CBS Commercial Canberra Pty Ltd v Axis Commercial (ACT) Pty Ltd, in the matter of CBS Commercial Canberra Pty Ltd

CBS Commercial Canberra Pty Ltd applied to set aside a statutory demand served on it by Axis Commercial (ACT) Pty Ltd. The dispute arose out of a construction subcontract for work at a building site in Gungahlin in the Australian Capital Territory. The court was required to decide whether an offsetting claim rejected by an adjudicator under the Building and Construction (Security of Payment) Act 2009 (ACT) could be relied upon for the purposes of setting aside a statutory demand under the Corporations Act 2001 (Cth). The court also had to determine whether the claims CBS sought to rely upon were in truth offsetting claims and whether they were genuine.

The court found that an offsetting claim rejected by an adjudicator could still be relied upon for the purposes of setting aside a statutory demand. The court held that the claims CBS sought to rely upon were in truth offsetting claims. The court also found that the Offsetting Claims were genuine because they were bona fide claims based on truly existing facts. The court held that CBS had established a genuine counterclaim falling within s 459H(5) of the Corporations Act and ordered the statutory demand be set aside.

The court ordered that the statutory demand dated 28 April 2021 addressed to CBS be set aside pursuant to s 459G of the Corporations Act 2001 (Cth). The court also set out a timetable for the parties to file written submissions on the issue of costs.