JUDGE:	Gobbo AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2025
DATE OF JUDGMENT:	5 August 2025
CASE MAY BE CITED AS:	Re Kotabi Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 471

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CORPORATIONS — Corporations Act 2001 (Cth) — Application to set aside a statutory demand pursuant to s 459G — Liability arising from an award of damages following Court of Appeal ruling and refusal of special leave application — Defendant claimed the amount of damages awarded in statutory demand — Whether genuine dispute — Whether offsetting claim—Application dismissed.

PRACTICE AND PROCEDURE — Procedural fairness — Self-represented litigant —Scandalous affidavit material and submissions filed by plaintiff — Rule 27.07(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Court’s power to remove material from the Court file — Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 — Bahonko v Sterjov (2008) 166 FCR 415 — Rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Court’s power to mark material as confidential.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Hoser by leave for the plaintiff	Not applicable
For the Defendant	Mr I Robertson, solicitor	Robertson Legal & Conveyancing Lawyers Pty Ltd

TABLE OF CONTENTS

Background matters

Non contentious factual matters

Other factual matters

Legal principles

Plaintiff’s key submissions

Grounds 1 and 2: Genuine Dispute

Ground 3: Offsetting Claim

Conclusion

HER HONOUR:

By originating process filed 2 October 2024, Kotabi Pty Ltd (ACN 007 395 048) (‘Kotabi’) applies for orders under s 459G of the Corporations Act 2001 (Cth) (‘Act’) to set aside the defendant’s statutory demand dated 3 September 2024 (‘Demand’). Kotabi does so on the basis of fifteen grounds identified in its originating process, to which I will return.
The Demand claims that Kotabi owes the defendant, Mr Mark Pelley, the sum of $171,000.00. The description of the debt is as follows:
For the balance of the amount Ordered by the Supreme Court of Victoria – Court of Appeal at Melbourne on 14 December 2023 pursuant to Order S EAPCI 2022 0031.
Kotabi relies on:
(a)the affidavit of Raymond Hoser filed 2 October 2024 (‘First Hoser Affidavit’);
(b)the affidavit of Mr Hoser filed 22 November 2024 (‘Second Hoser Affidavit’);
(c)the affidavit of Mr Hoser filed 30 January 2025 (‘Third Hoser Affidavit’); and
(d)written outline of submission (‘Written Outline’) filed 24 February 2025.
The defendant opposes Kotabi’s application and relies on the affidavit of Mr Pelley filed 5 December 2024, and a written outline of submission filed 11 February 2025.

Background matters

Kotabi was registered on 21 April 1990.[1] At the time this proceeding was filed with…

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.

Continue reading Re Kotabi Pty Ltd

Details

AGLC: Re Kotabi Pty Ltd [2025] VSC 471
Case: [2025] VSC 471
Decision Date: 5 August 2025

CaseChat Overview and Summary

Kotabi Pty Ltd was the defendant in an action brought by the plaintiff, who sought to set aside a statutory demand pursuant to section 459G of the Corporations Act 2001 (Cth). The dispute arose from a liability claim stemming from an award of damages following a Court of Appeal ruling and refusal of an application for special leave. The defendant argued that there was a genuine dispute over the amount of damages claimed in the statutory demand and sought to offset the claim. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether the defendant had established a genuine dispute with the plaintiff concerning the amount of damages claimed in the statutory demand. Additionally, the court had to consider whether the defendant had an offsetting claim that could be set against the amount claimed. The court also needed to assess the admissibility of scandalous affidavit material and submissions filed by the plaintiff and the procedural fairness afforded to the self-represented defendant.

The court found that the defendant had not demonstrated a genuine dispute concerning the amount of damages claimed in the statutory demand. The court held that the defendant's offsetting claim was insufficient to set aside the statutory demand. The court exercised its discretion under Rule 27.07(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to remove scandalous material from the court file, as well as its power under Rule 28.05 to mark certain material as confidential. Consequently, the application to set aside the statutory demand was dismissed.

The court ordered that the application be dismissed, with no orders as to costs.

Orders