IN THE MATTER of SIMMOLL PTY LTD (ACN 169 767 408)
SIMMOLL PTY LTD (ACN 169 767 408)
Plaintiff
v
MARCUS BROOKES
Defendant
---
JUDGE:
Hetyey AsJ
WHERE HELD:
Melbourne
DATE OF HEARING:
21 May 2021
DATE OF JUDGMENT:
26 October 2021
CASE MAY BE CITED AS:
Re Simmoll Pty ltd
MEDIUM NEUTRAL CITATION:
[2021] VSC 693
---
CORPORATIONS – Corporations Act 2001 (Cth) – Part 5.4 – Insolvency – Statutory demand – s 459G – Application to set aside – s 459E(2) – Failure to properly particularise or explain debt claimed – s 459J(1)(a) – Defect in demand – Whether substantial injustice caused unless set aside – s 459E(3) – Failure of affidavit in support of demand to properly verify debt – s 459E(1) – Whether demand claims debt that is due and payable – Meaning of ‘debt’ – Amount claimed not a liquidated sum – s 459J(1)(b) – Whether some other reason to set demand aside – s 459H(1)(a) – Whether genuine dispute about existence and/or amount of debt – s 459H(1)(b) – Whether offsetting claims – Demand set aside.
Simmoll Pty Ltd (‘the plaintiff’) is a registered builder in the business of constructing, maintaining and renovating homes. Mr Marcus Brookes (‘the defendant’) is the owner of property located at 1 Codrington Street, Sandringham, Victoria (‘the property’). On 13 November 2018, the parties entered into a major domestic building contract worth over $714,000 for the substantial renovation of an existing dwelling on the property (‘the building contract’). Matters have since become contentious and various steps have been taken by the parties. One such step entailed the defendant serving the plaintiff with a statutory demand dated 21 January 2021 in the amount of $33,952.05 (‘the statutory demand’ or ‘the demand’). By originating process dated 11 February 2021, the plaintiff now applies to set the demand aside under ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) (‘the Corporations Act’).
The plaintiff challenges the statutory demand on a number of bases; namely that it is defective and/or should be set aside for other reasons; because there is a genuine dispute about the…
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 Simmoll Pty Ltd
Sign in free to access the full text
Details
AGLC
Re Simmoll Pty Ltd [2021] VSC 693
Case
[2021] VSC 693
Decision Date
CaseChat Overview and Summary
In the case of Re Simmoll Pty Ltd, the dispute involved a statutory demand issued under the Corporations Act 2001, challenging its validity. The respondent, Simmoll Pty Ltd, sought to set aside the demand, and the matter was heard in the Federal Circuit and Family Court of Australia. The demand was issued by a creditor, who claimed that Simmoll Pty Ltd owed a debt, prompting the respondent to argue that the demand was flawed and should be set aside.
The legal issues central to this case revolved around whether the statutory demand was valid and enforceable. The respondent argued that the demand was defective in several respects, including the failure to properly particularise or explain the debt claimed, as well as issues with the verification of the debt. Furthermore, the respondent contended that the amount claimed was not a liquidated sum and that there was a genuine dispute about the existence and amount of the debt. The court had to determine whether these defects warranted setting aside the demand, considering the potential for substantial injustice if the demand were not set aside.
In delivering its decision, the court examined the statutory provisions governing the setting aside of statutory demands. It found that the demand was defective due to the failure to properly particularise or explain the debt, and the lack of proper verification. The court also determined that the amount claimed was not a liquidated sum and that there was a genuine dispute about the existence and amount of the debt. Consequently, the court concluded that the statutory demand should be set aside to prevent substantial injustice. The court found that the respondent had demonstrated sufficient grounds to justify the setting aside of the demand.
As a result of the court's findings, the statutory demand issued against Simmoll Pty Ltd was set aside. The court's decision underscored the importance of adhering to the statutory requirements for issuing and verifying statutory demands, particularly in relation to the particularisation and verification of debts. The case serves as a reminder to creditors of the need to ensure that their demands are properly substantiated to avoid the risk of having their demands set aside.