JUDGE:	Randall AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2019
DATE OF JUDGMENT:	26 April 2021
CASE MAY BE CITED AS:	AMD Resources Ltd v TRS Management Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 202

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CORPORATIONS – Corporations Act 2001 (Cth) – Application to set aside a statutory demand pursuant to s 459G – Whether the statutory demand ought to be set aside for some other reason – s 459J(1)(b) – Whether debt is described in the affidavit accompanying the statutory demand adequately or at all – Whether the failure to specify adequately or at all is a formal or technical defect to which r 1.7(1) of the Supreme Court (Corporations) Rules 2013 (Vic) applies – Whether an invoice is a debt – Whether there is a genuine dispute as to existence of the debt – Whether conduct constitutes an admission as to the debt – Whether conduct constitutes a promissory estoppel by way of representation – Whether there is a genuine dispute that a debt is owed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms MJ Harris	LL Gold Lawyers
For the Defendant	Mr E Batrouney	Andrew Woolfe & Co

TABLE OF CONTENTS

Some other reason under s 459J(1)(b)............................................................................................. 1

The plaintiff’s submissions.......................................................................................................... 1
The defendant’s submissions...................................................................................................... 3
Consideration................................................................................................................................ 3
Supreme Court (Corporations) Rules 2013 (Vic)............................................................ 9
Circumstances that have been considered under s 459J(1)(b).................................... 10
Nature of the debt.............................................................................................................. 13
Application to this proceeding........................................................................................ 17

Genuine dispute............................................................................................................................... 19

Background.................................................................................................................................. 19
The submissions.......................................................................................................................... 20
The plaintiff’s written submissions................................................................................. 20
The defendant’s written submissions............................................................................. 21
Oral submissions............................................................................................................... 22

Consideration.............................................................................................................................. 26
Acknowledgement of debt............................................................................................... 37
Purchase orders.................................................................................................................. 38

Conclusion......................................................................................................................................... 40

Orders................................................................................................................................................. 40

HIS HONOUR:

This is an application to set aside a statutory demand dated 28 November 2018 and served by the defendant, TRS Management Pty Ltd (‘TRS’). The statutory demand sought payment of the sum of $29,787.45 from the plaintiff, AMD Resources Limited (‘AMD’). The schedule to the statutory demand described the debts as being due pursuant to three invoices respectively dated 1 July 2018, 1 September 2018 and 10 October 2018. The affidavit accompanying the statutory demand was sworn by Mr Perkes, a director of the defendant.

The plaintiff contends that the statutory demand ought to be set aside by reason of:

(a) there is a genuine dispute; or

(b) there are several grounds upon which the statutory demand should be set aside pursuant to either s 459J(1)(a) or (b) of the Corporations Act 2001 (Cth) (‘the Act’).

Some other reason under s 459J(1)(b)
The plaintiff’s submissions

AMD contends that the affidavit accompanying the statutory demand did not comply with s 459E(3)(b) of the Act as it did not comply with the court rules. Rule 5.2 of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AMD Resources Ltd v TRS Management Pty Ltd

Details

AGLC: AMD Resources Ltd v TRS Management Pty Ltd [2021] VSC 202
Case: [2021] VSC 202
Decision Date: 26 April 2021

CaseChat Overview and Summary

AMD Resources Ltd sought to set aside a statutory demand issued by TRS Management Pty Ltd. The demand was for a debt of $299,442.54 and was issued under section 459E of the Corporations Act 2001 (Cth). The dispute arose from AMD's contention that the statutory demand was invalid due to deficiencies in the accompanying affidavit and because of an alleged genuine dispute regarding the existence and amount of the debt. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the statutory demand should be set aside for reasons other than those outlined in the Corporations Act, specifically under section 459J(1)(b). The court also needed to determine whether the failure to adequately describe the debt in the affidavit was a formal or technical defect covered by rule 1.7(1) of the Supreme Court (Corporations) Rules 2013 (Vic). Additionally, the court considered whether an invoice could be considered a debt and whether there was a genuine dispute over the existence of the debt or if any conduct by AMD amounted to an admission or promissory estoppel as to the debt.

In delivering the judgment, Justice Byrne focused on whether the statutory demand was valid and whether there was a genuine dispute about the debt. The court concluded that the failure to adequately describe the debt in the affidavit did not render the statutory demand invalid as it did not constitute a formal or technical defect. The court further held that the invoice in question constituted a debt and found that AMD's conduct did not amount to an admission or promissory estoppel regarding the existence of the debt. Consequently, the court rejected AMD's application to set aside the statutory demand.

The court ordered that AMD pay the amount of the debt claimed by TRS, plus interest and costs. The decision underscored the importance of ensuring that statutory demands are properly supported by affidavits and highlighted the stringent requirements for setting aside such demands.

Orders