Re Ad Astra Institute Pty Ltd [2018] VSC 563 (25 September 2018) and : Section 359G Corporations Act, application to set aside statutory demand, 21 day affidavit required to ‘raise’ or ‘identify’ a particular ground expressly, genuine dispute, offsetting claim.

November 3, 2018

The Victorian Supreme Court in Re Ad Astra Institute Pty Ltd [2018] VSC 563 considered an application to set aside a statutory demand.  In dismissing the application the court undertook a useful analysis of both genuine dispute but more particularly the approach to be taken in preparing an offsetting claim.

FACTS

The defendant was engaged to develop QMS and other documentation (‘Training Documentation’) to meet the requirements of being a Registered Training Organisation (‘RTO’) and on the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’) [4].

In July of 2016, the plaintiff offered the defendant a contract for services, [4], with consultancy fees at:

    • an hourly rate (minimum of 3 hours) $575 per hour + GST
  • daily rate (maximum of 8 hours) $2,800 per day + GST [5].

The note at the bottom of the consultancy fees provides:

Please note:The terms of all invoices are 14 days and all invoices will be charged according to the hourly rate plus GST (Goods and Services Tax). These rates are reviewed from time to time and may change. We will tell you of any changes as soon as practicable after a change occurs [6].

with a further stipulation :

As negotiated:It is agreed that IRM [the Defendant] will cap its fees payable for initial registration and CRICOS registration at AUD$100,000 inclusive of required ASQA fees.

The Agreement was set out to have been made on 25 July 2016 and executed by James Sackl on behalf of the plaintiff. At all material times Read the rest of this entry »

A G Coombs Pty Ltd v M & V Consultants Pty Ltd (in liq) [2018] VSC 468 (22 August 2018): failure to comply with statutory demand, interlocutory injunction, allegation of abuse of process

August 31, 2018

The Victorian Supreme Court in A G Coombs Pty Ltd v M & V Consultants Pty Ltd (in liq) [2018] VSC 468 considered and dismissed a plaintiffs’ application for injunctive relief to prevent an application under section 459 of the Corporations Act 2001 being made.

FACTS

On Friday 15 June 2018, the plaintiffs sought urgent interlocutory relief and final relief by way of an injunction to enjoin the defendant from making an application under s 459P of the Corporations Act 2001 (Cth) to wind up each of the plaintiffs in insolvency in connection with statutory demands Read the rest of this entry »

Re Mossgreen Pty Ltd (in liquidation) [2018] VSC 230 (9 May 2018): rights to owners of goods held by liquidator under Australian Consumer and Fair Trading Act 2012

May 14, 2018

In Re Mossgreen Pty Ltd (in liquidation) [2018] VSC 230 Robson J considered the application of the Australian Consumer Law as against the operation of the Corporations Act and powers of liquidators.

FACTS

The auction house operating through the entity Mossgreen Pty Ltd (in liq) (‘Mossgreen’) went into liquidation on 4 May 2018. Administrators had been appointed on 21 December 2017 [1].

As an auctioneer, Mossgreen held a large quantity of goods (the ‘consigned goods’) belonging to other people (the ‘consignors’) described as being:

(a) goods delivered to it to be auctioned, but which had not yet been auctioned;

(b) goods delivered for auction, but which had failed to sell and which were awaiting collection by their owners; and

(c) goods which, although successfully sold at auction, had not been collected by the successful bidders [2].

which were stored in  three warehouses [3].

Sobraz Pty Ltd (‘Sobraz’), the plaintiff, is the landlord of one of the warehouses, situated at 1 Torteval Place, Clayton [3].

The administrators’ stocktake of the goods cost in excess of $1 million [4]. The administrators sought to levy each consignor with the sum of $353.20 per lot as a condition for releasing the lot to the consignor, asserting an equitable lien [5]. The administrators application for Read the rest of this entry »

In the Matter of Innovateq Pty Ltd [2018] VSC 124 (24 April 2018): Corporations, bringing proceedings under s 237 Corporations Act, application to wind up company, section 461

May 2, 2018

Justice Kennedy in In the Matter of Innovateq Pty Ltd [2018] VSC 124 considered an application under section 237 of the Corporations Act for leave to commence proceedings in a derivative action.  Judgments regarding leave applications are relatively uncommon.

FACTS

The proceeding involved two applications:

  • leave to the plaintiff pursuant to s 237 of the Corporations Act 2001 (Cth) (Act) to commence court proceedings in the name of Innovateq Pty Ltd (ACN 132 372 242) (Company) against Mr Daniel Phillips (a former employee) and two companies associated with him, Certeq Pty Ltd and Certeq NZ Pty Ltd (Certeq) (Leave Application); and
  • for an order that the Company be wound up (Winding Up Application).

The Company, in its capacity as trustee for the Read the rest of this entry »

Re Carter Holt Harvey Woodproducts (Australia) Pty Ltd (No 1) [2017] VSC 499 (6 September 2017):EQUITABLE CHARGE, whether debt was secured by a charge, agreement to charge, terms of guarantee and indemnity,equitable charge,meaning of ‘will charge’, priorities

September 17, 2017

The Supreme Court in Re Carter Holt Harvey Woodproducts (Australia) Pty Ltd (No 1) [2017] VSC 499 )  reviewed and considered the operation of a charge, by virtue of a guarantee and indemnity, vis a vis other claims on assets.  In this case the claim of a chargee defeated a claim by a liquidator who mounted a vigorous attack on the validity of the charge.

FACTS

Amerind Pty Ltd (receivers and managers appointed) (in liquidation) (Amerind) acted as trustee of the Panel Veneer Processes Trading Trust, which manufactured and distributed decorative and architectural finishes [1]. On 11 March 2014, the sole director of Amerind, Mr Naja David (“David”) resolved to appoint administrators to Amerind.  As Amerind’s  facilities and accounts were secured with the Bendigo and Adelaide Bank Limited on 11 March 2014 it appointed receivers and managers. Amerind was hopelessly insolvent [2]. Read the rest of this entry »

Stellar Projects (Vic) Pty Ltd v Cambridge Plumbing Pty Ltd [2017] VSC 532 (8 September 2017: section 459G of the Corporations Act, some other reason to set aside statutory demand.

September 11, 2017

The Supreme Court, per Randall AsJ  set aside a statutory demand in Stellar Projects (Vic) Pty Ltd v Cambridge Plumbing Pty Ltd [2017] VSC 532.  This was a case where the court had to consider conflicting authorities regarding a prematurely sworn affidavit. It ended up being a very bad at the office for the defendant whose statutory demand was set aside.

FACTS

The statutory demand dated 14 July 2017 claimed the sum of Read the rest of this entry »

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 »

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 »