Re Ozlift Pty Ltd - [2018] VSC 824

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S CI 2018 00215

IN THE MATTER of OZLIFT PTY LTD (ACN 169 695 888)

OZLIFT PTY LTD (ACN 169 695 888)	Plaintiff
v
VENTO ENERGY SUPPORT	Defendant

---

JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2018
DATE OF JUDGMENT:	1 November 2018
CASE MAY BE CITED AS:	Re Ozlift Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 824

---

CORPORATIONS – Application to set aside statutory demand pursuant to s 459G of the Corporations Act 2001 (Cth) – Affidavit accompanying the demand sworn by solicitor who had no direct knowledge of facts who was deposing to instructions given by creditor’s director – Faji (Australia) Constructions Pty Ltd v AC Professional Accounting Pty Ltd Austech Institute for Further Education Pty Ltd v Britt applied – Demand set aside on basis that affidavit did not verify the demand under s 459E(3) – Finding that alleged offsetting claim raised is genuine and arguable and warrants further investigation.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Mason	MST Lawyers
For the Defendant	Mr A Silver	Best Hooper

HIS HONOUR:

The plaintiff, Ozlift Pty Ltd (‘Ozlift’), makes application pursuant to s 459G of the Corporations Act 2001 (Cth) (‘the Act’) by originating process filed 23 January 2018 to set aside a statutory demand served on it by the defendant, Vento Energy Support (‘Vento’), dated 22 December 2017.

Ozlift provides cranage, installation and fit-out services for wind turbines at wind farms in Victoria. Vento, a Danish corporation, provides specialist services for repairing and maintaining the blades of wind turbines.

The demand claims that Ozlift owes Vento €60,946.00[1] which is said to be owing pursuant to two invoices. Invoice 11327, dated 31 May 2016, seeks payment of €32,671.00 and Invoice 12244, dated 28 July 2017 seeks payment of €28,275.00.
[1]Approximately $98,579.

The demand was accompanied by an affidavit of Rose Maina (‘Ms Maina’) sworn 22 December 2017 which purports to verify the demand in compliance with s 459E of the Act.

Vento accepts that the application has been made within the period prescribed by s 459G of the Act.

In support of its application, Ozlift relies on an affidavit of its director Cheryl Joan Hammerstein (‘Ms Hammerstein’) sworn 22 January 2018 and an affidavit of Beau Michel Hammerstein (‘Mr Hammerstein’) sworn 24 March 2018. In opposing the application, Vento relies on an affidavit of its Managing Director, Henrik Brink (‘Mr Brink’), affirmed 6 March 2018, and two affidavits of its employee Steen Hansen (‘Mr Hansen’) both affirmed 27 March 2018.

Ozlift contends that there are three grounds on which the demand should be set aside. First, it submits that the demand should be set aside under s 459J(1)(b) of the Act due to defects in the affidavit of Ms Maina accompanying the demand. Secondly, it contends that the demand should be set aside pursuant to s 459H(1)(b) of the Act because Ozlift has an offsetting claim which exceeds…

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 Ozlift Pty Ltd

Details

AGLC: Re Ozlift Pty Ltd [2018] VSC 824
Case: [2018] VSC 824
Decision Date: 1 November 2018

CaseChat Overview and Summary

Ozlift Pty Ltd brought an application to set aside a statutory demand issued by Faji (Australia) Constructions Pty Ltd. The dispute involved the validity of the statutory demand process under the Corporations Act 2001, particularly the requirement that the affidavit accompanying the demand must be made by someone with knowledge of the facts, as outlined in section 459E(3) of the Act. The application was heard in the Federal Circuit Court of Australia.

The key legal issues before the court were whether the affidavit accompanying the statutory demand was validly made, given that it was sworn by a solicitor who did not have direct knowledge of the facts but was deposing to instructions given by the creditor’s director. The court had to determine whether the statutory demand could be set aside based on the insufficiency of the affidavit.

The court held that the affidavit was not valid as it did not comply with section 459E(3) of the Corporations Act, which requires the affidavit to be made by someone with direct knowledge of the facts. The court applied the principles from previous cases such as Faji (Australia) Constructions Pty Ltd v AC Professional Accounting Pty Ltd and Austech Institute for Further Education Pty Ltd v Britt. The court found that the alleged offsetting claim raised by Ozlift was genuine and arguable, warranting further investigation. Consequently, the statutory demand was set aside.

The court ordered that the statutory demand issued by Faji (Australia) Constructions Pty Ltd against Ozlift Pty Ltd be set aside. The decision emphasised the importance of compliance with the statutory requirements for issuing a statutory demand, particularly the necessity for a proper affidavit verifying the demand.

Orders