Re Sebbella Pty Ltd - [2025] VSC 409

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2025 01101

IN THE MATTER of SEBBELLA PTY LTD (ACN 151 967 869) (RECEIVERS APPOINTED)

BETWEEN:

SEBBELLA PTY LTD (ACN 151 967 869) (RECEIVERS APPOINTED)	Plaintiff
v
PRETTY CHOOK PTY LTD (ACN 651 817 266)	Defendant

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JUDGE:	Efthim AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2025
DATE OF JUDGMENT:	26 June 2025
CASE MAY BE CITED AS:	Re Sebbella Pty Ltd
MEDIUM NEUTRAL CITATION	[2025] VSC 409

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CORPORATIONS – Application to set aside a statutory demand – Where debt identified in demand is the subject of the proceeding brought by the defendant in the Victorian County Court – Whether the statutory demand should be set aside for some other reason pursuant to s 459J(1)(b) of the Corporations Act 2001 (Cth) – Whether there is an abuse of process – Re Zarzar Pty Ltd [2017] NSWSC 93, Re Modern Wholesale Jewellery Pty Ltd [2017] NSWSC 236 and Re 47 Industrial Pty Ltd [2024] NSWSC 1166 referred to – Finding that there is no abuse of process.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Purton	DSA Law – Lawyers & Consultants
For the Defendant	Mr S Buchanan	Dunemann Sutherland Pty

HIS HONOUR:

The plaintiff, Sebbella Pty Ltd, applies to set aside a statutory demand served on it by the defendant, Pretty Chook Pty Ltd.
The statutory demand claims that the plaintiff owes $301,737.98. The debt is described in the schedule to the statutory demand as follows:
Creditor’s Loan to Company:

21/04/2023 Loan Advance $117,753.00

21/05/2023 Loan Extension Fee $1,000.00

21/05/2023 Monthly Service fee $800.00

21/05/2024 12 Months Interest on Loan Advance @ 7% per month $98,913.00

21/05/2024 12 Months Service Fees $9,600.00

23/01/2025 Interest on Loan Advance @ 7% per month from 22/05/2024 to 23/01/2025 $67,271.48

23/01/2025 8 Months Service Fees $6,400.00

Total Amount $301,737.98

The plaintiff seeks to set aside the statutory demand on the basis that it is impermissible and an abuse of process to serve a statutory demand while continuing to pursue the debt in substantive proceedings.

Background

On 22 October 2024, the defendant issued proceedings in the Victorian County Court against the plaintiff and David Sottile, the director of the plaintiff, claiming the sum of $424,850.02 in connection with a loan. Under the loan agreement, the defendant lent the plaintiff the sum of $117,753.50 on 21 April 2023. The loan was repayable one month later and the plaintiff did not repay the loan or make any payment towards it, other than the payment of certain fees deducted at the time the loan was advanced.
Under the terms of the loan the plaintiff was required to pay interest at 7% per month, together with fees and interest which, according to the defendant, were compounding monthly.
On 9 January 2025, the plaintiff filed a defence and counterclaim in the County Court, which admitted:
-the loan;
-the advance that was made under the loan;
-that the plaintiff had…

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 Sebbella Pty Ltd

Details

AGLC: Re Sebbella Pty Ltd [2025] VSC 409
Case: [2025] VSC 409
Decision Date: 26 June 2025

CaseChat Overview and Summary

Sebbella Pty Ltd applied to the Federal Circuit and Family Court of Australia to set aside a statutory demand issued by the creditor, seeking payment of a debt. The applicant argued that the statutory demand should be set aside not only because the debt was the subject of a proceeding in the Victorian County Court, but also on the basis that there was an abuse of process. The court considered whether the statutory demand should be set aside under s 459J(1)(b) of the Corporations Act 2001 (Cth) for reasons other than the existence of the proceeding. The court referred to previous cases such as Re Zarzar Pty Ltd [2017] NSWSC 93, Re Modern Wholesale Jewellery Pty Ltd [2017] NSWSC 236, and Re 47 Industrial Pty Ltd [2024] NSWSC 1166 to determine whether the statutory demand constituted an abuse of process.

The court held that the statutory demand did not amount to an abuse of process. It noted that the applicant had not provided sufficient evidence to support the claim of abuse, and that the existence of a proceeding in the Victorian County Court was not sufficient to establish an abuse of process. The court found that the applicant had not demonstrated any unfairness or procedural impropriety that would warrant setting aside the statutory demand on the basis of abuse of process. The court also considered the applicant's other arguments but found them to be without merit.

Consequently, the court dismissed the application to set aside the statutory demand. The court held that there was no abuse of process and that the statutory demand remained valid. The applicant's arguments were found to be insufficient to persuade the court to interfere with the statutory demand. The court's decision was based on a careful consideration of the evidence and legal principles relevant to the case.

The court's final order was that the application to set aside the statutory demand be dismissed. The court found that the statutory demand was valid and that there was no abuse of process. The court's decision was based on a detailed analysis of the applicant's arguments and the relevant legal principles. The creditor was entitled to enforce the statutory demand, and the applicant was not granted relief from the demand.

Orders