Perth Freight Lines Pty Ltd v BM2008 Pty Ltd (in liq)

Perth Freight Lines Pty Ltd applied for an order setting aside a statutory demand issued by BM2008 Pty Ltd, which was in liquidation. The statutory demand was based on an alleged debt owed by Perth Freight Lines. BM2008 contended that it was not liable to pay the debt because it was entitled to an offsetting claim against Perth Freight Lines, being a proportionate share of the distributable surplus of the creditor company upon completion of a voluntary winding up. The dispute centred on whether this alleged entitlement constituted an "offsetting claim" as defined in section 459J of the Corporations Act 2001 (Cth) and whether there was "some other reason" under section 459G of the Act to set aside the statutory demand.

The Court examined whether the alleged entitlement to a proportionate share of the distributable surplus constituted an "offsetting claim" under section 459J. It noted that an "offsetting claim" must be a claim that the debtor company has against the creditor company. The Court found that BM2008 did not have an "offsetting claim" as it had no entitlement to a proportionate share of the distributable surplus because there was no transfer of equitable interest in the shares of the creditor company. Section 493A(1) of the Corporations Act rendered any such transfer void. The Court also considered whether there was "some other reason" to set aside the statutory demand under section 459G. It held that the decision below was not attended with any doubt or error.

The Court dismissed the application to set aside the statutory demand. It concluded that the alleged entitlement to a proportionate share of the distributable surplus was not an "offsetting claim" under section 459J, and there was no "some other reason" to set aside the statutory demand. The Court found that the decision of the lower court was not attended with any error. The application was dismissed with costs.