BRC Group Pty Ltd v Watagan Park Pty Ltd [2025] VSCA 36

BRC Group Pty Ltd v Watagan Park Pty Ltd [2025] VSCA 36
Court of Appeal of Victoria
Kennedy, Orr, & Kenny JJA
Corporations law – respondent served statutory demand on applicant alleging debt under loan agreement – applicant applied to set demand aside – application supported by affidavit filed within the required 21 day period – associate judge held affidavit raised ground of dispute there was no concluded loan agreement giving rise to alleged debt, decided that ground failed on the merits, and dismissed application – associate judge held affidavit did not raise an asserted additional ground that the repayment date under the loan agreement had not arisen because the loan was not to be repaid until respondent was able to elect to exercise an equity option under an equity right agreement – applicant sought leave to appeal, contending associate judge erred in finding the affidavit did not raise the additional ground, and not seeking to challenge finding of no concluded agreement – held: to raise a ground of dispute, supporting affidavit must raise that ground expressly, by necessary inference, or by a reasonably available inference – where dispute about the existence or amount of debt is based purely on construction of a document, the requirement may be satisfied by exhibiting the document to the affidavit – the equity right agreement was not exhibited to affidavit, and nor were its terms identified or described in even a summary way – passing reference to equity right agreement in affidavit insufficient – affidavit clearly intended to identify only the dispute the associate judge had rejected on its merits, that there was no final agreement as to terms of loan – leave to appeal refused.
BRC Group Pty Ltd