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.

FACTS

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 Read the rest of this entry »

Ausurv Operations Pty Ltd v Swanston Joe Pty Ltd (Costs) [2017] VSC 389 (30 June 2017): statutory demand by solicitor, application to set aside under section 459 of Corporations Act 2001, indemnity costs paid by defendant

August 28, 2017

In Ausurv Operations Pty Ltd v Swanston Joe Pty Ltd (Costs) [2017] VSC 389 Associate Justice Gardiner considered an application to set aside a statutory demand issued by a former solicitor of a company.

FACTS

On 7 March 2017 Ausurv Operations Pty Ltd (‘Ausurv’) applied to set aside a statutory demand dated 14 February 2017 served on it by Read the rest of this entry »

JJ Armstrong Pty Ltd v Hamptee Pty Ltd [2017] VSC 427 (26 July 2017): application to set aside statutory demand, sections 459 G adn 459J of the Corporations Act, genuine dispute and offsetting claim, notice of assignment of debt

August 27, 2017

Associate Justice Gardiner considered an application to set aside a statutory demand in  JJ Armstrong Pty Ltd v Hamptee Pty Ltd [2017] VSC 427.  The key issue was whether there had been a proper assignment of a debt.

FACTS

On 3 January 2017, the defendant (‘Hamptee’) served a statutory demand under s 459E of the Corporations Act 2001 (Cth) (‘the Act’) on the plaintiff (‘JJ Armstrong’) (‘the demand’) [1].

The demand claims that JJ Armstrong owed Hamptee $76,000. The schedule Read the rest of this entry »

289 Grange Road Developments Pty Ltd & Anor v Dalle Projects Pty Ltd [2017] VSC 409 (17 July 2017)

Associate Justice Randall considered two applications to set aside separate statutory demands in 289 Grange Road Developments Pty Ltd & Anor v Dalle Projects Pty Ltd [2017] VSC 409.  The underlying debts related to progress payments for building works undertaken.  That meant it was a factually involved case with  quite a technical arguments involving the operation of the Building and Construction Industry Security Payment Act 2002 .

FACTS

Each application was made  pursuant to s 459G of the Corporations Act 2001 (Cth) (‘Corporations Act’) to set aside separate statutory demands, each dated 15 March 2017 in relation to:

  • 289 Grange Road Developments Pty Ltd (“289 Grange”)
  • 11 Mitchells Lane Development Pty Ltd (“11 Mitchells”)

Each plaintiff is a different company incorporated for distinct projects [1]

The schedule, at [2] to the statutory demand for Read the rest of this entry »

FF (R & D) Pty Ltd v Australian Securities and Investments Commission [2017] VSC 482 (18 August 2017): Corporations, application to reinstate company, leave to proceed. sections 500(2) & 601AH of the Corporations Act

August 23, 2017

Associate Justice Randall in FF (R & D) Pty Ltd v Australian Securities and Investments Commission [2017] VSC 482  considered the principles in granting leave nunc pro tunc to proceed in a proceeding and the exercise of discretion under section 500 of the Corporations Act.

FACTS

The Plaintiff’s originating process sought :

  • order pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (‘the Corporations Act’) directing Australian Securities and Investments Commission (‘ASIC’) to reinstate the registration of Fuji Fuels Pty Ltd (In Liq).
  • leave pursuant to s 471B granting leave, nunc pro tunc, to proceed under the generally endorsed writ dated 13 September 2016 and the County Court application CI-16-04119 filed on 14 September 2016.

On 6 October 2010 an explosion occurred at Fuji Fuels’ premises.  The Plaintiff alleges Read the rest of this entry »

Body Corporate Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2017] VSC 435 (31 July 2017): statutory demand, application to set aside, offsetting claim, reliance on judgment and costs orders, claim of abuse of process

August 16, 2017

The Supreme Court, per Randall AsJ, in Body Corporate Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2017] VSC 435 considered what was always going to be an ambitious application to set aside a statutory demand which relied on a judgment debt.

FACTS

The litigation between the parties was protracted and hard fought in multiple proceedings in the Supreme Court. The history of how things ended up with a statutory demand is necessarily long and involved.

In 2002, the plaintiff, Bodycorp Repairers Pty Ltd (‘Bodycorp’), commenced proceedings against Maisano, in the Federal Court alleging breach of a franchise agreement and inducing breach of contract (the ‘Bodycorp proceeding’) [9]. In 2005, the Bodycorp proceeding was transferred to the Supreme Court of Victoria. Oakley Thompson acted for Maisano in the Bodycorp proceeding between 2004 and 2010 and then from March 2012 until the completion of trial [11]. Bodycorp lost and Maisano obtained a cost order in his favour [11]. An appeal to the Court of Appeal was dismissed and an application for special leave to the High Court was refused. Pursuant to a cost orders made in the Bodycorp proceeding, Maisano commenced proceedings in the Costs Court [12]. Maisano terminated Oakley Thompson’s retainer following a dispute over outstanding legal fees.  Oakley Thompson responded by issuing proceedings against Maisano seeking a declaration that it had an equitable lien over the costs judgment held by Maisano and that Oakley Thompson was entitled to have those costs taxed [13]. The Court found in favour of Oakley Thompson and held that it was entitled to have those costs taxed and  prosecute the taxation in the Costs Court. Read the rest of this entry »

Wilson v Bauer Media (Ruling No 5) [2017] VSC 355 (21 June 2017): application

August 13, 2017

As part of the rich vein of rulings and law that attend the Rebel Wilson case His Honour Dixon J considered an application by the Plaintiff to suppress publication of financial details she received from film contracts in  Wilson v Bauer Media (Ruling No 5) [2017] VSC 355 

FACTS

The plaintiff applied pursuant Read the rest of this entry »

Wilson v Bauer Media (Ruling No 6) [2017] VSC 356 (27 July 2017): defences of triviality and partial justification, removed from the jury

August 8, 2017

The rebel Wilson case, known to nerdy lawyer types as Wilson v Bauer Media, is the gift that keeps on giving in providing rulings related to the running of defamation trials. It was a hard fought, taken many points type of case.  That meant lots of arguments on points of law. In Wilson v Bauer Media (Ruling No 6) [2017] VSC 356 the court considered and ruled on the defence of triviality and partial justification.

DECISION

Triviliaty

The Plaintiff sought to have the defence of triviality not go to the jury.  The defendants pleaded Read the rest of this entry »

Re Bendigo Central Pharmacy Pty Ltd [2017] VSC 419 (21 July 2017): setting aside statutory demand, Graywinter affidavit, genuine dispute

July 26, 2017

The Supreme Court, per Randall AsJ, considered an application to set aside a statutory demand in Re Bendigo Central Pharmacy Pty Ltd [2017] VSC 419. The key issue was whether issues ultimately relied upon were raised in the Plaintiff’s initial affidavit, filed within 21 days of the statutory demand being served and the scope and operation of Graywinter affidavits.

FACTS

The debt relied upon in the statutory demand Read the rest of this entry »

Sheales v The Age & Ors [2017] VSC 380 (29 June 2017): defamation, damages where reputation not put in issue, mitigating and aggravating factors

July 6, 2017

After a 6 day trial a jury found for the plaintiff in the defamation proceeding of Sheales v The Age & Ors [2017] VSC 380.  The Court awarded damages in the sum of $175,000.  The current maximum amount awardable for non-economic loss is $381,000.

FACTS

The Plaintiff, Sheales, is a Victorian barrister practicing mainly in criminal law and sports law. The Third Defendant, Patrick Bartley, was a journalist who wrote an article about the Plaintiff’s appearance before a Racing Victoria stewards hearing on 2 August 2015. An issue before the steward’s hearing that day concerned the alleged use of the chemical element cobalt by the plaintiff’s clients [1]. Fairfax Digital Australia and New Zealand Pty Ltd, the second defendant, published the article online. The first defendant, The Age Company Pty Ltd, the owner and publisher of The Age newspaper, published the article, with some small differences on 3 August 2015 [2].

The Plaintiff alleged that he had suffered injury to his professional reputation and feelings, had been humiliated, embarrassed or Read the rest of this entry »