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 »

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 »

Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) [2017] VSCA 182 (7 July 2017): power to make a substitution order, exercise of discretion, Rule 9.09 of the Civil Procedure Rules

July 23, 2017

The Victorian Court of Appeal in Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) [2017] VSCA 182 considered the scope and operation of Rules to permit a substitution order being made.

FACTS

The third applicant, Sandra Cerrato, was the executrix of the deceased estate of her father, Rocco Cerrato who . Mr Cerrato died on 14 August 2014 [1]. Prior to and in  2010 Mr Cerrato was a director of the first applicant, Culve Engineering Pty Ltd (‘Culve Engineering’), the second applicant, Tena Denham Nominees Pty Ltd (‘Tena Denham’), and the first respondent, Apollo General Engineering (Aust) Pty Ltd (in liquidation) (‘Apollo’) [2]. Ms Cerrato was joined as a defendant to this proceeding in her capacity as executrix in substitution for her father by an order made by an associate judge on 18 September 2015. She and the other applicants unsuccessfully appealed that decision to a judge in the Trial Division [3].

Prior to 21 April 2010 Apollo carried on Read the rest of this entry »

Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275 (24 May 2017): section 459G of the Corporations Act 2001, application to set aside a statutory demand, genuine dispute

June 5, 2017

In Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275  the Victorian Supreme Court, per Gardiner AsJ, dismissed an application to set aside a staututory demand on the basis that there was no genuine dispute.

FACTS

Medusa claimed Read the rest of this entry »

Gucce Holdings Pty Ltd v Bank of Queensland Limited [2017] FCA 12 (19 January 2017): application to set aside staututory demand, section 459G Corporations Act

February 5, 2017

In Gucce Holdings Pty Ltd v Bank of Queensland Limited [2017] FCA 12  the Federal Court considered whether a sale for undervalue, or at least a claim as such, was a basis for an offsetting claim (and what is required) as well as whether a special leave application was sufficient to set aside a statutory demand.

FACTS

Gucce Holdings Pty Ltd (ACN 099 191 714) filed an application, [1], with an  affidavit of  Tina Michelle Bazzo, director of Gucce,[2], on 29 December 2015 pursuant to s 459G of the Corporations Act 2001to set aside a statutory demand made by the Bank of Queensland Limited.

Bazzo stated that Read the rest of this entry »

Pekell Delaire Holdings Pty Ltd v Bendigo and Adelaide Bank Limited [2016] VSC 570 (21 September 2016): application to stet aside statutory demand, section 459, Corporations Act

September 23, 2016

The Supreme Court in Pekell Delaire Holdings Pty Ltd v Bendigo and Adelaide Bank Limited [2016] VSC 570 considered a statutory demand where a key issue was the effect of settlement of group proceedings acting as a bar to a claim of a genuine dispute to a statutory demand.

FACTS

In July 2006 the applicant, Pekell Delaire Holdings Pty Ltd (“PDH”)  applied to Great Southern Plantation Projects for two grove lots in the Great Southern Organic Olives Income Project and  four vine lots in the Great Southern Wine Grape Income Project with associated applications for term finance. Finance was approved and funds were advanced on the basis of repayment in seven years of principal and interest. The loans were subsequently assigned and ultimately transferred to Bendigo [6] Read the rest of this entry »