Re N2SH Pty Ltd - [2023] VSC 188

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2022 02866

IN THE MATTER of N2SH PTY LTD (ACN 606 603 196)

BETWEEN:

N2SH PTY LTD t/a N2SH DESIGN STUDIO (ACN 606 603 196)	Plaintiff
v
ADP CONSULTING PTY LTD (ACN 139 719 529)	Defendant

---

JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2022
DATE OF JUDGMENT:	14 April 2023
CASE MAY BE CITED AS:	Re N2SH Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 188

---

CORPORATIONS – Application to set aside a statutory demand – Corporations Act 2001 (Cth) ss 459G, 459H, 459J – Whether the plaintiff has offsetting claims – Whether there is a genuine dispute as to the existence or amount of the debt – Whether the statutory demand should be set aside for some other reason – Plaintiff has offsetting claims – Genuine disputes in relation to the existence of debts – Unnecessary to determine whether statutory demand should be set aside for some other reason – Statutory demand set aside.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Hender	Rotman & Morris
For the Defendant	Mr T Bevan	Kennedy Guy

TABLE OF CONTENTS

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

The statutory demand....................................................................................................................... 3

Offsetting claims................................................................................................................................ 4

Is there an offsetting claim in relation to the Yarrawonga Library works?.......................... 5
Is there an offsetting claim in relation to the Yarrawonga Stadium works?...................... 11
Is there an offsetting claim in relation to the Warragul Stadium works?........................... 13
Is there an offsetting claim in relation to the Pembroke Stadium works?.......................... 21
Is there an offsetting claim in relation to the Darley Park works?....................................... 22
Is there an offsetting claim regarding Perth Early Learning Centre works?...................... 24
Is there an offsetting claim in relation to the Chiltern Community Hub works?.............. 24

Genuine dispute............................................................................................................................... 26

Is there a genuine dispute about invoice ADP59337?............................................................ 26
Is there a genuine dispute about invoices ADP57807 and ADP59053?.............................. 26

Some other reason............................................................................................................................ 26

Conclusion......................................................................................................................................... 27

HIS HONOUR:

By its originating process filed on 29 July 2022, the plaintiff seeks to set aside the statutory demand dated 7 July 2022 and served on it by the defendant on 8 July 2022 pursuant to s 459G of the Corporations Act 2001 (Cth) (‘the Act’) on the following bases:

(a) there is some other reason to set aside the statutory demand pursuant to s 459J of the Act and in particular: the statutory demand is defective because it fails to properly particularise or explain the debt; the affidavit does not verify the debt; and the amount demanded is not ‘due and payable’;

(b) there is a genuine dispute (for the purposes of s 459H(1)(a) of the Act) as to the existence and/or amount of the debt; and/or

(c) the plaintiff has offsetting claims under s 459H(1)(b) of the Act.

The plaintiff relies on:

(a) affidavits of Mr Hughan affirmed on 29 July 2022, 10 October 2022 and 24 November 2022; and

(b) written submissions filed on 14 October 2022…

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.

Keep reading for free

Create a free CaseChat account to read Re N2SH Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] VSC 188
Decision Date: 14 April 2023

CaseChat Overview and Summary

N2SH Pty Ltd applied to the Federal Circuit Court to set aside a statutory demand issued by a creditor. The dispute centred on whether the plaintiff had offsetting claims, whether there was a genuine dispute regarding the existence or amount of the debt, and whether the statutory demand should be set aside for another reason. The court was required to consider these issues in light of the provisions of the Corporations Act 2001 (Cth).

The court examined whether the plaintiff had offsetting claims that would counterbalance the debt claimed by the creditor. It found that the plaintiff did indeed have offsetting claims, which impacted the net amount owed. Additionally, the court assessed whether there were genuine disputes concerning the existence or amount of the debt. It determined that such disputes did exist, thereby satisfying one of the statutory grounds for setting aside the demand. As the court found that there were genuine disputes regarding the debt, it was not necessary to delve into whether the statutory demand should be set aside for any other reasons.

In conclusion, the court ruled that the statutory demand should be set aside due to the presence of offsetting claims and genuine disputes regarding the existence of the debt. This decision underscores the importance of carefully assessing the existence and amount of debts when dealing with statutory demands. The court's ruling provides clarity on the procedural steps necessary to address such disputes under the Corporations Act.

Orders