Re Convector Grain Pty Ltd (In Liquidation) [2017] VSC 473 (16 August 2017): Corporations Act sections 588F and 1322, power to amend, liquidator’s action, rule 3.02

September 19, 2017

Associate Justice Randall in Re Convector Grain Pty Ltd (In Liquidation) [2017] VSC 473 rejected an application for an extension of time on the service of originating process. In doing so his Honour undertook a very comprehensive review of the interaction of the Civil Procedure Rules with the Corporations Rules and section 1322 of the Corporations Act.

FACTS

The second and third plaintiffs, liquidators of the first plaintiff (‘Convector Grain’), sought relief under s 588FF(1) of the Corporations Act 2001 (Cth) (‘the Act’) that a preference in the sum of $337,928.27 be repaid to Convector Grain [1].

The liquidators were appointed as voluntary administrators in place of those originally appointed on 5 September 2013. By resolution made on 10 February 2014 they became liquidators of Convector Grain [14].

This proceeding is 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 »

Federal Court (Bankruptcy) Amendment (Insolvency and Other Measures) Rules 2017 take effect on 1 September 2017

August 30, 2017

The Federal Court (Bankruptcy) Amendment (Insolvency and Other Measures) Rules 2017  comes  into effect on 1 September 2017.  That will 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 »

Modeca Investments Pty Ltd v Commonwealth Bank of Australia [2017] VSCA 203 (18 August 2017): Statutory demand, application to set aside, claim that offsetting claim exceeds debt, sections 420A, 459H and 459J of Corporations Act 2001

August 20, 2017

The Victorian Court of Appeal considered an appeal from an unsuccessful application to set aside a statutory demand in Modeca Investments Pty Ltd v Commonwealth Bank of Australia [2017] VSCA 203.  The issue was the question of offsetting claim and its value as far as the applicant was concerned.  Ultimately the question became whether the applicant could show there had been a breach of section 420A of the Corporations Act, most importantly whether the process could be successfully attacked.

FACTS

The alleged debt arose out of a loan agreement entered into between the Commonwealth Bank of Australia (“CBA”) and 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 »