Re Kotabi Pty Ltd
[2025] VSC 471
•5 August 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2024 05266
IN THE MATTER of KOTABI PTY LTD (ACN 007 395 048)
BETWEEN:
| KOTABI PTY LTD (ACN 007 395 048) | First Plaintiff |
| | |
| v | |
| MARK DAVID PELLEY | Defendant |
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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 the Court, Mr Hoser was the sole director of Kotabi and had been since 30 April 1990. Mr Hoser was also the sole shareholder.[2]
[1]Affidavit of Raymond Hoser filed 2 October 2024, 26–33.
[2]Ibid.
The Demand was issued against Kotabi and not Mr Hoser in his personal capacity. I therefore made orders, with the consent of the parties, at the first return of the originating process filed 2 October 2024, that the second plaintiff, Mr Hoser, be removed as a party to the proceeding and the heading of the proceeding be amended accordingly.
On each occasion before me, including at the final hearing on 24 February 2025, I granted Mr Hoser leave to appear on behalf of Kotabi pursuant to r 1.17 of the
Supreme Court (General Civil Procedure) Rules 2015(Vic) (‘Rules’).
Mr Hoser is a snake catcher whose activities include catching and removing snakes found in suburban Melbourne, training dogs to avoid snakes, staging snake and other reptile demonstrations at schools, school fetes and children’s parties. He styles himself under the name ‘snakebusters’ and asserts that he runs ‘Australia’s best reptile shows owned by the SnakeMan’. Mr Hoser says he has conducted his business through the plaintiff, Kotabi.
The defendant is also a snake catcher engaged in similar activities. Mr Hoser and Mr Pelley have been engaged in protracted litigation in various state and federal courts spanning many years.
In Hoser v Pelley,[3] their relationship was summarised in the following terms:[4]
In or about 2017, Mr Pelley began to advertise his services online via Google, and subsequently via Facebook. This aggrieved Mr Hoser, who was of the view that the advertisements contained terms which were similar to, and in some cases identical with, registered trademarks owned by him. Mr Pelley disputed this. Mr Hoser began to publish allegations about Mr Pelley on Facebook and elsewhere accusing him of, among other things, trademark infringements, theft, scamming and violent sexual offending.
[3][2023] VSCA 1.
[4]Ibid, [4].
Because the plaintiff is self-represented, it is appropriate to set out the applicable principles in respect of the Court’s approach when one of the parties is not represented by a lawyer.
A judge has a duty to represented and unrepresented litigants alike to ensure that the hearing is conducted fairly and in accordance with the law.[5] The duty, to assist a self‑represented litigant in civil proceedings, requires the judge to provide such guidance as necessary to a self-represented litigant as will ensure procedural fairness.[6] What a judge must do to assist a self-represented litigant depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[7] The assistance must be proportionate in the circumstances, it must ensure a fair trial and not afford an advantage to the self-represented litigant.[8]
[5]Werden v Legal Services Board (2012) 36 VR 637, [53] (citations omitted).
[6]Rajski v Scitec Corp Pty Ltd [1986] NSWCA 1 cited in Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129, [27]–[29] (‘Minogue’).
[7]Tomasevic v Travaglini (2007) 17 VR 100 citing Abram v Bank of New Zealand (1996) ATPR 41–507; Minogue (n 6) and Platcher v Joseph [2004] FCAFC 68, 104.
[8](2007) 17 VR 100, 130 (citations omitted).
The Court of Appeal, in Trkulja v Markovic,[9] has identified the proper scope of assistance to be offered to self-represented litigants, in the following terms:
In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence. It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.
The High Court has stated that a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. Similarly, this Court has endorsed the proposition that ‘[c]oncealed in the lay rhetoric and inefficient presentation may be a just case’.
It is clear that a judge cannot become the advocate of the self-represented litigant. This is because the role of a judge is fundamentally different to that of an advocate. Further, a judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. Accordingly, the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one litigant is self-represented.
[9][2015] VSCA 298, [39]–[41] (Kyrou and Kaye JJA and Ginnane AJA) (citations omitted).
In determining the application, I have considered all issues raised by Kotabi, whether orally at the hearing before me on 24 February 2025, in the First Hoser Affidavit, the Second Hoser Affidavit, the Third Hoser Affidavit or the Written Outline, to determine whether there are any grounds on which the Demand can be either set aside or whether there is any genuine offsetting claim. In so doing, my approach has not been to focus on proper form, which I consider is justified given the plaintiff’s unrepresented status and is consistent with the approach to unrepresented litigants that is summarised at paragraphs 11 to 13 above.
Notwithstanding allowances as to proper form, having read and considered all the material filed by Mr Hoser on behalf of Kotabi, it is necessary for me to say something more about the content of much of that material, in particular the Written Outline and Third Hoser Affidavit. The Third Hoser Affidavit (including exhibits) comprises 543 pages. Many of the matters raised in that affidavit and exhibits (and which are repeated in the Written Outline) are scandalous, irrelevant and have nothing to do with whether there is a genuine dispute or offsetting claim. By way of example, Mr Hoser, on behalf of Kotabi, has exhibited:
(a)news reports in relation to two entirely unrelated criminal proceedings in which one of the judicial officers who has heard a prior matter involving Mr Hoser is referenced and to which Mr Hoser has added his own pejorative and scandalous description of the judicial officer;
(b)a transcript of a separate County Court proceeding concerning an intervention order appeal in respect of which neither Kotabi nor Mr Hoser was a party;
(c)an affidavit filed in a Supreme Court of Victoria judicial review application, bearing proceeding number S ECI 2018 02026, concerning an intervention order appeal in respect of which neither Kotabi nor Mr Hoser was a party;
(d)a multitude of documents filed in or in respect of an appeal from Pelley v Kotabi Pty Ltd[10] (‘County Court Decision’) which, I note, is at an end by reason of the High Court declining Mr Hoser and Kotabi’s application for special leave to appeal from the whole of the judgment of the Court of Appeal in Hoser v Pelley (No 3)[11] (‘Court of Appeal Decision’) which had allowed an appeal, in part, from the County Court Decision;[12]
(e)a copy of the restricted version of the reasons for judgment in the County Court Decision;
(f)a copy of the restricted version of the reasons for judgment in the Court of Appeal Decision; and
(g)an extract of the Magistrates Court website recording hearing dates for a person other than the defendant who also has the surname Pelley.
[10][2021] VCC 1425.
[11][2023] VSCA 257.
[12]The High Court decision in Hoser v Pelley & Anor [2024] HCASL 74 records that the only applicant was Mr Hoser.
Similarly, the scandalous nature of the Third Hoser Affidavit is further demonstrated by the very question Mr Hoser, on behalf of Kotabi, says is required to be determined by me at paragraph 98 of that affidavit. I decline to reproduce this question.
The question posed by Mr Hoser on behalf of Kotabi has no relevance to the application before me. The question for the Court is whether there exists a genuine dispute and/or offsetting claim in relation to the sum claimed in the Demand.
Pursuant to r 27.07(b) of the Rules, where a document for use in the Court contains scandalous matter, the Court may order that, if the document has been filed, it be taken off the file. Generally speaking, a claim or defence will be seen as ‘scandalous’ if it contains allegations of ‘anything which is unbecoming to the dignity of the Court to hear,[13] and which are immaterial to the case at hand.[14]
[13]Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138, [25] (Hasluck J); Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728, [9] (Reeves J) (‘Crocker’); Sarto v Sarto [2021] VSC 295, [42] (Derham AsJ).
[14]Crocker (n 13), [9] (Reeves J); Winters v Fogarty [2017] FCA 51, [80] (Bromberg J).
It should also be noted that the fact a party is self-represented does not affect the application or strictness of the principles set out above.
In Rajski v Scitec Corporation Pty Ltd,[15] the Court held that:[16]
…The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
[15][1986] NSWCA 1.
[16]Ibid, 27 (Samuels JA).
In Bahonko v Sterjov,[17] the Federal Court observed that:[18]
[The applicant] is an unrepresented litigant. Normally, the Court attempts to ensure that a circumstance of that kind does not lead to unnecessary disadvantage. However, it is appropriate to make it clear that such a circumstance brings no special privileges and cannot justify lack of proper attention to the interests of other parties. It provides no reason to permit procedural or other conduct outside the standards of behaviour reasonably expected when a litigant exercises a right of access to this Court and its processes, whether at first instance or on appeal.
[17](2008) 166 FCR 415.
[18]Ibid, 417 [6] (Gyles, Stone and Buchanan JJ); Bahonko v Nurses Board of Victoria [2008] FCAFC 29, [10] (Gyles, Stone and Buchanan JJ).
During the course of the hearing before me, I raised with Mr Hoser my concern as to a number of matters that were set out in the Third Hoser Affidavit.[19] As noted, many of those matters are replicated in his Written Outline. Additionally, many of these matters are also contained in the documents exhibited to the First Hoser Affidavit. Mr Hoser denied that any of the matters set out in the Third Hoser Affidavit were scandalous, asserting that the Court was ‘something out of futurama… and utopia rolled in one where…we've got thought police’.[20] When informed that it was open to the Court to direct that parts of his affidavit be removed or redacted, Mr Hoser said that it was a matter for the Court.[21] He made no application to withdraw or have redacted any part of the Third Hoser Affidavit or Written Outline, instead telling the Court that the matters set out in his documents were his thoughts and beliefs.[22]
[19]Transcript of Proceedings (24 February 2025) 41.4-42.27.
[20]Ibid, 21.27.
[21]Ibid, 41.19-41.20; 42.11-42.12.
[22]Ibid, 21.25-22.10.
Mr Hoser has appeared in a multitude of Court proceedings both on his own behalf and, on multiple occasions, has been granted leave to appear on behalf of Kotabi.[23]
[23]R v Hoser [2001] VSC 443; Hoser v The Queen [2003] VSCA 194; Pelley v Kotabi Pty Ltd [2021] VCC 1425; Hoser v Herald and Weekly Times Pty Limited & Anor (Ruling) [2022] VCC 2213; Hoser v Herald and Weekly Times Pty Limited & Anor (Ruling No 2) [2023] VCC 209; Hoser v ABC & Ors (Ruling) [2022] VCC 1664; Hoser v Pelley (No 2) [2023] VSCA 14; Hoser v Pelley (No 3) [2023] VSCA 257; Hoser v Pelley (No 4) [2023] VSCA 319; Hoser v Secretary of the Department of Energy, Environment and Climate Action [2024] VSC 227; Hoser v Prospero Productions Pty Ltd & Ors [2024] FCA 1376 and Hoser v Pelley & Anor [2024] HCASL 74.
In the course of the proceeding before the County Court that led to the County Court Decision and the Court of Appeal Decision, various suppression and non-publication orders appear to have been made. Whilst it is impossible to ascertain with any certainty the scope of those orders, owing to the manner in which Mr Hoser has filed voluminous material on behalf of Kotabi, it appears, based on the Written Outline, that Mr Hoser is at least cognisant of the fact that there remains a non-publication Order of Croucher J made in OP v XY.[24] Mr Hoser challenges the validity of that order and, after filing his affidavits and Written Outline in the proceeding before me, sought relief from compliance with the Order of Croucher J.[25] The relevant paragraphs of Mr Hoser’s Written Outline are paragraphs 79 to 87. I will not reproduce them here.
[24][2020] VSC 754.
[25]Transcript of Proceedings (24 February 2025) 14.9-14.29.
These matters suggest to me that Mr Hoser understands the effect of a non-publication order. Mr Hoser did not press any application at the hearing before me in relation to the Order of Croucher J. Had he done so, I would have declined to entertain such an application.
Mr Hoser and Kotabi have also previously been convicted of contempt by scandalising the Court.[26]
[26]R v Hoser [2001] VSC 443.
Having regard to Mr Hoser’s prior interactions with the Court, I have formed the view that Mr Hoser understands:
(a)the general nature and effect of a non-publication order;
(b)the difference between a restricted and non-restricted judgment;
(c)the implications of putting material before the Court which is scandalous; and
(d)the implications (or potential implications) of putting material before the Court for which there is no proper basis.
Ultimately, Mr Hoser said he was prepared for parts of the Third Hoser Affidavit to be redacted if that was what the Court wanted.[27] I do not regard this as being any form of concession by Mr Hoser on behalf of Kotabi. He did not disavow himself of the matters set out in the Third Hoser Affidavit and Written Outline.
[27]Transcript of Proceedings (24 February 2025) 21.16-22.18; 38.3-38.14; 41.19-42.13.
In order to proceed with the hearing efficiently, to preserve the dignity of the Court, and to protect the privacy of non-parties to whom Mr Hoser’s evidence and submissions concerned, I made orders pursuant to r 28.05 of the Rules that the Third Hoser Affidavit and Written Outline be marked confidential and otherwise indicated that I would deal with the issue of what should occur with Mr Hoser’s affidavits and Written Outline in my judgment.
The Court has inherent jurisdiction in civil matters to make confidentiality orders in legal proceedings. This may include an order restricting access to the Court file - a power not limited by the Open Courts Act 2013 (Vic), despite s 4 of the legislation establishing a presumption in favour of disclosure, in aid of strengthening and promoting the principles of open justice and free communication of information.
Rules 28.05(2) and (3) of the Rules provide that certain documents filed in a proceeding, including affidavits, exhibits to affidavits and witness statements, may not be inspected by any person not a party without leave of the Court, until the document has been read or relied on in open court, or relied on in an application determined without a hearing. However, r 28.05(4) provides that no person may inspect or obtain a copy of a document that the Court has ordered remain confidential. Relevant considerations relating to the operation of r 28.05 were identified by J Forrest J in In the Matter of Proceeding No 3159 of 1970[28], as follows:
In determining whether to grant the application, the court must consider:
(i)whether the interest of the applicant in accessing the file and the purpose for which the applicant intends to use information in the file is proper or appropriate; and
(ii)the confidentiality of any information contained in the file and the effluxion of time as it relates to the consequence of any disclosure upon the privacy of parties and relevant non-parties, and the extent to which that privacy may be compromised.
Overall, the court must consider the utility of granting the access sought in all the prevailing circumstances.
[28][2015] VSC 61, [8] (citations omitted).
In Bougainville Copper Limited v RTG Mining Inc and Anor,[29] Mukhtar AsJ identified the relevant considerations as: issues of confidentiality or privacy; the content of the file; the interest and purposes of the applicant; the utility of permitting the access sought; and whether conditions should be imposed.
[29][2018] VSC 499, [18].
Having regard to the types of matters interspersed throughout the entirely of the material filed on behalf of Kotabi, including material:
(a)that might scandalise the Court;
(b)in the form of judgments which are marked as restricted;
(c)that contains prejudicial insinuations and allegations in respect of non-parties; and
(d)that identifies the victim of an alleged sexual assault (who may be a minor) who is not a party to the proceeding,
I am of the view that these matters outweigh the interests of open justice and required a confidentiality order.
Additionally, in light of the observations I have made above in relation to Mr Hoser’s knowledge and conduct, I do not intend to provide Mr Hoser or Kotabi with a further platform to ventilate scandalous commentary, or to engage in a continued disregard of previous non-publication orders or restrictions imposed by the Court on the publication of its judgments. Moreover, I do not intend to expend judicial time, and scarce public resources, engaging with Kotabi’s assertions that have no legal foundation or application to the questions which I must determine. I am satisfied that the appropriate course in this matter is for the confidentiality orders I made at the hearing on 24 February 2025 to remain in place, and for those orders to apply to the entire Court file. Any person wishing to access the Court file can make application to a Judge or Associate Judge of the Court to do so.
I otherwise note that in the hearing before me, Mr Robertson, on behalf of Mr Pelley, objected to the admissibility of the various parts of Kotabi’s evidence both in the context of any grant of leave to Mr Hoser to represent Kotabi and more generally. I have considered those objections and am of the view that the appropriate course is for the Court to read the entirety of the evidence filed on behalf of Kotabi and for it to be given the appropriate weight it deserves.
Non contentious factual matters
The parties operate competing snake catching and reptile businesses and have a protracted and acrimonious litigious history which is of some relevance to the circumstances of this application.
On 22 March 2019, Mr Pelley commenced a defamation action against Kotabi and Mr Hoser in the County Court of Victoria. This was the original proceeding that was the subject of the County Court Decision. Mr Pelley alleged that Kotabi and Mr Hoser had defamed him in 17 publications. Of those publications, five were not pressed and the trial judge, sitting alone, dismissed the claims in relation to another two. After 25 sitting days, Mr Pelley succeeded at first instance in relation to the remaining ten publications and damages were awarded in the sum of $179,000.00.[30]
[30]Pelley v Kotabi Pty Ltd [2021] VCC 1425.
Kotabi and Mr Hoser appealed the County Court Decision to the Court of Appeal.
On 1 November 2023, McLeish and Walker JJA and Elliott AJA found that the trial judge had erred in finding that one of the publications identified Mr Hoser.[31]
[31]Hoser v Pelley [No 3] [2023] VSCA 257.
On 14 December 2023, McLeish and Walker JJA and Elliott AJA varied the sum of the damages awarded to Mr Pelley in the County Court Decision from $179,000.00 to $171,000.00 (‘Judgment Debt’).[32]
[32]Hoser v Pelley [No 4] [2023] VSCA 319.
Subsequently, Mr Hoser filed an application for special leave with the High Court of Australia seeking to appeal the Court of Appeal Decision.
On 11 April 2024, Gordon and Steward JJA made an order refusing special leave. Consequently, Mr Hoser and Kotabi remained jointly and severally liable to pay Mr Pelley the Judgment Debt.
On or about 17 September 2024, the Demand was served on Kotabi.
In response to the Demand, Kotabi commenced this proceeding on 2 October 2024, seeking to have the Demand set aside on the basis of an alleged genuine dispute or offsetting claim.
At around the same time, on 26 September 2024, Mr Hoser was served with bankruptcy notice BN271729 by Mr Pelley, demanding payment of the sum of $171,000.00 (‘Bankruptcy Notice’). The sum in the Bankruptcy Notice reflects that of the Judgment Debt.
On 5 October 2024, Mr Hoser commenced an application in the Federal Circuit and Family Court of Australia (Division 2) (‘FCFCOA’) to set aside the Bankruptcy Notice. As the compliance date with the Bankruptcy Notice was 17 October 2024, the application was made within the time required under s 41(6A)(b) of the Bankruptcy Act 1966 (Cth) (‘Bankruptcy Act’). Pursuant to s 41(7) of the Bankruptcy Act, the time for compliance with the Bankruptcy Notice was extended until and including the day on which a determination was made by the Court.
Mr Hoser sought to set aside the Bankruptcy Notice on the basis that he had a counter claim, set-off or cross demand within the meaning of s 41(7) of the Bankruptcy Act. Pursuant to s 41(7) of the Bankruptcy Act, the offsetting claim must be one that is referred to in s 40(1)(g), that is one which is equal to or exceeds the Judgment Debt, and which Mr Hoser could not have set up in the original proceeding.
On 20 January 2025, the Registrar dismissed Mr Hoser’s application finding that Mr Hoser had not met all of the requirements in s 41(7) of the Bankruptcy Act. Specifically, the Registrar held that Mr Hoser had not proven that he had an offsetting claim of the type in s 40(1)(g) of the Bankruptcy Act, which he could not have brought in the original proceeding, and which was equal to or exceeded the amount of the Judgment Debt.
Mr Pelley’s creditor’s petition and application for sequestration of the estate of Mr Hoser in the Federal Court of Australia was, at the time of this application coming before me, tentatively listed for 20 March 2025. Mr Hoser informed the Court at the hearing that he had filed an appeal in respect of the Registrar’s ruling, which appeal was listed in May 2025.
Other factual matters
Mr Hoser has also commenced other proceedings in the FCFCOA which traverse some of the matters which were sought to be agitated in the proceeding before me and which were brought to my attention by the parties at the hearing.
On 14 March 2023, Mr Hoser commenced proceeding MLG400/2023 in the FCFCOA (‘MLG400/2023’) against Anthony Harrison and Meta concerning material posted by Mr Harrison on Facebook and Instagram pages. Kotabi is not a party to that proceeding. By proceeding MLG400/2023, Mr Hoser contends that Mr Harrison has engaged in conduct in contravention of Schedule 2 of the Competition and Consumer Act 2010 (Cth) and published material which conveys defamatory imputations. Mr Hoser further alleges that Mr Harrison’s conduct constituted conduct by Meta, because, amongst other matters, Meta being the owner and controller of the Facebook and Instagram platforms, was in a position to, but refused, to remove the allegedly offending content when asked to do so.
On 16 May 2024, in MLG400/2023, Judge Manousaridis published reasons for decision in Hoser v Harrison.[33] The decision considered whether Mr Hoser had any reasonable prospects of success on his claims against Meta and whether any of the alleged challenged imputations should be struck out. Whilst the outcome of the application before Judge Manousaridis is not of consequence to the application before me, I observe that the following matters, which were extracted from Mr Hoser’s statement of claim in MLG400/2023, are recorded in his Honour’s reasons:[34]
[33][2024] FedCFamC2G 436.
[34]Hoser v Harrison [2024] FedCFam2G 436, [51]—[52] and [77] (citations omitted).
[51] Mr Hoser, who is known as “Snake Man®”:
(a)is a licensed snake catcher, a reptile demonstrator in the State of Victoria, and trainer of dogs in snake avoidance;
(b)is the owner of the “Snake Avoidance” registered trade mark;
(c)has operated a wildlife rescue and conservation business for more than three decades;
(d)before 1989 registered in New South Wales the business name “Death Adder Services”;
(e)is the owner of the company Kotabi Pty Ltd, which uses the registered business name “Snakebusters” and dozens of registered trade marks, including “Snakeman”, “Snake catcher”, “Snakebusters”, “Reptile Party”, “Snake man” and “Reptile parties”.
[52]On 1 October 2021 Mr Hoser transferred the trade marks to the third respondent, Ms Hoser, who licensed to Mr Hoser to use the trade marks as if Mr Hoser owned them, and with full legal rights to take legal action to protect them as if he were their owner.
…
[77] Mr Hoser is the owner of the registered trademarks “Snake man”, “Snakeman”, “reptile parties”, and “reptile party”.
On 30 September 2024, Mr Hoser commenced proceeding MLG3335/2024 (‘MLG3335/2024’) in the FCFCOA against Mr Pelley and a number of other respondents. The nature of that proceeding is essentially a breach of trademark case. A copy of the statement of claim filed by Mr Hoser on 3 October 2024 was tendered in evidence before me. In so far as it is relevant to the matters before me, in his statement of claim, Mr Hoser pleads that:
3. The applicant also has the common law trademarks as well.
…
11. Raymond Hoser has also owned or controlled the Australian registered trademark “snake man” (TM no. 1214301) for decades in all relevant classes of goods and services for working with wildlife, information, online, etc.
…
12. This information can be confirmed from the ASIC register and the government trademarks register at IP Australia and their website at ipaustralia.gov.au.
13. Ownership of the applicant’s trademarks were recently transferred to Adelyn Hoser on 1 Oct 2021, who licensed Raymond Hoser to use the trademarks as if he owned them on the same date and with full rights to take legal actions to protect them as if owner.
14. Raymond Hoser also owns common law rights to all the preceding trademarks and other relevant trademarks referred to below.
15. The words trademarks relevant to these proceedings (all transferred from the applicant Raymond Hoser to Adelyn Hoser on 1 Oct 2021, but for which Raymond Hoser retains usage and enforcement rights under license), all being registered for relevant goods and services being broadly inclusive of entertainment, education, as well as handling animals in all ways are as follows:
16. Snakebusters, Word, TM No. 912066 registered from 7 May 2002,
17. Snakebuster, Word, TM No. 963988 registered from 3 July 2003,
18. Snakebuster, Word, TM No. 964068 registered from 31 July 2023,
19. Snakeman, Word, TM No. 1175589 registered from 11 May 2007,
20. Snake Man, Word, TM No. 1214301 registered from 7 December 2007,
21. Australia’s best reptiles, Word, TM No. 1280618 registered from 9 Jan 2009,
22. Hands on reptiles, Word, TM No. 1345207 registered from 11 Feb 2010,
23. Hold the animals, Word, TM No. 1361154 registered from 12 May 2010,
24. Handle the animals, Word, TM No. 1386348 registered from 30 September 2010,
25. Raymond Hoser, Word, TM No. 1427566 registered from 27 May 2011,
26. Reptile Parties, Word, TM No. 1471562 registered from 28 June 2012,
27. Reptile Party, Word, TM No. 1613238 registered from 24 March 2014,
28. Hands on, Word, TM No. 1653865 registered from 22 October 2014,
29. The logos trademarks relevant to these proceedings, also all being registered for relevant goods and services being broadly inclusive of entertainment, education, as well as handling animals in all ways are as follows:
30. Snake Catcher, Logo, TM No. 1436529 registered from 13 July 2011,
31. Snake Handler, Logo, TM No. 1436530 registered from 13 July 2011,
32. Reptile Shows, Logo, TM No. 1634315 registered from 14 July 2014,
33. Snake Removal, Logo, TM No. 1819349 registered from 7 January 2017,
34. Snake Avoidance, Logo, TM No. 1869367 registered from 29 August 2017,
35. Snake Aversion, Logo, TM No. 1912645 registered from 11 March 2018,
36. Reptile Man, Logo, TM No. 1909465 registered from 26 Feb 2018.
In neither MLG400/2023 nor MLG3335/2024 does Mr Hoser suggest that Kotabi has any present legal or beneficial interest in any trademark associated with Mr Hoser’s snake catching, removal, avoidance or training businesses.
Legal principles
The legal principles applicable to applications under s 459G of the Act are well‑established and uncontroversial. A company seeking to set aside a statutory demand on the basis that there is a genuine dispute bears the onus of establishing, on the balance of probabilities, that such a dispute exists.[35] The Court of Appeal in Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq)[36] summarised the principles applicable in applications to set aside statutory demands as follows:[37]
47.The terms of s 459H of the Corporations Act and the authorities make clear that, on an application to set aside a statutory demand, the applicant is required only to establish a genuine dispute or offsetting claim. The applicant is required to evidence the assertions relevant to the alleged dispute or offsetting claim only to the extent necessary for that primary task. It is not necessary for the applicant to advance a fully evidenced claim. Therefore, the task faced by an applicant is by no means at all a difficult or demanding one.
48.In determining such an application, it is not necessary or appropriate for a court to engage in an in-depth examination or determination of the merits of the alleged dispute. This is because an application alleging a genuine dispute or offsetting claim is akin to one for an interlocutory injunction and requires the applicant to establish that there is a ‘plausible contention requiring investigation’ of the existence of either a dispute as to the debt or an offsetting claim. It is therefore not helpful to perceive that one party is more likely than the other to succeed or that the eventual state of the account between the parties is more likely to be one result than another. Further, the determination of the ‘ultimate question’ of the existence of the debt at a substantive hearing should not be compromised.
49.The court is required to determine whether the dispute or offsetting claim is ‘genuine’. It has been said that the criterion of a ‘genuine’ dispute requires that the dispute be bona fide and truly exist in fact and that the grounds for alleging the existence of a dispute be real and not spurious, hypothetical, illusory or misconceived. It has also been observed that the dispute or offsetting claim should have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion. It must also have sufficient factual particularity to exclude the merely fanciful or futile. A rigorous curial approach is essential to the effective operation of the statutory scheme.
50.The court is not required to accept uncritically every statement in an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be, as it may not have sufficient prima facie plausibility to merit further investigation as to its truth. The court is also not required to accept uncritically a patently feeble legal argument or an assertion of facts unsupported by evidence, although this should not be read as suggesting that the applicant must formally or comprehensively evidence the basis of its dispute or off-setting claim. Except in such extreme cases, the court should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on by the applicant to set aside a statutory demand.
51. Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd involved a demand for payment of a debt alleged to be due under a contract for the supply of goods. The applicant relied on four matters, each of which had the potential to affect the respondent’s entitlement to be paid the entire amount of the debt. Barrett J held that all four matters were sufficiently plausible to raise a genuine dispute. He relevantly stated:
The [applicant] will fail in [the] task [of establishing a genuine dispute] only if … the contentions upon which it seeks to rely … are so devoid of substance that no further investigation is warranted. Once the [applicant] shows that even one issue has a sufficient degree of cogency to be arguable, a finding of genuine dispute must follow. The court does not engage in any form of balancing exercise between the strengths of competing contentions. If it sees any factor that, on rational grounds, indicates an arguable case on the part of the [applicant], it must find that a genuine dispute exists, even where any case apparently available to be advanced against the [applicant] seems stronger.
[35]Re Speedy Loans Pty Ltd [2014] VSC 273, [17].
[36][2015] VSCA 330 (‘Malec’).
[37]Ibid, [47]-[51] (citations omitted).
Offsetting claims are dealt with in s 459H of the Act, which provides:
(1)This section applies where, on an application under section 459G, the Court is satisfied of either or both of the following:
(a)that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates;
(b) that the company has an offsetting claim.
…
(5)a genuine claim that the company has against the respondent by way of counterclaim, set-off or cross-demand (even if it does not arise out of the same transaction or circumstances as a debt to which the demand relates).
The principles in relation to what constitutes an offsetting claim are well known and settled.
In TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd,[38] Dodds-Streeton JA referred to the principles that are to be taken into account in determining a genuine dispute and off‑setting claim. Her Honour said:[39]
As the terms of s 459H of the Corporations Act and the authorities make clear, the company is required, in this context, only to establish a genuine dispute or off-setting claim. It is required to evidence the assertions relevant to the alleged dispute or off-setting claim only to the extent necessary for that primary task. The dispute or off-setting claim should have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion, and sufficient factual particularity to exclude the merely fanciful or futile. As counsel for the appellant conceded however, it is not necessary for the company to advance, at this stage, a fully evidenced claim. Something “between mere assertion and the proof that would be necessary in a court of law” may suffice…
[38](2008) 66 ACSR 67 (Dodds-Streeton JA, Neave JA agreeing, [1] and Kellam JA agreeing, [2]).
[39]Ibid, [71] (Dodds-Streeton JA).
It is clear, therefore, that for a statutory demand to be set aside by reason of a dispute over the existence or amount of the debt or by reason of an offsetting claim, that the dispute or offsetting claim (as the case may be) must be genuine.[40] The qualifier of ‘genuine’ applies to both the dispute and the offsetting claim.[41]
[40]Malec (n 36), [49].
[41]In2Ply Pty Ltd v Amerind Pty Ltd (in liq) (recs and mgrs apptd) (2014) 32 ACLC 14-075, 939–940 [31], citing Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91.
In Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd,[42] the New South Wales Court of Appeal identified some further principles applicable to establishing an offsetting claim:
(a)s 459H requires the court to be satisfied that there is a serious question to be tried’, or ‘an issue deserving of a hearing’ as to whether the company has such a claim against the creditor;[43]
(b)the claim must be made in good faith with good faith understood to mean that the offsetting claim was arguable on the basis of facts that were asserted ‘with sufficient particularity to enable the court to determine that the claim is not fanciful’;[44]
(c)there must be evidence that satisfies the court that there is ‘a serious question to be tried’, or ‘an issue deserving of a hearing’, or a ‘plausible contention requiring investigation’ of the existence of either a dispute as to the debt or an offsetting claim;[45]
(d)evidence sufficient to satisfy this test, given the time period in which the affidavit must be filed, cannot and need not conclusively prove the claim or otherwise be incontrovertible or substantially non‑contestable;[46]
(e)hearsay evidence may be admissible provided evidence of the source of the hearsay is adduced;[47]
(f)the court’s concern is to determine whether there was plausible evidence to establish the existence of a genuine dispute, not whether the evidence was disputed or even likely to be accepted on a final hearing of any such claim;[48]
(g)the specified limits of the court’s examination are the ascertainment of whether there is a ‘genuine dispute’ and whether there is a ‘genuine claim’. It is often possible to discern the spurious, and to identify mere bluster or assertion. But beyond a perception of genuineness (or the lack of it) the court has no function.[49]
[42](2013) 85 NSWLR 601.
[43]Ibid, [30] (citations omitted).
[44]Ibid.
[45]Ibid, [36].
[46]Ibid.
[47]Ibid, [37] (citations omitted).
[48]Ibid, [47] (citations omitted).
[49]Ibid, [48] (citations omitted).
Similar observations were made by Barrett J in Panel Tech Industries (Australia) Pty Ltd v Australian Skyreach Equipment Pty Ltd (No 2),[50] who held:
Once the company shows that even one issue has a sufficient degree of cogency to be arguable, a finding of genuine dispute must follow’. The court does not engage in any form of balancing exercise between the strengths of competing contentions. If it sees any factor that, on rational grounds, indicates an arguable case on the part of the company, it must find that a genuine dispute exists, even where any case apparently available to be advanced against the company seems stronger.[51]
[50][2003] NSWSC 896.
[51]Ibid, [18].
Additionally, the offsetting claim must be capable of quantification, to enable the Court to perform the exercise required under s 459H(2) of the Act in calculating the ‘substantiated amount’. In relation to quantifying offsetting claims, and adopting Hetyey AsJ in ReSimmoll Pty Ltd, [52] the following principles also apply:[53]
…
(a)a genuine offsetting claim ‘means a claim on a cause of action advanced in good faith, for an amount claimed in good faith’. In this context, ‘good faith’ means arguable on the basis of facts asserted with sufficient particularity to enable the Court to determine that the claim is not fanciful;
(b)there must be some evidence to indicate the nature of the offsetting claim and the way in which it is calculated, including any loss which is said to arise;
(c)however, it is not necessary to particularise the offsetting claim to the last ‘dollar and cent’. The evidence need only be sufficient for the Court to make an estimate of the amount of the offsetting claim, which must be capable of being quantified in monetary terms.
[52][2021] VSC 693.
[53]Ibid, [15] (citations omitted).
Plaintiff’s key submissions
In its originating process, Kotabi identified the following grounds as being the basis upon which it sought to set aside the Demand:
1.The respondent claims a debt of $171K for a defamation judgment award by the Supreme Court of Victoria against Raymond Hoser and Kotabi P/L (ACN 007 395 048), the award not being divided in any way, making both Raymond Hoser and Kotabi P/L effectively liable.
2.Raymond Hoser is the sole director of Kotabi P/L and therefore seeks leave of the court to represent both Kotabi P/L and himself in person in the proceedings against Mark PELLEY.
3.The respondent Mark David PELLEY, along with his mother, [REDACTED] and one of his daughters, [REDACTED] has a debt of 6 million dollars for registered trademarks use and infringement of not less than $6 million.
4.Kotabi P/L being fully owned by Raymond Hoser, and allowed by Hoser to trade using the relevant registered trademarks would be entitled to up to half the owed amount.
5.In addition the respondent Mark David PELLEY is being sued for $500K for defamation by Raymond Hoser.
6.There is an action that has been commenced in the Federal Family and Circuit Court to recover these monies, being the above-mentioned amounts for registered trademarks infringement and defamation.
7.The amount owed by Mark PELLEY to Kotabi P/L and Raymond HOSER is greater than the amount the applicant owes PELLEY and therefore under Section 459H and 459J of the Corporations Act 2001, the court must set aside the creditor’s statutory demand.
8.Mark PELLEY has claimed no income or money for many years and in 2024 claimed an annual income of $6 to avoid paying to maintain his [REDACTED].
9.It was understood that PELLEY would not seek to recover the $171K award and this would force HOSER to be unable to sue PELLEY for trademarks infringement or defamation on the basis of an impossibility of recovery of any debt.
10.This was even referred to by all parties during mediation in front of Judge My Anh Tran of the Victorian County Court.
11.Following the demand for payment of $171K for the debt by PELLEY earlier this month, the applicant has commenced proceedings in the Federal Family and Circuit Court for the relevant owed monies, the amount of which outweighs the claimed debt by PELLEY.
12.The launching of those Federal Family and Circuit Court proceedings were also delayed by virtue of the fact that legal issues relevant to those proceedings were in dispute in a related Federal Family and Circuit Court proceeding against one of PELLEY’s close associates (Tony HARRISON) and Facebook (Meta Inc.) also for defamation, trademark and breaches of the Australian Consumer Law, and were only resolved in August 2024, thereby greatly reducing the issues needed to be dealt with in the newer proceedings involving PELLEY.
13.The Federal Family and Circuit Court had refused to process a number of applications of mine pending resolution of issues in the HARRISON proceedings and similar issues in another matter involving Arthur GEORGES and others, whom I had sued for copyright matters and defamation, both of which had application to potential claims against PELLEY (for both copyright (Moral Rights) infringement and defamation).
14.The attached affidavit includes a copy of Mark PELLEY’s most recent income Statement received by [REDACTED], and for the PELLEY matter in the Federal Family and Circuit Court is included the Statement of Claim (minus exhibits) the relevant filed Affidavit, with exhibits, which are identical to those in the Statement of claim (saving duplication here).
15.These quite explicitly detail the actions leading to the valid claims against PELLEY, which carry an amount far in excess of what he claims in his “Creditor’s Statutory Demand For Payment of Debt”.
The grounds identified above and material facts on which Kotabi intends to rely to support the genuine dispute and/or offsetting claim, and which are discernible from the First Hoser Affidavit (being the twenty-one day affidavit) and/or the annexures and exhibits to it, appear to comprise three grounds:
(a)Ground 1: that the High Court did not grant leave to appeal from the Court of Appeal Decision and accordingly have ‘neither affirmed or quashed the lower court’s decision’;[54]
(b)Ground 2: because of the way the Court of Appeal Decision (and the relevant lower court decision was obtained) and because it was ‘manifestly wrong and in error and in so many ways’,[55] there is a legal basis to have the defendant’s claim ‘squashed or wiped’.[56] Mr Hoser urged upon me that my role was to ‘do the right thing and what was the law’ and correct the erroneous outcomes in the County Court of Victoria, Court of Appeal and High Court by quashing Mr Pelley’s actions. In so urging, Mr Hoser placed reliance on the decisions in Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (‘Australian Agricultural Co’)[57] and Dowling v Colonial Mutual Life Assurance Society Ltd.[58] Mr Hoser highlighted the following statement of Isaacs J in Australian Agricultural Co:[59]
The oath of a Justice of this Court is ‘to do right to all manner of people according to law.’ Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right.
(c)Ground 3: that there is a genuine offsetting claim in relation to the sum sought in the Demand because the defendant owes Kotabi and Mr Hoser a far greater amount of money in the form of the damages sought in the FCFCOA proceedings. Relatedly, Kotabi contends that it, being fully owned by Mr Hoser, and allowed by Mr Hoser to use the relevant registered trademarks, means it would be entitled to up to half the owed amount to Mr Hoser pursuant to the outcome of any FCFCOA proceeding.
[54]Affidavit of Raymond Hoser filed 30 January 2025, [6].
[55]Ibid, [9].
[56]Ibid.
[57](1913) 17 CLR 261, 278.
[58](1915) 20 CLR 509.
[59]Affidavit of Raymond Hoser filed 30 January 2025, [9].
Grounds 1 and 2: Genuine Dispute
It is convenient to deal with Grounds 1 and 2 together.
It is trite to observe that a lower court must follow the ratio decidendi of a decision of a higher court. Coherence in the law dictates as much. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (‘Farah Constructions’),[60] the High Court unanimously held that an intermediate appellate court should not develop the law in the face of ‘seriously considered dicta’ of a majority of the High Court, saying to do so would be a ‘grave error’.[61]
[60](2007) 230 CLR 89, 151 [134]; 159 [158] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) (citations omitted).
[61]Ibid 149, [131].
There is no merit to Kotabi’s submission that an inferior court or an Associate Judge has the power to reopen and decide afresh matters upon which the High Court has ruled. To do so would be a grave error and I reject Kotabi’s submission. I am not prepared to, nor is it appropriate that I revisit any of the underlying facts that were the subject of the County Court Decision and subsequent Court of Appeal Decision, or the ultimate determination by the High Court to refuse special leave.
Moreover, by reason of the operation of res judicata, there is no ability of the plaintiff to raise a genuine dispute in respect of judgments.[62] The operation of res judicata dictates that reliance on complaints about the Court of Appeal Decision and the High Court decision to decline to grant special leave does not comprise a reason to set aside the statutory demand.
[62]BarclaysAustralia (Finance) Ltd v Mike Gaffikin Marine Pty Ltd (1996) 21 ACSR 235.
It must follow, then, that there can be no genuine dispute between Kotabi and Mr Pelley about the existence or amount of the debt to which the Demand relates. The debt was a judgment debt for a fixed amount given in the Court of Appeal. Any appeal rights in respect of the judgment debt were exhausted when the High Court declined to grant special leave. There is no basis upon which I should, or am permitted to, revisit the decisions of the Court of Appeal or High Court. Section 459H(1)(a) of the Act is therefore irrelevant.
For completeness, I otherwise note that Australian Agricultural Co, to which the plaintiff relies and is referred to in the First Hoser Affidavit, concerned the circumstances in which the High Court can overrule its previous decisions. Briefly, the case considered the validity of certain agreements for the settlement of an industrial dispute and the extent to which these agreements could be enforced as either an industrial agreement within Part VI of the Commonwealth Conciliation and Arbitration Act 1904 (Cth), or an agreement at common law. The question was relevant to the High Court’s determination on whether it could grant an injunction to restrain the defendant from proceeding against the plaintiff in proceedings in the Commonwealth Court of Conciliation and arbitration in respect of an industrial dispute.
Australian Agricultural Co considered C Williamson Ltd v Musicians Union of Australia (‘C Williamson’),[63] where the High Court had found that it had jurisdiction by injunction to restrain the defendant from instituting proceedings in the Commonwealth Court of Conciliation. In overruling C Williamson, the High Court in Australian Agricultural Co held that:
(a)an agreement purporting to prevent the parties to it or either of them from instituting proceedings in the Commonwealth Court of Conciliation and Arbitration is contrary to public policy, and therefore void (Isaacs, Higgins, Gavan Duffy and Rich JJ);
(b)the agreement was meant to operate under Part VI of the Commonwealth Conciliation and Arbitration Act 1904 (Cth), and being impossible of performance, it could not be enforced (Higgins JJ);
(c)the High Court is not bound by its own prior decisions, and if in the Court’s opinion a prior decision is manifestly wrong it is the duty of the Court to overrule that decision (Isaacs and Higgins JJ); and
(d)C Williamson was wrongly decided and must be overruled (Barton ACJ and Powers J dissenting).
[63](1912) 15 CLR 636.
Australian Agricultural Co has no application to the facts before me.
Ground 3: Offsetting Claim
The evidence on which Kotabi relies in support of its claim that it has an offsetting claim is, in so far as I can discern it, set out in the following paragraphs of the First Hoser Affidavit:
23.The respondent Mark David PELLEY, along with his mother, [REDACTED] and one of his daughters [REDACTED] has a debt of not less than 6 million dollars for registered trademarks use and infringement.
24.That is a conservative figure and in reality, he should pay far more.
25.However, 6 million dollars is what I have claimed in recently launched proceedings in the Federal Family and Circuit Court. for the trademarks infringement.
…
62.There is an action that has been commenced in the Federal Family and Circuit Court to recover these monies, being the above-mentioned amounts being for registered trademarks infringement and defamation
…
76.Pelley has used this and other trademarks of mine, without authorisation many thousands of times and at times and places calculated cause the most possible harm to me and my business, indicating that the $6 million claim against him is a very moderate and conservative demand.
77.I have attached the affidavit of 30 September 2024, Appendix 4 in the case of Hoser V Pelley and others In the Federal Family and Circuit Court as Appendix 4 as it details the claims against him in detail (including with the use of important exhibits) so that the court can assess the material and use it as a basis to strike out Pelley’s “Creditor’s Statutory Demand For Payment of Debt” against Kotab1 Pty Ltd and/or myself, Raymond Haser.
As to how that alleged offsetting claim is a claim of Kotabi’s, the First Hoser Affidavit states:
59.Because Kotabi P/L Is fully owned by me Raymond Haser [sic], and allowed by me, Raymond Haser [sic] to trade using the relevant registered trademarks I own, it would be entitled to up to half the owed amount Pelley owes.
60.In addition the respondent Mark David PELLEY is being sued for $500K for defamation by me, Raymond Hoser.
61.In other words, PELLEY owes both Kotabi P/L and myself Raymond Haser [sic] more than Kotabi P/L and I owe him, no matter how the numbers are spun.
…
63.The amount owed by Mark PELLEY to Kotabi P/L and Raymond HOSER is greater than the amount the applicant owes PELLEY and therefore under Section 459H and 459J of the Corporations Act 2001, which I have read, the court must set aside the creditor’s statutory demand.
…
69.Following the demand for payment of $171K for the debt by PELLEY early in September 2024, the applicant (me, Raymond Haser [sic]), has commenced proceedings in the Federal Family and Circuit Court for the relevant owed monies, the amount of which outweighs the claimed debt by PELLEY.
Additionally, Kotabi’s Written Outline states:
3.Neither HOSER or Adelyn Hoser have licensed him to trade as “Reptile Party” which is our registered word trademark and predates PELLEY’s entry to the wildlife demonstration business.
…
25.Raymond Hoser controls Raymond Hoser, not Kotabi. Furthermore Kotabi is controlled by Raymond Hoser as well.
…
32.It is therefore wholly appropriate that the offsetting claim against him filed by HOSER in 2024 be treated as including being lodged by KOTABI, the entity that has suffered as a result of PELLEY’s trademark infringement and breach of ACL activities or on behalf of KOTABI P/L with KOTABI P/L an obvious beneficiary of the damages likely to accrue (to be payable by PELLEY and his cohort and business enterprises that have been sued).
33.It is also highly relevant that the main reason KOTABI did not join the trademarks and ACL action against PELLEY as plaintiff party/ies is that because of PELLEY’s own conduct he had caused financial ruin for both, thereby precluding KOTABI P/L from being physically able to sue PELLEY as the company cannot afford to pay lawyers as would normally be required.
34.It is established in law that a plaintiff should not be precluded from litigation by virtue of lack of funds and yet PELLEY seeks to prevent KOTABI from litigating this case solely on this basis.
…
46.It is not denied by PELLEY that Kotabi was licensed to use the relevant trademarks at all materially relevant times prior to Oct 2021, which is when half the infringing conduct and ACL breaches by PELLEY occurred as detailed in the relevant Statement of Claim (MLG335/2024) and originating affidavit, the latter of which has already been filed in these proceedings (which I note PELLEY wrongly claims is “irrelevant”).
47.This makes PELLEY effectively liable to KOTABI P/L for up to half the amount claimed, which exceeds PELLEY’s claim herein by several orders of magnitude.
48.In any event, PELLEY provides no evidence of any sort to suggest that Kotabi is either not authorized by Raymond or Adelyn Hoser postdating 2021 to use the registered trademarks, or to be actioned for doing so.
…
104.1/ It is appropriate for the court to treat the matter of MLG3335/2024 as an appropriate offsetting claim in excess of the money owed by Kotabi P/L and that will be used to repay Kotabi any debts alleged by PELLEY.
105.2/ Raymond HOSER has explicitly and implicitly given Kotabi P/L relevant trademark usage rights as required at all relevant times and as a matter of course Kotabi P/L would be expected to share the spoils of the Federal Court win in MLG3335/2024.
106.3/ The reason for non-inclusion of Kotabi as an explicit party in MLG3335/2024 is due entirely to PELLEY’s actions over the previous 6 years as detailed in the Statement of claim leading to the inability of Hoser and/or Kotabi P/L to afford a lawyer to fight the case.
…
109.4/ Because there is in this matter a valid claim against PELLEY, it is entirely appropriate that Kotabi be treated as effective co-litigant in MLG3335/2024 in terms of sharing the spoils of the win (in exactly the same was as in the SMITH matter and appeals) and this makes the offsetting claim against PELLEY in this matter valid and notable because PELLEY caused the current impecuniousity [sic] of Kotabi P/L.
…
114.Noting PELLEY wholly caused the impecuniousity [sic] of Kotabi P/L and yet Kotabi P/L is An effective shareholder in the valid Federal Court claim against him (Raymond Hoser is the sole and only shareholder in the company), it is entirely appropriate that the Statutory demand of PELLEY be either struck out or stayed pending the resolution of MLG3335/2024.
In respect of Kotabi’s alleged offsetting claim, it is notable that exhibited to the First Hoser Affidavit is a copy of an affidavit sworn by him in MLG3335/2024 on
30 September 2024, in which he, as the sole named applicant, deposes that:
16. Raymond Hoser has also owned or controlled the Australian registered trademark “snake man” (TM no. 1214301) for decades in all relevant classes of goods and services for working with wildlife, information, online, etc.
17. This information can be confirmed from the ASIC register and the government trademarks register at IP Australia and their website at ipaustralia.gov.au.
18. Ownership of my trademarks were recently transferred to Adelyn Haser [sic] on 1 Oct 2021, who licensed me, Raymond Haser [sic] to use the trademarks as if I/he owned them on the same date and with full rights to take legal actions to protect them as if owner.
19. I, Raymond Haser [sic] also owns common law rights to all the preceding trademarks and other relevant trademarks referred to below.
20. The words trademarks relevant to these proceedings (all transferred from me as the applicant Raymond Haser [sic] to Adelyn Haser [sic] on 1 Oct 2021, but for which I, Raymond Haser [sic] retains usage and enforcement rights under license), all being registered for relevant goods and services being broadly inclusive of entertainment, education, as well as handling animals in all ways are as follows:
21. Snakebusters, Word, TM No. 912066 registered from 7 May 2002,
22. Snakebuster, Word, TM No. 963988 registered from 3 July 2003,
23. Snakebuster, Word, TM No. 964068 registered from 31 July 2023,
24. Snakeman, Word, TM No. 1175589 registered from 11 May 2007,
25. Snake Man, Word, TM No. 1214301 registered from 7 December 2007,
26. Australia’s best reptiles, Word, TM No. 1280618 registered from 9 Jan 2009,
27. Hands on reptiles, Word, TM No. 1345207 registered from 11 Feb 2010,
28. Hold the animals, Word, TM No. 1361154 registered from 12 May 2010,
29. Handle the animals, Word, TM No. 1386348 registered from 30 September 2010,
30. Raymond Hoser, Word, TM No. 1427566 registered from 27 May 2011,
31. Reptile Parties, Word, TM No. 1471562 registered from 28 June 2012,
32. Reptile Party, Word, TM No. 1613238 registered from 24 March 2014,
33. Hands on, Word, TM No. 1653865 registered from 22 October 2014,
34. The logos trademarks relevant to these proceedings, also all being registered for relevant goods and services being broadly inclusive of entertainment, education, as well as handling animals in all ways are as follows:
35. Snake Catcher, Logo, TM No. 1436529 registered from 13 July 2011,
36. Snake Handler, Logo, TM No. 1436530 registered from 13 July 2011,
37. Reptile Shows, Logo, TM No. 1634315 registered from 14 July 2014,
38. Snake Removal, Logo, TM No. 1819349 registered from 7 January 2017,
39. Snake Avoidance, Logo, TM No. 1869367 registered from 29 August 2017,
40. Snake Aversion, Logo, TM No. 1912645 registered from 11 March 2018,
41. Reptile Man, Logo, TM No. 1909465 registered from 26 Feb 2018.
…
AND BASED ON MY ASSESSMENT OF THE MATTER, I, THE APPLICANT CLAIMS (RELEVANT ORDERS SOUGHT)
1. A written finding that the first respondent Mark Pelley defamed me.
2. A written finding that all the respondents infringed one or more of my trademarks in breach of S120 of the Trade Marks Act 1995.
3. A written finding that the first, second and fourth respondents by use of my trademarks in the ways they have, along with other forms of copying the business details of me has as a cause of action breached the Australian Consumer Law which is legislated in schedule 2 of the Competition and Consumer Act 2010 (Cth).
4. Damages of $6.5 million for the first, second, fourth and fifth respondents (as a group), being $6 million for the registered trademarks infringement and/or misleading and deceptive conduct and $500K for the defamation.
5. The third respondent must pay me $100K for trademarks infringement and/or mis1eading and deceptive conduct.
6. The sixth respondent must pay me $100K for trademarks infringement and/or misleading and conduct.
7. An order restraining all the respondents or agents from using the words any of the registered trademarks of me or Adelyn Haser [sic] as listed in the associated Statement of claim.
8. A further order that the first respondent pay a further $1 million punitive / aggravated damages for \trademarks infringement noting he had been aware of the applicant’s excusive ownership of the registered trademarks at all materially relevant times and made my life hell, by various means, for several years to give him cover to engage in non-stop. infringement and destruction of my lawful’ business.
9. Costs and Interest.
10. Other orders as the court sees fit.
Mr Hoser’s affidavit in MLG3335/2024 is drawn in strikingly similar terms to the statement of claim filed by him in that proceeding, to which I have already referred at paragraph 53 above.
Having considered these affidavits, submissions and the pleading in MLG3335/2024, it appears that the essence of Kotabi’s submission is that Kotabi and Mr Hoser are effectively one and same, with the company controlled by Mr Hoser. To this end, before me, Mr Hoser on behalf of Kotabi submitted that:[64]
MR HOSER: It’s not a named party, but it is a - would be a beneficiary of the payment, and as I have explained in my submissions overnight quite explicitly, and implicitly prior, the reason Kotabi was not listed as a co-litigant with Raymond Hoser, because, as Mr Pelley and Mr Robertson and the various judges all through the previous matter asserted, Raymond Hoser and Kotabi are one and the same thing. Everything Raymond Hoser does is as a servant of Kotabi and vice versa.
So as Kotabi is the relevant company and enterprise that was licensed and using all the trademarks up until 2011 which I owned - sorry, 2021 which I owned, which is half the relevant period, and in the second half they’d been licensed and my daughter’s owned them and licensed ‘em back to us, um, even if one was to accept that Kotabi has no claim postdating October 2021, which is when the trademarks changed over, Kotabi would still be - have a claim in relation to half of that matter, which is a claim for about two - two or three or - I can’t remember what it is. It’s - we’re talking millions of dollars. It was a very conservative claim in that. Now - - -
[64]Transcript of Proceedings (24 February 2025) 49.11-49.31.
And further:[65]
HER HONOUR: How does Kotabi have that claim when it is not a party to the proceeding? Is what you’re telling me - - -
MR HOSER: If you have a look at the orders - - -
HER HONOUR: - - - that if you receive a judgment for $3m, that you will in turn pass that money on to Kotabi?
MR HOSER: Because Kotabi - I am the sole owner and shareholder and director of Kotabi, and - - -
HER HONOUR: Kotabi’s a separate entity. It’s a separate legal entity.
MR HOSER: Well, yes, you - you - you split that hair wide open with open with a crowbar now. Kotabi has nothing to do with Raymond Hoser, that’s basically what you’re saying.
HER HONOUR: No, I’m saying it’s a separate legal entity.
MR HOSER: That’s what you say. However, as you - as - as one sees from reading the Smith matter and the appeal court judgment, they are literally one and the same, and this is why without really getting - you - you’ve got it - with all due respect, your Honour, you think the reasons I’ve tendered this - this, ah, ah, previous case material is for re-litigation, it’s not, it’s to point out certain obvious facts.
[65]Ibid, 50.1-22.
As an adjunct to this submission, Mr Hoser on behalf of Kotabi submitted that I should not to draw any distinction between any rights Mr Hoser might have personally to the trademarks and those of Kotabi, as in the proceedings in the County Court, Court of Appeal and High Court there was no issue as between the ownership and rights of Kotabi in relation to the use of the trademarks and Mr Hoser. On behalf of Kotabi, Mr Hoser’s submission was in the following terms:[66]
MR HOSER: Yeah. Now very relevantly ah in all the relevant proceedings, the Smith, the – the – the appeal and so on which is again another reason why they’ve been tendered. Ah you’ll see that there is no dispute as to the ownership and use and rights of Kotabi in relation to the trademarks. That’s never contested.
HER HONOUR: Well they’re not Kotabi’s trademarks. You’ve just told me that they were yours.
MR HOSER: No but there was no – no – no – no argument that Kotabi was allowed to use them. That they were used on the Facebook page, for example, which was supposedly the Kotabi website was the Snakebusters Facebook page which is underneath the Raymond Hoser Facebook page. So - - -
HER HONOUR: So you say there’s no dispute in the proceeding before Judge Smith or the Court of Appeal that Kotabi could use the trademarks?
MR HOSER: Could and was. And was. So the defamatory material, publications 1 to 6 which are the ones for which the payment was awarded was supposedly on a Kotabi webpage – ah Facebook page. That Kotabi Facebook page was actually a Facebook page in the name of Snakebusters which is controlled by Raymond Hoser because on Facebook if you run a business account ah or a trademark or a brand or any – any kind of page they are always controlled by a personal page. So a person controls whatever.
So I – Raymond Hoser is the account that controlled Snakebusters. But Pelley successfully argued that Snakebusters was a Kotabi Facebook page and when you read the paragraphs which I’ve referred you to in my submissions you will see that the Appeal Court judgment, which is the important one, no disrespect to Judge Smith but his judgment has, in fact, been overridden by the Supreme Court. That’s the judgment that matters. That’s what we’re here about, okay.
[66]Ibid 60.29-62.1.
Additionally, Kotabi contended that the only reason why it was not a party to MLG3335/2024 was due to the actions of Mr Pelley. The essence of this submission was that the possibility that Kotabi, as a company, would need to be represented by lawyers, rendered Kotabi unable to bring a claim as part of MLG3335/2024. In this regard, Mr Hoser, on behalf of Kotabi, drew an analogy to security for costs applications and contended that what Mr Pelley was in fact doing was attempting to stultify the proceedings in the same way that a security for costs order may stultify an impecunious person.[67] Given Mr Hoser has been granted leave to appear on behalf of Kotabi in a multitude of proceedings, the basis for his concern as to not being granted leave as a reason not to include Kotabi as a party to the proceeding is not readily reconcilable. In any event, Mr Hoser submitted that:[68]
Now, Your Honour, last time when I was in front of you, you raised the same issue, Kotabi is not a co-litigant in relation to these proceedings.
HER HONOUR: So I think you told me that that was easily fixed and you would add them to the Federal Court proceeding.
MR HOSER: Correct, - - -
HER HONOUR: Yes.
MR HOSER: - - - but the problem that emerged is the issue of then requiring a lawyer, which is not easily fixed because Mr Pelley through his conduct has caused us not to have money. However, in the - to - to make it absolutely clear, bear in mind the current position of other orders as the court sees fit. It’s where we can make submissions.
It will be made explicit in the amended statement of claim that Kotabi would be a beneficiary of the money, so Kotabi would also be, ah, able to claim a portion, say 40 - I haven’t decided an amount, but we’ll probably work about 40 - we’ll scrub the defamation component and it will get a proportion of the remainder, probably half, which will still be in excess of $1m, and that is the intent to write it in - in the amended statement of claim, which is allowed as right. You’re allowed one amended statement of claim in Federal Court matters without any issue.
So the amended statement of claim will include new - new instances of trademark and ACL, more egregious than ever, ‘cause Mr Pelley - I mean, it was quite astounding that my learned friend next to me said give an inch and he takes a mile. Well, on the same analogy, give Mr Pelley a millimetre, he’ll take 20 kilometres. Um, it’s just like - so in relation to that case in the Federal Court, which is relatively new, um, that’s, you know, where we stand now.
[67]Ibid, 32.28-33.9.
[68]Ibid, 51.22-52.25.
There was no evidence before me that an amended statement of claim had been prepared or filed in MLG3335/2024.
Additionally, in relation to the trademarks themselves, before me, Kotabi’s submission was in the following terms:[69]
[69]Ibid, 60.4-24.
MR HOSER: Up until October 2021 they were registered in my name. Ah from October 2021 ah they were transferred to my daughter who licenced me to be able to use them as if owner and - - -
HER HONOUR: So from October 2021 they’re registered now in your daughter. What’s her name?
MR HOSER: Adelyn A-d-e-l-y-n Hoser.
HER HONOUR: And Ms Hoser then licences you to use them?
MR HOSER: Correct. In civil terms.
HER HONOUR: Yes.
MR HOSER: As if owner. To use as if owner, I think that’s the words.
HER HONOUR: Yes. So and when she licences their use does she licence them to you - - -
MR HOSER: October. Yes, October 2011.
HER HONOUR: No, does she licence them to you, Mr Hoser or to Kotabi?
MR HOSER: Me.
Regarding this point, the defendant placed some emphasis in his submissions on the following three paragraphs in the Third Hoser Affidavit, which are extracted below:
[71]Kotabi PIL is wholly owned and controlled by RAYMOND HOSER and it is being disingenuous to try to separate the two in terms of the alleged debt recovery, when in the SMITH trail and appeal, they were treated as one and the same entity throughout.
…
[83]However, as Kotabi P1/L is wholly owned by Haymond HOSER who is the only director, it in my view only reasonable that any alleged debt owed to PELLEY by Kotabi PIL be offset by the ongoing Defamation and trademarks infringement case in ongoing the Federal Circuit and Family Court of Australia (FCAFCOA) matter and stayed at least until the finalization that matter and of course squashed after it finds in favor [sic] of Haser [sic] against PELLEY.
[84]As in the SMITH case and the appeal, it is appropriate that Kotabi PIL and Haser [sic] be treated as one and the same and for this reason the bankruptcy notice against Kotabi PIL should be stayed or quashed.
The essence of the defendant’s submission in response to these matters was that the aforementioned paragraphs of Kotabi’s evidence demonstrated a fundamental misconception by Mr Hoser, namely, that he and Kotabi are the same legal entity. The defendant submitted that any debt (the existence of which was not conceded and expressly denied) which he might owe to Mr Hoser arising from the FCFCOA proceedings could not be offset against Kotabi’s indebtedness in the Demand. The defendant stated that neither the County Court nor the Court of Appeal in the case pursuant to which the Judgment Debt arose made any determination that Mr Hoser and Kotabi were one and the same thing. Rather, there stands a judgment against both Mr Hoser and Kotabi which is jointly and severally payable. I accept that this is a correct submission of fact.
It is trite law that a company is a separate legal entity, run by its directors and owned by its shareholders, where the company’s income and assets belong to it, not its shareholders. Similarly, it is trite law that a corporation and the aggregate members of the corporation are not the same thing where, prima facie, a corporation as a separate legal entity is required to sue in its own name.[70] If Kotabi has a claim that it wishes to prosecute in MLG3335/2024, it will need to be joined as a party to that proceeding. At the time of the hearing before me, this had not occurred, despite me raising this issue with Mr Hoser at a prior directions hearing. For this reason alone, I am not satisfied that Kotabi has a genuine offsetting claim.
[70]Salomon v Salomon & Co Ltd [1897] A.C. 22.
The issue of Kotabi’s standing to make any claim in MLG3335/2024 is further obscured by the matters raised in the Third Hoser Affidavit. There, Mr Hoser exhibits a signed statement from Ms Adelyn Kimberley Hoser, his daughter, bearing the date 1 October 2021, which is in the following terms:
I, Adelyn Kimberley Hoser, hereby license for use, to Raymond Hoser, of 488 Park Road, Park Orchards, Victoria, 3114, full non-transferable use and rights to all my registered trademarks as listed at IP Australia (at any time in the relevant period), in as much as he is able to exercise full rights as owner and the like, including to take actions for trademarks infringement against third parties from this date, 1 October 2021 to 1 December 2025, (being the relevant period) after which all rights revert back to myself, unless I have licensed otherwise.
The statement from Ms Hoser is consistent with the matters recorded by Judge Manousaridis in his reasons in Hoser v Harrison,[71] to which I have already referred. Having regard to Ms Hoser’s statement, it is difficult to conceive of how it might be sensibly said that Kotabi has any interest in proceeding MLG3335/2024.
[71][2024] FedCFam2G 436.
Again, doing the best I can to understand the arguments that were advanced by Mr Hoser on behalf of Kotabi, one of the matters he submitted was to the effect that until the trademarks were transferred to Ms Hoser they were owned by both Mr Hoser and Kotabi, and that the claims in MLG3335/2024 related to a period prior to 1 October 2021. Although the statement of claim in MLG3335/2024 complains of actions allegedly undertaken by Mr Pelley from January 2017, there was no evidence before me that the relevant trademarks were owned by Kotabi at that time. If that were the case, I would expect Mr Hoser would annex copies of the relevant documents issued to him by IP Australia in respect of each alleged trademark in issue, which would indicate that the registration was in the terms he submitted. Again, for this reason alone, I am not satisfied that Kotabi has a genuine offsetting claim.
Alternatively, and taking into account that Kotabi was self-represented, to the extent that it might be argued that Kotabi might have a financial interest in the outcome of MLG3335/2024 such that I ought to consider that for the purpose of any analysis of there being a genuine offsetting claim, before me, Mr Hoser submitted that[72]:
HER HONOUR: Yes, and you’ve told me, I think earlier today, that if you succeed in the Federal Court action and receive damages, that you will nominate some amount - and you thought it might be 40 per cent, but you haven’t yet decided - of that amount to go to the company, is that right?
MR HOSER: Yes. In the amended statement of claim to be filed, ah, Kotabi will be named as a beneficiary to remove that doubt.
HER HONOUR: So it won’t be named as a party, but it’ll be named as a beneficiary?
MR HOSER: In the amended statement of claim, that’s the plan.
HER HONOUR: Yes.
[72]Transcript of Proceedings (24 February 2025) 86.1-86.13.
Again, there was no evidence to support that assertion from Mr Hoser, either in the form of a proposed amended statement of claim, a resolution of the director of Kotabi, or an entry in the financial accounts of Kotabi, consistent with the submissions Mr Hoser advanced. I do not accept Mr Hoser’s submission on behalf of Kotabi.
Notwithstanding my conclusions in relation to Ground 3, even if I was to conclude that there was an genuine offsetting claim (which I do not), I would need to be satisfied as to the value of that offsetting claim, which would need to exceed the sum demanded, being $171,000.00.
Although the total damages claimed for the alleged trademark infringements is $6 million, the there was no quantification nor particulars for how that sum was reached.[73] During the hearing, Mr Hoser attempted to refer to settlement agreements he has allegedly entered into with other persons regarding alleged trademark infringements which, he told me, were exhibited to the First Hoser Affidavit.[74] They were not exhibited to the First Hoser Affidavit, or any subsequent affidavit filed by Mr Hoser on behalf of Kotabi in this proceeding. In any event, I would not have been assisted even if those documents were in evidence, as I do not consider that settlement amounts with other parties are relevant to determining what a court might or might not award as damages for the relevant claims in MLG3335/2024.
[73]Ibid, 67.19-67.31; 69.26-69.31; 70.14-70.31.
[74]Ibid, 67.20-68.14.
During oral argument, I asked Mr Hoser to refer me to the breakdown and evidence concerning his calculations of the total sum claimed for the alleged trademark infringements. He stated, by refence to unidentified paragraph numbers, that his statement of claim filed in MLG3335/2024 set out how the damages claimed were calculated.[75] I cannot find any such breakdown in the statement of claim filed in MLG3335/2024, concerning damages for trademark infringement.
[75]Ibid, 80.1-80.18.
Without reference to calculations made by Mr Hoser on behalf of Kotabi to arrive at the figure of $6 million, it seems to me that the claimed amount for the various alleged trademark infringements or breaches is a figure which is little more than a guess. The onus lies on Kotabi to prove that it has a genuine offsetting claim which can be quantified in monetary terms, and to demonstrate, by evidence sufficient for the court to estimate the amount of the offsetting claim. Kotabi has not done so.
Accordingly, and without derogating from my conclusions in relation to Ground 3, even if I were satisfied that Kotabi’s alleged offsetting claim – arising tangentially from MLG3335/2024 - constituted a genuine offsetting claim by Kotabi (which I am not), I cannot ascribe any value to it for the purpose of calculating the ‘substantiated amount’ required by section 459H(2) of the Act.
I, therefore, do not accept that Kotabi has a genuine offsetting claim.
Conclusion
The application will be dismissed.
I will direct that the parties provide to my chambers a proposed form of order to give effect to this judgment.
It is the usual case that costs of the application follow the event. That is to say, that the losing party, here Kotabi, should be ordered to pay the defendant’s costs. It is my preliminary view that a costs order should be made that the plaintiff pay the defendant’s costs of the proceeding, including any reserved costs. I will direct that the parties file submissions of not more than two pages in relation to any costs orders which are sought or resisted, including whether any costs order is sought other than on a standard basis. I will then determine the issue of costs on the papers in chambers.
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