Re Coles Supermarkets Australia Pty Ltd [2022] VSC 438

The defendants were former employees of Coles Supermarkets, but Coles terminated their employment because they declined to be vaccinated in accordance with a COVID-19 vaccination policy for Coles employees. Through registered correspondence, the defendants attempted a typical OPCA foisted contract with a “Notice of Conditional acceptance to Offer” with an attached Fee Schedule for breaches of that supposed contract, followed by a “Notice of Default”. Re Coles Supermarkets Australia Pty Ltd [2022] VSC 438 dealt with the question of whether a statutory demand issued by the defendants against Coles for the sum of $6,028,250 should be set aside on the basis that there is a genuine dispute about the existence of the debt claimed in the demand.

Amber and Wenico submitted that whilst the defendants had issued the statutory demand and had been served with the plaintiff’s application to set it aside, they denied being the defendants themselves and instead maintained that they were “attorneys of record for the defendants … representing legal fictions” and “administering the estates for those legal fictions”, “in the all-capital name”. Citing Cash DCJ in R v Sweet [2021] QDC 216, Hetyey AsJ responded (at 17):

“The defendants appear to be seeking to draw a distinction between themselves as ‘natural’ or ‘living’ persons, on the one hand, and their status as ‘legal’ personalities, on the other. However, contemporary Australian law does not distinguish between a human being and their legal personality. Any such distinction would potentially leave a human being without legal rights, which would be unacceptable in modern society. The contentions put forward by the defendants in this regard are artificial and have no legal consequence.”

In response to the OPCA assertion that Coles silence or non-response to their notices created a contract from which the statutory demand would be legitimate, Hetyey observed (at 48):

“Further, any silence on the part of Coles or the named recipients of, or counterparties to, the purported contracts, invoices, other notices, and fee schedules sent by the defendants does not automatically constitute their acceptance or acquiescence. It is a fundamental principle of contract law that an offeree’s intention to accept an offer must be clear and unequivocal. However, because silence is almost always equivocal, it will rarely be regarded as acceptance. (See Allied Marine Transport Ltd v Vale do Rio Doce Navegaco SA [1985] 2 All ER 796; and JW Carter, Contract Law in Australia (7th ed, Lexis Nexis, 2018) at 3-29).

As the Court of Appeal further explained in Danbol Pty Ltd v Swiss Re International SE [2020] VSCA 274 (at 74): “The requirement for acceptance, which must be communicated by the offeree to the offeror, is subject to a number of principles. First, as a general rule, silence cannot constitute acceptance. The rule is primarily designed to protect the offeree from having a contract foisted upon it by preventing the offeror from stipulating that a contract will be created by silence on the part of the offeree. It is a reflection of the requirement for mutual assent.

Because there was no debt that was due and payable, the demand was set aside.

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