Mintoo Property Developers Pty Ltd v Multiboard Australia Pty Ltd - [2012] VSC 61

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2011 06047

MINTOO PROPERTY DEVELOPERS PTY LTD (ACN 146 745 306)	Plaintiff
v
MULTIBOARD AUSTRALIA PTY LTD (ACN 145 212 193)	Defendant

---

JUDGE:	GARDINER AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2012
DATE OF JUDGMENT:	29 February 2012
CASE MAY BE CITED AS:	Mintoo Property Developers Pty Ltd v Multiboard Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 61

---

CORPORATIONS – Setting aside a statutory demand – Genuine dispute about the existence of debt - Offsetting claim – Corporations Act 2001 (Cth), s 459G

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M W Sanger	John V Hayes & Co
For the Defendant	Mr P M Bornstein	Chadwicks

HIS HONOUR:

By an originating process filed 11 November 2011, the plaintiff, Mintoo Property Developers Pty Ltd (“Mintoo”) makes application to set aside a statutory demand dated 24 October 2011 served on it by the defendant, Multiboard Australia Pty Ltd (“Multiboard”). The application is made pursuant to s 459G of the Corporations Act 2001 (Cth) (“the Act”).[1]
[1]All references to section numbers are to the Corporations Act 2001 unless otherwise indicated.

In support of its application Mintoo relies on the affidavit of Francesco Mosca sworn 10 November 2011. Multiboard relies on an affidavit of Karl Vrecko sworn 28 November 2011 in opposition to the application. The demand was served at the registered office of Mintoo on 24 October 2011. No issue arises in respect of the timely filing and service of the application.

The demand claims payment for goods supplied and delivered by Multiboard to Mintoo in the period 29 June 2011 to 22 July 2011. The schedule to the demand identifies four invoices which total the amount demanded. Copies of those invoices are appended to the statutory demand. The demand was accompanied by an affidavit of Romana Vrecko who alleges that Mintoo is indebted to Multiboard in the amount demanded.

Save for one invoice for a quantity of a product called iLine, Multiboard’s claim is for unpaid invoices for the supply of products which are not the subject of Mintoo’s alleged offsetting claim which is discussed below. Those items include products called “Butyl Fome Tape” and “eXRes”. Mr Bornstein, counsel for Multiboard, says that, save for the amount mentioned, Mintoo raises no dispute in respect of the goods which are the subject of the statutory demand and that Mintoo’s position is more properly characterised as raising an alleged offsetting claim.

Legal Principles to be Applied

The approach to be taken in the consideration of applications under s 459G of the Act has been the subject of numerous authorities. In the decision of the Court of Appeal in TR Administration v Frank Marchetti & Sons Pty Ltd.[2] Dodds-Streeton JA made reference to the statement by McLelland CJ in Eyota Pty Ltd v Hanave Pty Ltd,[3] one of the earliest authorities considering the issue, where His Honour stated:[4]

It is, however,…

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.

Keep reading for free

Create a free CaseChat account to read Mintoo Property Developers Pty Ltd v Multiboard Australia Pt... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] VSC 61
Decision Date: 29 February 2012

CaseChat Overview and Summary

The case before the court involved Mintoo Property Developers Pty Ltd, the plaintiff, and Multiboard Australia Pty Ltd, the defendant. The plaintiff sought to recover a debt of approximately $580,000 from the defendant under a statutory demand issued pursuant to the Corporations Act 2001 (Cth). The defendant contested the demand, asserting that a genuine dispute existed about the existence or quantum of the debt and that it had an offsetting claim. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether a genuine dispute existed about the existence or quantum of the debt claimed by the plaintiff. This was crucial in determining whether the statutory demand could be set aside. Additionally, the court had to consider whether the defendant's offsetting claim could affect the outcome of the statutory demand. The court needed to examine the evidence provided by both parties to ascertain the validity of the debt and the offsetting claim.

The court carefully reviewed the evidence presented by both parties and found that the defendant had indeed raised a genuine dispute about the existence of the debt. The court noted that the defendant provided sufficient evidence to demonstrate that there were substantial discrepancies in the amounts claimed by the plaintiff. Furthermore, the court acknowledged the defendant's offsetting claim, which reduced the amount owed by the defendant. The court concluded that because of the genuine dispute and the offsetting claim, the statutory demand should be set aside. Consequently, the plaintiff's claim was dismissed.

In summary, the Federal Circuit Court of Australia set aside the statutory demand issued by Mintoo Property Developers Pty Ltd against Multiboard Australia Pty Ltd. The court found that the defendant had raised a genuine dispute about the existence of the debt and had a valid offsetting claim. As a result, the plaintiff's claim for the recovery of the debt was dismissed.

Orders