RadioMio Pty Ltd v Kendell

The applicants, RadioMio Pty Ltd, sought to set aside three statutory demands issued by the respondent, Kendell, under section 459G of the Corporations Act 2001. The primary disputes revolved around the legitimacy of the demands, the variation in amounts claimed, the potential abuse of the statutory demand process, and the lack of particularisation of the debts. The matter was heard in the Federal Circuit Court of Australia.

The court had to determine whether the statutory demands could be set aside for reasons other than those explicitly mentioned in section 459G of the Act, particularly in light of variations in the amounts claimed in the series of demands, potential abuse of the statutory demand regime, and insufficient detail regarding the debts. Additionally, the court needed to assess whether the demands were indeed for "debts" properly so called, given the plaintiffs' evidence of genuine disputes and offsetting claims.

The court found that the plaintiffs had established to the relevant degree genuine disputes and offsetting claims. The demands were set aside as they contained unsatisfactorily explained variations in the amounts claimed and there was evidence of an abuse of the statutory demand process. The lack of particularisation in the demands further supported the setting aside of the statutory demands. The court concluded that the statutory demands were not for debts properly so called and ordered the demands set aside on the grounds of genuine disputes and for other reasons.

The court's final orders were to set aside the statutory demands dated 25 December 2010 and 16 February 2011 in the respective proceedings. The court's decision underscores the importance of proper particularisation in statutory demands and the potential consequences of abusing the statutory demand process.