RadioMio Pty Ltd v Kendell

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2011 182

RADIOMIO PTY LTD Plaintiff
v
DAVID WARD KENDELL Defendant
- and –

S CI 2011 184

SISS BUSINESS SYSTEMS LIMITED Plaintiff
v
DAVID WARD KENDELL Defendant
- and -
S CI 2011 00953
SISS BUSINESS SYSTEMS LIMITED Plaintiff
v
DAVID WARD KENDELL Defendant

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JUDGE:

GARDINER AsJ

WHERE HELD:

Melbourne

DATES OF HEARING:

29 April, 16 May and 3 June 2011

DATE OF JUDGMENT:

12 October 2011

CASE MAY BE CITED AS:

RadioMio v Kendell

MEDIUM NEUTRAL CITATION:

[2011] VSC 511

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CORPORATIONS – Applications to set aside statutory demands under s 459G of the Corporations Act 2001 (the Act) on bases of genuine disputes and offsetting claims - whether statutory demands should be set aside “for some other reason” pursuant to s 459J of the Act because of (1) unsatisfactorily explained variation in the amounts claimed in the series of demands served on the plaintiffs immediately prior to service of the subject demands (2) abuse of process of the statutory demand regime (3) lack of particularisation of the debts. Whether demand was in respect of “debt” properly so called – plaintiffs’ evidence established to relevant degree existence of genuine disputes and offsetting claims which evidence was not overtaken by defendant’s material – demands set aside “for some other reason” and by reason of genuine disputes.

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APPEARANCES:

Counsel Solicitors
For the Plaintiffs Mr J. Evans of Counsel John R. Morrow
For the Defendant Mr D W Kendell

HIS HONOUR:

  1. These are three related proceedings by which the plaintiffs seek to set aside statutory demands served by the defendant, Mr David Kendell.  During the course of the oral and written submissions, the three proceedings came to be identified by the last three digits of their respective proceeding numbers, 182, 184 and 953, and for convenience, I will adopt the same designation in these reasons. 

  1. In the course of the hearing, I heard argument as to whether the applications in 182 and 184 were made in time so as to comply with the provisions of s 459G. I determined that they were filed and served within 21 days of service of the demand. I also allowed amendments to be made to the originating processes in the 182 and 184 proceedings to the effect that the plaintiffs also relied upon s 459J of the Act, that is, that there was “some other reason” why the demands should be set aside. My basis for that ruling was that the factual matters which were the bases of such grounds were “raised” in the affidavit material filed and served with the originating processes.[1]  For the same reason, I allowed amendments to the originating processes in the three proceedings to the effect that the plaintiffs sought to set aside the demands on the basis that they had offsetting claims against the defendant. 

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Details
Case
[2011] VSC 511
Decision Date

CaseChat Overview and Summary

RadioMio Pty Ltd initiated proceedings against Kendell, seeking to set aside statutory demands served under the Corporations Act 2001. The dispute involved three separate statutory demands, each with a different date and amount, served on the plaintiff in the context of a larger commercial dispute. The primary legal issues before the court were whether the statutory demands should be set aside on the grounds of genuine disputes and offsetting claims, unsatisfactorily explained variations in the amounts claimed, abuse of the statutory demand process, and lack of particularisation of the debts.

The court considered whether the statutory demands were valid in light of the plaintiff’s evidence of genuine disputes and offsetting claims. The plaintiff provided evidence that there were genuine disputes regarding the amounts claimed, which were not adequately addressed by the defendant. Furthermore, the court noted that the variation in the amounts claimed in the series of demands was not satisfactorily explained, suggesting potential abuse of the statutory demand process. Additionally, the demands were criticised for lacking particularisation of the debts claimed, which is a requirement under the Corporations Act.

Consequently, the court determined that the statutory demands should be set aside for some other reason, as outlined in section 459J of the Corporations Act 2001. The court found that the evidence provided by the plaintiff established the existence of genuine disputes and offsetting claims that were not adequately addressed by the defendant. The court also found that the variation in the amounts claimed and the lack of particularisation contributed to the decision to set aside the demands. The court set aside the statutory demands in all three proceedings, aligning with the plaintiff’s submissions.

Orders

Orders of the court

In the 182 proceeding: I order that the statutory demand dated 25 December 2010 and served on the plaintiff by the defendant be set aside.

In the 184 proceeding: I order that the statutory demand dated 25 December 2010 which was served on the plaintiff by the defendant be set aside.

In the 953 proceeding: I order that the statutory demand dated 16 February 2011 and served on the plaintiff by the defendant be set aside.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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