuine dispute or genuine offsetting claim.
[140] Before considering that material, and explaining my conclusion, I should mention two pertinent considerations. First, it is for the company served with a statutory demand to show that it should be set aside. [179] Second, in deciding whether a company has established that there is a genuine dispute about the existence or amount of the debt to which the demand relates, or has established that it has an offsetting claim, at least in most cases, it is not for a court to embark upon an extended enquiry, and certainly not attempt to weigh the merits of the dispute. [180] Nonetheless, as McClelland CJ in Equity observed in Eyota Pty Ltd v Hanave Pty Ltd : [181]
In my opinion [the expression 'genuine dispute'] connotes a plausible contention requiring investigation, and raises much the same sort of considerations as the 'serious question to be tried' criterion ... 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 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 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.
[141] I turn to the affidavit material. It is necessary to review it in some detail -- not to analyse it in an impermissible manner, but simply to illuminate the fact that there was nothing behind the façade erected by Aussie, this bespeaking absence of either a genuine dispute or of a genuine offsetting claim.
[142] It is convenient to note some uncontroversial matters at the outset. First, Aussie was registered on 25 January 2002. Its business, as its name implies, was plant hire. The equipment which was the subject of the eleven offer to hire and chattel mortgage contracts with Esanda, those contracts having been entered into variously between 18 February 2002 and 8 February 2005, gives an indication of the kind of plant which was the subject of Aussie's business: earthmoving equipment and related vehicles.
[143] Second, Mr Bruno Strangio was the sole director of Aussie, and its secretary. He was also its sole shareholder until his two shares were transferred to a company the registered office of which was Aussie's registered address. That company was referred to in an exhibited document as "the children's company".
[144] By his affidavit sworn 3 April 2006, Mr Strangio deposed his belief that the statutory demand was defective. He listed five matters. All but the first of them took as its starting point an assumption that the demand was required to state matters which are not required to be stated by s 459E(2) of the Act. In any event, if there were any of the defects complained of, they were inconsequential, [182] because book, line and verse of the inadequacies complained of was addressed by exhibits to Mr Price's affidavit sworn 16 May 2006.
[145] It may be the first of the alleged defects was present. The solicitor who signed the demand on Esanda's behalf did not identify himself as a partner in the solicitor's firm. But that error, if it existed, was also inconsequential. The solicitor, Mr Walsh, swore an affidavit in which he deposed to having been a partner at the pertinent time.
[146] Mr Strangio then deposed a denial that Aussie was indebted to Esanda in the amount claimed. [183] The first basis of that denial was as follows:
... it appears that not all payments made by the plaintiff have been correctly credited to the various facilities entered into between the parties. I am currently seeking to reconcile all payments made by the plaintiff and propose to file a further Affidavit in this regard in due course.
[147] But that was no more than puffery. Three points should be made. First, exhibited to Mr Price's affidavit of 18 May 2006 were details of every payment made by Aussie on each of the 11 contracts. Second, confronted by that material, Mr Strangio did not put on a further affidavit seeking to contravene those details, or to suggest that he was in any way disabled from doing so. Indeed, his proposed further affidavit never saw the light of day. Third, also exhibited to Mr Price's affidavit were statements sent to Mr Strangio from time to time in the latter months of 2005. They detailed, inter alia, the amount of arrears on each contract. Also exhibited were note of discussions between Mr Price and Mr Strangio, and between Mr Price and Mr Nicolazzo. It is plain that at no time over that period of months did Mr Strangio dispute Esanda's statement as to the amount of arrears on each contract, the amount then due thereon, or the pertinent payout figure. Rather, from mid-September 2005, Mr Strangio was attempting to arrange re-financing through his finance brokers, apparently on the basis of figures supplied by Esanda.
[148] Mr Strangio further deposed in his affidavit of 3 April 2006 that "when [Aussie] experienced difficulties in meeting its monthly payment obligations" he commenced negotiations with Mr Price "in and around November 2005". The negotiations, on Mr Strangio's account, involved him telling Mr Price that Aussie would be seeking to refinance its borrowings and pay out Esanda, Mr Price assuring him that he would provide an accurate payment history in response to any third party enquiries about Aussie, and Mr Price agreeing to provide Aussie with an indulgence in respect of further instalment payments "until the re-finance package came through."
[149] Against the background of those negotiations, Mr Strangio deposed, he had been informed by Aussie's finance broker that a proposed new lender had contacted Esanda, and had been provided with "an entirely negative and false account of [Aussie's] payment history", Aussie being falsely described a "high risk debtor" which had been in default "for over a period of 6-8 months." It was this false picture, Mr Strangio deposed, which had caused the proposed new lender to decline to grant final approval of the re-finance package; and no other lender had been found. But for Esanda's conduct, Aussie "would have settled its accounts with [Esanda] on or about 30 November 2008."
[150] In consequence, Mr Strangio deposed, he believed that there was a genuine dispute "as to whether [Esanda] had any right to terminate the relevant hire contracts and chattel mortgages." He believed that Esanda was "estopped and precluded from purporting to exercise its legal rights in light of its unconscionable conduct." In addition, he believed Aussie had a right to seek relief against Esanda for "defamation, misleading, deceptive and unconscionable conduct." He had instructed Aussie's solicitors to "file legal proceedings against [Esanda] arising out of its conduct."
[151] Finally, Mr Strangio deposed to the solvency of Aussie, and to his belief that Aussie would be able to refinance its facilities once Esanda withdrew "its defamatory imputations" and undertook not to repeat them.
[152] The blackguarding of Aussie by Esanda to which Mr Strangio deposed was at best second-hand hearsay. Neither the broker or the proposed lender were identified. Further, Mr Strangio's conclusion that the allegedly false picture painted by Esanda had caused the proposed lender to decline to re-finance Aussie was bald assertion, as was his statement that but for Esanda's conduct Aussie would have settled its accounts on or about 30 November 2005.
[153] The wafer-thin character of this material was the subject of supplementation by the late-sworn affidavits of Messrs Tzouvelis and Nicolazzo. These gentlemen were at pertinent times directors of Consolidated Securities & Investments Ltd, an Oakleigh finance broker.
[154] Mr Tzouvelis deposed that in mid December 2005 Ms Julie Fyffe, a representative of a company named Paramount, had informed him that Paramount had rejected Aussie's application for re-finance because of an adverse credit reference provided by Esanda. He had been informed, and believed, that "credit representatives" of Esanda had reported that Mr Strangio and his company had a very cloudy credit history, were high risk, and that Mr Strangio was dishonest and deceitful by hiding the equipment and refusing to return it. Ms Fyffe, according to Mr Tzouvelis, had informed him that she had been ordered not to assist "due to the fear of [Paramount] being black-banned by [Esanda] and other financial institutions."
[155] Further according to Mr Tzouvelis, he had been unable to procure any other funds notwithstanding numerous applications. He believed that Esanda's adverse credit rating had "acted as a major impediment to obtain re-finance."
[156] Mr Nicolazzo deposed that he had communicated with Mr Price in the period September to November 2005 -- initially to tell him that he was lodging an application to re-finance, later to tell him that he was able to secure a re-finance package with Paramount Leasing Services subject to a satisfactory credit clearance for Aussie. But, he deposed, "due to an unsatisfactory credit report provided by [Esanda's] credit officers to Paramount [as described by Mr Tzouvelis], Paramount did not proceed with the refinance package."
[157] Mr Nicolazzo, like Mr Tzouvelis, deposed also an inability to secure other refinance despite numerous applications; and to his belief that Esanda's credit reporting had "acted as a major impediment to obtain refinance to [Aussie]."
[158] Apart from bold assertions by Messrs Tzouvelis and Nicolazzo as to their belief why numerous finance applications had been rejected, unsupported by any specification of the entities to which, and the times at which, application had been made and rejected, or by any statement as to the grounds for their belief, the affidavits of those gentlemen focused upon what was said to be Paramount's rejection of a refinance application on the basis of a very adverse credit report provided by Esanda. Keeping that assertion to the forefront, and also the matters deposed to by Mr Strangio, [184] I turn to the affidavits sworn by Esanda employees. The following matters are to be noted.
[159] First, between 11 August 2005 and 8 December 2005 Mr Price wrote to Mr Strangio at least nine times concerning escalating total arrears on the 11 contracts.
[160] Second, by 11 August 2005 there was already a substantial arrears on nine of the 11 contracts. Some contracts were about a month in arrears, another contract about two months in arrears, and another still many months in arrears.
[161] Third, from 18 October 2005, though not in all instances, details of Aussie's position were sent to Mr Tzouvelis as well as to Mr Strangio and sometimes to "Jo"- presumably Joseph Nicolazzo.
[162] Fourth, a fax sent by Mr Strangio to Mr Price dated 13 September 2005 shows that it was then that Mr Strangio first raised the issue of refinancing, and sought an indulgence with respect to arrears.
[163] Fifth, a file note made by Mr Price on 26 September 2005 shows that he and Mr Nicolazzo first had contact on that day. Mr Nicolazzo advised him that refinancing would be sought from a "non-traditional" lender, because a "traditional" lender would not do a deal. He, Mr Nicolazzo, had all the information required, was reasonably confident of approval, and would know the situation by 28 September. If approved, he would expect settlement within 2 weeks.
[164] Sixth, on 10 October the broker advised Mr Price, as the latter noted in a file note made that day, that refinancing had been approved in principle. The broker expected to have unconditional approval by 14 October, with settlement some time in the following week.
[165] Seventh, on 21 October 2005, as recorded in a file note made by Mr Price, Mr Strangio advised him that final approval had been obtained. The broker also advised him that he had approval, and later said that settlement would be on 27 October.
[166] Eighth, in truth there could not have been "final approval," for settlement did not take place on 27 October. The next recorded development is that Mr Nicolazzo emailed Mr Price on 29 November, saying that he had been advised that "the funder is settling tomorrow." He added that "unfortunately some lenders let you down when it comes to settlement times and time lines which are not met."
[167] Ninth, Mr Price informed Mr Strangio on 8 November 2005 that the indulgence on payment of arrears would be extended only to 21 November. If the arrears were not cleaned up by then, Esanda required return of the equipment the subject of the contracts. So much was recorded by Mr Price in a file note made that day, and repeated in a letter of that date addressed to Mr Strangio.
[168] Tenth, the file note further shows that on 7 November 2005 the broker advised Mr Price that Paramount required documents from Aussie confirming its ownership of unencumbered goods, and that Mr Strangio was sole director and shareholder. But this might be difficult because a company -- said to be the "children's company" -- was now the shareholder, it having a fixed and floating charge over the assets.
[169] Eleventh, on 5 December Mr Strangio telephoned Mr Price to say that the deal appeared to have fallen through. He also refused to deliver up the equipment, which according to a note made by Mr Price he had agreed to do in a conversation on 1 December 2005. Those matters were recorded by Mr Price in a file note made that day.
[170] Twelfth, the file note also shows that on 5 December 2005 Mr Strangio asserted that the lender was "reconsidering approval due to adverse credit references from financiers." He "believe(d) Esanda to blame". He was advised that "no one has contacted this office for a reference." Mr Price, I interpolate, deposed that in or about November 2005 he told Mr Strangio that, in accordance with ordinary practice, he would provide "accurate historical information to any third party who enquired about [Aussie]."
[171] Thirteenth, Esanda's records show that on two occasions requests for a credit check were made by an entity known as "Profinance Limited". One was on 10 November 2005, one was on 20 December 2005. In each instance a report was provided, according to Mr Price, in accordance with guidelines established by a National Credit Reference Scheme. The persons who required the information respectively identified themselves as "Karen" and "David Morris".
[172] Fifteenth, the two Esanda employees who responded to the credit check requests -- Mr Orfanos and Ms Toh -- deposed to responding in accordance with the protocol by providing a summary total of the outstanding balance payable, a summary of monthly repayments, and advice as to Aussie's credit rating. The last-mentioned was "slow", this indicating that on average it had accrued over 14 days of arrears in respect of its contractual obligations at the date of enquiry. According to Mr Price, it reflected a situation dated from at least June 2005 -- an assertion supported by the historical payment statements exhibited to his affidavit.
[173] The contemporaneous material makes it abundantly clear that a number of the key assertions made by Mr Strangio and his brokers are insupportable.
[174] First, contrary to assurances, dating from 26 September 2005, that finance would soon be, or had been, arranged, there was never final approval of a refinancing package. The sequence of events bespeaks a continuing inability, long before any credit reference was sought from Esanda, to get such an approval.
[175] Second, the only credit reference sought before 5 December 2005 -- on which date Mr Strangio advised that the deal appeared to have fallen through -- had been sought on 10 November 2005. But in the period between 10 November and 5 December the brokers had reported a problem to do with ownership of the equipment. Also in that period, the brokers had advised the settlement was to proceed -- though it did not -- on 30 November.
[176] Third, Julie Fyffe of Paramount, referred to by Mr Tzouvelis and Mr Nicolazzo, evidently did not speak with an Esanda representative. The pertinent request had been made by "Karen" of Profinance; and the report had been made to it. Even if, which is opposed to the sequence of events, Paramount had decided to refuse to refinance the equipment simply because of an adverse credit reference, there is nothing to show that the content of the reference was other than Mr Orfanos deposed.
[177] Fourth, the material in any event shows that Mr Orfanos was well-entitled to describe Aussie as a slow payer.
[178] Fifth, Mr Tzouvelis deposed that Esanda had reported to Ms Fyffe that Mr Strangio was dishonest and deceitful by hiding the equipment and refusing to return it. But the only request for a reference which could relate to Paramount's rejection of Aussie's finance application was made on 10 November 2005; and it was not until 5 December 2005 that Mr Strangio refused to give up the equipment. The matter thus deposed to by Mr Tzouvelis was an impossibility.
[179] Sixth, Mr Tzouvelis deposed that he was informed by Ms Fyffe "in or about mid December 2005" of the reason why Paramount had rejected the application for refinance. But that makes no sense when the application had been rejected early in December.
[180] Seventh, Mr Strangio's assertion that Mr Price had offered, in effect, an open-ended indulgence is at odds with contemporaneous material.
[181] To those consideration I should add, in considering whether a genuine dispute or genuine offsetting claim has been disclosed, that I put to one side Mr Strangio's assertions as to the legal consequences of Esanda's alleged misconduct -- "defamation, misleading, deceptive and unconscionable conduct." It is, however, to be noted that, at least as at June 2006, the threatened "legal proceedings" had not eventuated.
[182] I should also add that Mr Strangio's assertion that Aussie was solvent, unsupported by any financial records, sat ill with the company's increasing indebtedness to Esanda in the later half of 2006, and with statements made by Mr Strangio to Mr Price, file-noted by the latter, in which Mr Strangio described a falling-off in business and poor cash flow.
The operation of s 459F
[183] In light of my conclusion, in the circumstances described, that leave to appeal should be granted, I should address, though briefly, the merits of the issue sought to be agitated.
[184] In my opinion, for the reasons given by Maxwell P and Neave JA, and by Nettle JA, and notwithstanding the weighty considerations adverted to by Chernov JA, the proper construction of Pt 5.4 of the Act should yield the result that a court has power under s 459F(2)(a)(i), in conjunction with s 70, to extend time for compliance, despite the last date for compliance having passed, in order that a right of appeal not be rendered nugatory. [185] That seems to me to be the ordinary meaning of the pertinent provisions. Further, as explained by their Honours, on close analysis there are very few authorities to the contrary; and such authorities, being decisions of single judges, involve departure from the relevant language of the statute.
[185] To what their Honours have said, I would add two matters: First, Esanda laid considerable emphasis upon the contention that the purpose of Pt 5.4 of the Act is to achieve a speedy disposition of demands for payment made on companies that are probably insolvent. But it cannot be said that the working-out of s 459F(2)(a)(i), even on the construction contended for by Esanda, will always produce a day certain in the near future at which the time for compliance will expire. In that connection, on any view, it is unlike the situations which result from the operation of s 459F(2)(b), and from the operation of s 459F(2)(a)(ii) as construed in Buckland Products Pty Ltd v Deputy Commissioner of Taxation . [186]
[186] Second, s 459F(2)(a)(i) may be contrasted with s 459R(2)(b). The two provisions, inserted into the Act at the same time, differ significantly. In the case of s 459R, the legislature appears to have settled upon a form of words that would have the effect for which Esanda contended in respect of s 459F(2)(a)(i).
[187] But what should be done? Despite the force of the matters adverted to by Maxwell P and Neave JA, in my opinion the proper course is that proposed by Nettle JA. The proliferation of authority, a little of it directly in point, most of it tangential, tells in favour of such an outcome. A similar outcome, of course, would necessarily follow from the analysis undertaken by Chernov JA, an analysis which calls in aid, but which is not necessarily dependent upon, the various authorities considered by his Honour and by the other members of the Court.
[188] In my opinion, the application for leave to appeal should be granted, but the appeal should be dismissed.