Soper Industries Pty Ltd v Toll Transport Pty Ltd [2017] VSC 524 (1 September 2017): application to set aside statutory demand, whether there was a genuine dispute, section 459 of the Corporations Act, inconsistency between claim and documentation

September 5, 2017 |

The Supreme Court, per Gardiner AsJ, dismissed an application to set aside a statutory demand in Soper Industries Pty Ltd v Toll Transport Pty Ltd [2017] VSC 524.


Soper Industries Pty Ltd (‘Soper Industries’), applied under s 459G of the Corporations Act 2001 (Cth) (‘the Act’) to set aside a statutory demand served on it by Toll Transport Pty Ltd (‘Toll’), on 15 March 2017 [1].

Under the demand Toll claims that Soper Industries it $579,279.45 pursuant to the invoices attached to the demand, which related to the supply and delivery of diesel fuel between 25 December 2016 and 5 February 2017 [2]



Legal Principles

The Court referred, at [5], to  Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq)   in setting out the relevant principles of:

  • on an application to set aside a statutory demand, the applicant is required only to establish a genuine dispute or offsetting claim.
  • the applicant is required to evidence the assertions relevant to the alleged dispute or offsetting claim only to the extent necessary for that primary task.
  • it is not necessary for the applicant to advance a fully evidenced claim. Therefore, the task faced by an applicant is by no means at all a difficult or demanding one.
  • it is not necessary or appropriate to engage in an in-depth examination or determination of the merits of the alleged dispute because the application is akin to one for an interlocutory injunction and requires the applicant to establish that there is a “plausible contention requiring investigation” of the existence of either a dispute as to the debt or an offsetting claim.
  •  the criterion of a “genuine” dispute requires that the dispute be bona fide and truly exist in fact and that the grounds for alleging the existence of a dispute be real and not spurious, hypothetical, illusory or misconceived.
  • the dispute or offsetting claim should have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion and must also have sufficient factual particularity to exclude the merely fanciful or futile
  • the court is not required to accept uncritically 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, as it may not have sufficient prima facie plausibility to merit further investigation as to its truth.
  • the court is not required to accept uncritically a patently feeble legal argument or an assertion of facts unsupported by evidence, although this should not be read as suggesting that the applicant must formally or comprehensively evidence the basis of its dispute or off-setting claim.
  • except in such extreme cases, the court should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on by the applicant to set aside a statutory demand.
  • an applicant will fail only if the contentions upon which it seeks to rely are so devoid of substance that no further investigation is warranted.

The court, at [6], also cited Powerhouse Australasia Pty Ltd v Viarc Pty Ltd  regarding the the approach and standard to be applied which was:

  • while not a very exacting standard mere assertion of a dispute or off-setting claim, mere bluster or advancing grounds which are illusory or spurious or insufficiently particularised will not suffice.
  • the Court must not enter into the merits of the dispute,

but it is not crossing the line in relation to its legitimate role in these applications to consider evidence which “bears on whether or not the asserted dispute or off-setting claim is genuine”. Indeed, that is its necessary function.

The court stated, at [7], that in applications to set aside statutory demands, it is quite often necessary to conduct a close analysis of the contemporarily generated documentation and in particular of undisputed records of communications passing between the parties at the time the alleged genuine dispute (or offsetting claim) is said to have come into existence. His Honour noted that:

Experience teaches that such evidence is likely to be a reliable and objective source from which the court can proceed to perform its statutory function.

Consideration of the evidence

The Court summarised the genuine dispute as not that the fuel was not supplied by Toll  but rather that it was supplied to another company in the corporate group controlled by Daniel Soper (“Soper”), DEF Global Pty Ltd [4]

Soper Industries evidence, primarily per  Soper was:

  1. on or about 15 March 2017, he instructed his solicitors to write to Toll’s solicitors because  he could not reconcile the invoices attached to the statutory demand with any executed agreement between the parties [8].
  2. on 16 March 2017, Soper Industries’ solicitors requested a copy of any written supply agreement between the parties[9]
  3. Soper Industries’ position was that there was no such agreement between them [9].
  4. on 17 March 2017, Toll’s solicitors provided a copy of a document titled ‘Commercial Credit Application’  on the stationery of Toll North Pty Ltd trading as ‘Toll Mining Services’, dated 12 December 2017 with the applicant for credit was identified as Soper Industries [10].
  5. on 20 March 2017, Soper Industries’ solicitors advised Toll’s lawyers it could not reconcile the commercial credit application with the debt claimed in the statutory demand & why the statutory demand had been issued by Toll Transport on a Toll North Pty Ltd document [11].
  6. on 20 March 2017 Toll’s solicitors wrote in response confirming that the commercial credit application was sent in error and the debt arose on account of goods and services provided [12]
  7. on 21 March 2017, Soper Industries’ solicitors sought confirmation of the terms and conditions agreed to by the parties and pursuant to which the invoices the subject of the demand were raised [13]
  8. on 29 March 2017 Tollt’s solicitors maintained that Soper Industries had not articulated a genuine dispute as to the claim [14].
  9. Soper Industries’ solicitors contended that it was a ‘threshold issue’ to determine the terms and conditions of supply so that the contracting parties could be identified, the existence of the debt could be established, and the amount of the debt claimed could be reconciled [14].
  10. Soper Industries argued  that there was a dispute as to the existence of any settled agreement and that Soper Industries disputed the existence of any debt to Toll Transport [14].
  11. Soper says that the demand annexed six invoices which simply stated ‘Fuel Sales’ with no supporting breakdown of the quantity of the fuel or the price charged for that fuel, and that he has not been able to reconcile these invoices against any agreed terms and conditions, express or otherwise, for the terms of supply  and disputes the existence of the debt [15].

Toll’s evidence, across a number of affidavits was:

  • Marc Hyde, a business development manager employed by Soper Industries, contacted Toll saying he wished to set up an account on behalf of Soper Industries for the supply of fuel on credit.  Toll had previously dealings with Hyde in another capacity [16].
  • Hyde requested a credit application which was sent, and  styled as being issued by Toll North Pty Ltd, a related entity of Toll Transport [17].
  • on 12 December 2016 a credit application form was received, signed by a Soper Industries employee from its accounts department. The following day a ‘privacy declaration’ was received  signed by  Soper.
  • the credit application was made in the name of Soper Industries, nominated Soper as its only director, gave its trading address  as 74-80 Fitzgerald road, Laverton North, and the email address nominated for invoices was ’’ [19].
  • the credit application was returned as an attachment to an email stating ‘Please find attached Credit Application for Soper Industries Pty Ltd as per  Hyde’ [19].
  • on 20 December 2016, Soper Industries’ application was approved [21]
  • between 25 December 2016 and 5 February 2017, Toll rendered six invoices for diesel fuel supplied to Soper Industries at Soper Industries’ request, totalling $579,279.45 [23].
  • when delivering the fuel, Toll would complete delivery dockets which stated, amongst other things, the date of the supply of fuel, the volume of fuel supplied, the location to which the fuel was supplied, and who received the fuel if it was an attended delivery [23].
  • Toll rendered invoices for payment within 21 days based on the volume of fuel supplied, the price of the fuel, and any additional charges which arose because of supply to more than one location from one tanker load of fuel at Soper Industries’ nominated email address ‘’ for payment [24].
  • at paragraphs [25] – [44] Toll set out the contacts, conversations and emails involved with each of the 6 invoices.  With respect to each there was some form of communication, often conversation but also emails from Soper Industries.
  • on 6 February 2017 an employee of Toll spoke with Soper regarding the debt Soper promised to come up with a repayment plan on 7 February 2017 Soper emailed stating [45]:


Thanks for touching base – We’re working on a payment date at the moment, as our largest debtor just went into VA and second to this, are experiencing slow in-flows from other key clients.Debbie & I will come back to you asap with an indication on payment for this account.


The best points in Soper’s response to the quite extensive affidavit material put in by Toll was:

  • Hyde was not employed by Soper Industries [50] but Top Blue Australia which is a registered business name for DEF Global Pty Ltd ACN 607 204 357, not Soper Industries [51].
  • the correspondence between Toll Transport and DEF Global trading as Top Blue Australia confirms a relationship betweem Toll and DEF Global, not Soper Industries [52]
  • Toll failed to make a connection between the Toll North document and Hyde and how that connection bears a relationship and relevance to Toll and the amount of the statutory demand [53].

The rest of Soper’s response was not well received by the court, with his Honour stating:

  • regarding making much of the misdescription and confusion in Toll’s regarding the respective titles of plaintiff and defendant, something he regarded  as being “quite disingenuous” [54]
  • Soper did not take issue with the evidence as to the date, place, and quantity of the deliveries of the fuel which was deposed to in detailand corroborated by the documentation exhibited which was contemporaneously generated by Toll all of which nominate Soper Industries as the purchaser of the fuel [56].
  • at its height  Soper’s position is that Toll supplied the fuel to another member of the corporate group, DEF Global Pty Ltd, of which he is sole director [59].
  • that while Soper contended that the email correspondence have been either redacted or cut and paste manually into a photocopied sequence which affects their integrity but he he did not elaborate at all as to how the integrity of the chain has been corrupted in such a way as to mislead anyone reading the document [61].
  • neither Mr Hyde nor Soper Industries’ accounts manager  made affidavits.  The court noted that Hyde was clearly an employee of one or another of the corporate group controlled by  Soper  inferred that Hyde would have no evidence which would advance Soper Industries’ case [62]

The Court also noted that correspondence was admitted which referred to repayment plans by Soper Industries [75[ & [76].

In dismissing the application the Court noted:

  • the substance of the communications passing between the parties and their respective solicitors was such that there is no dispute between the parties which requires further investigation such that the demand should be set aside [78].
  • the position being put by Soper Industries in this proceeding as being implausible, disingenuous in its submission as to how various events should be interpreted, and without merit [78]
  • there was abundant evidence consisting of uncontradicted contemporaneously generated documents to support the position put by Toll Transport in this proceeding which revealed that all the requests for the supply of fuel were initiated by Hyde [79].
  • the explanation as to why Hyde and other Soper Industries employees did not file evidence in this proceeding was unconvincing [79].
  • there is no dispute that Toll supplied the fuel [80]
  • there was no suggestion by Soper that he was unaware of the debt, that Soper Industries was not the relevant party required to pay it, or that there was any issue with the payment of the debt save that Soper Industries was having cash flow issues as a result of one of their largest debtors going into voluntary administration [81]
  • when both parties solicitors corresponded Soper Industries proposed instalment plans for payment of the debt over five years Soper Industries’ solicitors identifying their client as Soper Industries and identified the debt and made proposals for its repayment, without reservation, by instalments [82]



The applicant’s very thin argument that Toll’s contract was with another legal entity was undermined from the outset by conduct of Soper Industries employees and agents.  The contemporaneous documentation and correspondence was either from Soper Industries or that Soper know of the debt.  Statutory demands have been set aside where there is a genuine dispute as to who the debtor is.  But here the latter correspodence from Soper’s solicitors essentially acknowledged the debt as being Soper Industries when proposing a repayment plan.

Document management and systems are critical to fending off applications which seek to rely on technical disputes. While Toll was sloppy in misidentifying its proper entity and sending the wrong documentation at the outset that problem was well rectified by the comprehensive documentation it could produce regarding delivery of the fuel and the application for credit.

In the handling of these applications it is often a mistake not to meet allegations, either as application or respondent.  Here the applicant provided only a partial response to Toll’s evidence. The inherent weakness of the application was highlighted by the fact that only the director of Soper Industries filed an affidavit even though there were employees of Soper Industries better placed to give direct and relevant evidence.

One Response to “Soper Industries Pty Ltd v Toll Transport Pty Ltd [2017] VSC 524 (1 September 2017): application to set aside statutory demand, whether there was a genuine dispute, section 459 of the Corporations Act, inconsistency between claim and documentation”

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