McIntosh v The Official Trustee in Bankruptcy

McIntosh (the applicant) sought to set aside a statutory demand issued by the Official Trustee in Bankruptcy (the respondent). The dispute concerned whether the applicant had a "genuine dispute" about the existence of the debt claimed in the statutory demand, which was based on a judgment debt arising from a previous proceeding. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant had established a "genuine dispute" regarding the existence of the debt for the purposes of setting aside the statutory demand under section 459H of the *Corporations Act 2001* (Cth). This required the Court to consider whether the grounds raised by the applicant constituted a substantial question of fact or law that ought to be tried.

Judge Burnett found that the applicant had failed to demonstrate a genuine dispute. The applicant's arguments relied on allegations of fraud and misrepresentation in the underlying judgment, which had already been litigated and dismissed in prior proceedings. The Court held that these matters were res judicata and could not be relitigated in the context of a statutory demand application. The principles of issue estoppel and cause of action estoppel prevented the applicant from raising these defences again. The Court reiterated that a statutory demand proceeding is not a forum for re-examining concluded litigation.

The application to set aside the statutory demand was dismissed.