RadioMio Pty Ltd v Kendell

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

---

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

---

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.

---

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. 

   [1]See generally Hansmar Investments Pty Ltd v Perpetual Trustee Co Limited (2007) 61 ACSR 321 at…