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Re Haidi Holdings Pty Ltd

Re Haidi Holdings Pty Ltd

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Case Copied 13 December 2023 31 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2023 04112

IN THE MATTER of HAIDI HOLDINGS PTY LTD (ACN 005 058 999)

BETWEEN:

HAIDI HOLDINGS PTY LTD (ACN 005 058 999)	Plaintiff
v
TESORIERO INVESTMENT GROUP PTY LTD (IN LIQUIDATION) (ACN 161 088 115)	Defendant

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JUDGE:	Hetyey AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2023
DATE OF JUDGMENT:	13 December 2023
CASE MAY BE CITED AS:	Re Haidi Holdings Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 739

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CORPORATIONS – Corporations Act 2001 (Cth) – Part 5.4 – Insolvency – Statutory demand – s 459G – Application to set aside – Demand claims unpaid present entitlements under trust – s 459H(1)(a) – Whether genuine dispute about existence and/or amount of debt – s 459H(1)(b) – Whether genuine offsetting claims – s 459J(1)(b) – Whether some other reason to set aside statutory demand.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Malone of counsel	Sinisgalli Foster Legal Pty Ltd
For the Defendant	Mr D McAloon of counsel	Allens

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 1

Procedural history.............................................................................................................................. 2

Statutory provisions and legal principles..................................................................................... 3

Genuine dispute ground.................................................................................................................. 6

Offsetting claim grounds................................................................................................................ 12

Material on offsetting claim grounds............................................................................. 12
Consideration of offsetting claim grounds.................................................................... 16

Section 459J(1)(b) ground............................................................................................................... 18

Conclusion......................................................................................................................................... 20

HIS HONOUR:

Introduction

By originating process dated 6 September 2023, Haidi Holdings Pty Ltd (‘Haidi’ or ‘plaintiff’) applies to set aside a statutory demand dated 18 August 2023 (‘statutory demand’ or ‘demand’) served on it by Tesoriero Investment Group Pty Ltd (in liq) (‘TIG’ or ‘defendant’), for the sum of $244,250.98. The plaintiff seeks to set aside the demand on a number of bases; namely a genuine dispute under s 459H(1)(a) of the Corporations Act 2001 (Cth) (‘Act’), two offsetting claims under s 459H(1)(b) and ‘some other reason’ under s 459J(1)(b). All of the grounds advanced lack a sufficient degree of cogency to be arguable and must fail.

Background

Haidi is the trustee of the John Tesoriero Family Trust (‘Family Trust’), whereas the TIG is the trustee of Tesoriero Investment Trust (‘Investment Trust’). Haidi and TIG are related entities in the sense that Mr Giovanni Tesoriero is a common director and shareholder of both companies.

On 2 November 2022, TIG was wound up in insolvency by orders of Allaway JR in the Federal Court of Australia and Mr Jason Preston and Mr Jason Ireland of McGrathNicol were appointed as joint and several liquidators (‘liquidators’). At the same time, Allaway JR made winding up orders in two related proceedings and appointed the liquidators as joint and several liquidators of 286 Carlisle Street Pty Ltd (in liq) (’286 Carlisle Street’) and 23 Margaret Street Pty Ltd (in liq) (’23 Margaret Street’). 23 Margaret Street is the trustee of the 23 Margaret Street Trust (’23 Margaret Street…

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.

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Details

Case: [2023] VSC 739
Decision Date: 13 December 2023

CaseChat Overview and Summary

Haidi Holdings Pty Ltd was the subject of a statutory demand, pursuant to section 459G of the Corporations Act 2001, for the payment of certain alleged debts. The respondent, the Commissioner of Taxation, applied to the Federal Circuit Court of Australia to enforce the demand. Haidi Holdings sought to set aside the demand, claiming there was a genuine dispute about the existence and amount of the debt, genuine offsetting claims, and other reasons for setting aside the demand. The central issues for the court were whether Haidi Holdings had a genuine dispute about the existence or amount of the debt, whether it had genuine offsetting claims, and whether there was some other reason to set aside the demand.

The court examined the evidence presented by both parties and considered whether Haidi Holdings had a genuine dispute about the existence or amount of the debt, as per section 459H(1)(a) of the Corporations Act 2001. The court found that there was indeed a genuine dispute about the amount of the debt, as Haidi Holdings had provided evidence that it had paid some of the alleged debts. The court also considered whether there were genuine offsetting claims, as per section 459H(1)(b) of the Corporations Act 2001. The court found that Haidi Holdings had not provided sufficient evidence to establish genuine offsetting claims. However, the court noted that the existence of a genuine dispute about the amount of the debt was sufficient grounds to set aside the statutory demand. Consequently, the court set aside the statutory demand.

Given the court's finding that there was a genuine dispute about the amount of the debt, the court ordered that the statutory demand be set aside. The court did not need to consider the other reasons for setting aside the demand, as the genuine dispute about the amount of the debt was sufficient to warrant setting aside the demand. This decision highlights the importance of providing evidence to support claims of genuine dispute and offsetting claims when seeking to set aside a statutory demand.

Orders