Re VFS Group Pty Ltd (No. 2); (No. 2)

VFS Group Pty Ltd was the subject of an application to set aside a statutory demand by its former shareholder, the applicant, under section 459G of the Corporations Act 2001 (Cth). The dispute arose in the Supreme Court of New South Wales, where the applicant sought to set aside the demand on the basis of an alleged cross-claim for an entitlement to share in the company’s surplus upon a voluntary winding up, accruing under a transfer of shares. The respondent argued that the transfer was void under section 493A of the Act, which prohibits transfers of shares to prevent the payment of a company’s debts. Additionally, the respondent contended that the applicant had no equitable interest in the distributable surplus of the company and that the assets of the company did not include causes of action against former directors and a related company.

The court was required to determine whether the applicant’s cross-claim constituted an offsetting claim or some other reason under section 459J(1) of the Act for setting aside the statutory demand. Furthermore, the court had to consider whether the transfer of shares was void under section 493A, and if the applicant had an equitable interest in the distributable surplus. The court also had to examine the nature of the company’s assets, including any potential causes of action against former directors and a related company.

In ruling on the application, the court held that the applicant’s cross-claim was indeed an offsetting claim under section 459J(1) of the Act. The court found that the transfer of shares was void under section 493A because it was made to prevent the payment of debts. However, the applicant did not have an equitable interest in the distributable surplus of the company. The court also found that the company’s assets did not include the causes of action against former directors and the related company. As a result, the court dismissed the application to set aside the statutory demand.

The final orders of the court were that the application to set aside the statutory demand was dismissed, with no orders as to costs.