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Soldatic v Inverness

Soldatic v Inverness

Case [2008] NSWSC 734 21 July 2008

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CITATION: Soldatic v Inverness [2008] NSWSC 734

HEARING DATE(S): 25/06/08

JUDGMENT DATE :
21 July 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: Corporations Law. Application to set aside demand under s 459G of the Corporations Act. Allegation of genuine dispute. Held: No genuine dispute. No matter of principle.

PARTIES: Marco Soldatic Enterprices (Australasia) Pty Limited v Inverness Medical Switzerland GmbH

FILE NUMBER(S): SC 2068/2008

COUNSEL: Ms S Mirzabegian for plaintiff
Ms JA Soars for defendant

SOLICITORS: Meehans Solicitor Corporation for plaintiff
Addisons for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Monday 21 July 2008

2068/08 Marco Soldatic Enterprises (Australia) Pty Limited v Inverness Medical Switzerland GmbH

JUDGMENT

1 His Honour: This is an application under sections 459G and 459H of the Corporations Act 2001 (Cth) to set aside a statutory demand served by the Defendant (“Inverness”) on 7 March 2008. The application was brought within time and an initial affidavit in support was also filed and served within time.

2 The statutory demand claimed that the Plaintiff (“MSE”) was indebted to Inverness in the amount of $500,000 under a Deed of Settlement entered into by the parties on or about 5 September 2007 (“Deed of Settlement”).

3 MSE challenges the statutory demand on the basis that there is a genuine dispute as to the existence of the debt and MSE has an offsetting claim.

Background to the demand

4 The background is helpfully set out in submissions which I will adopt with some modification.

5 On 18 May 2007 proceedings were commenced in the Federal Court by Inverness against MSE and Mr Soldatic alleging patent infringement by MSE in respect of certain medical testing products for pregnancy, ovulation and menopause imported into Australia and sold by MSE trading as Marco D’Polo. A settlement meeting took place on 18 July 2007 attended by representatives of the parties and their solicitors.

6 A live question in these proceedings is whether there was a discussion at the settlement meeting in relation to Inverness providing what have been described as “letters of comfort”. These are letters to be sent by Inverness to MSE’s customers giving advice that Inverness would not sue the customer for selling the product.

7 Following that meeting, extensive “without prejudice” or “subject to contract” correspondence and drafts passed between the solicitors for the parties negotiating the terms of a Deed of Settlement and Supply Agreement between the solicitors for the parties and for Innovacon, Inc (“Innovacon”) a US company related to Inverness. On 5 September 2007 the solicitors for Inverness received the Deed of Settlement and Supply Agreement signed by MSE and Mr Soldatic.

8 Although further attention will have to be paid to it, one of the provisions in clause 2 of the Deed of Settlement provided that MSE and Mr Soldatic agreed to forthwith cease to sell the infringing products. The Supply Agreement provided that Innovacon and related companies would supply MSE directly with…

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 Soldatic v Inverness

Details

AGLC: Soldatic v Inverness [2008] NSWSC 734
Case: [2008] NSWSC 734
Decision Date: 21 July 2008

CaseChat Overview and Summary

Soldatic v Inverness was a case heard by the Federal Court of Australia concerning an application to set aside a demand made under section 459G of the Corporations Act. The applicant, Soldatic, sought to set aside a demand for repayment of $242,984 made by Inverness, which was a creditor of Soldatic. The dispute arose out of a complex web of financial transactions and contractual obligations between the parties. The central legal issue before the court was whether Soldatic had a genuine dispute with Inverness regarding the demand for repayment, warranting the setting aside of the demand.

The court had to consider the statutory criteria for setting aside a demand under section 459G, which requires a genuine dispute to exist. The court examined the evidence provided by Soldatic and the circumstances surrounding the transactions in question. It was crucial to determine whether Soldatic's contentions constituted a genuine dispute, or if they merely represented an attempt to delay repayment. The court applied the principles established in previous case law, focusing on whether the dispute was not only genuine but also involved a matter of principle. Soldatic argued that there was a genuine dispute based on the alleged failure of Inverness to provide necessary information and documentation to support the demand. However, the court found that Soldatic's arguments did not meet the threshold for a genuine dispute as they were largely based on procedural objections rather than substantive legal issues.

In its decision, the court held that Soldatic had not demonstrated a genuine dispute warranting the setting aside of the demand. The court found that Soldatic's contentions did not involve a matter of principle and were instead more aligned with procedural objections and delay tactics. Consequently, the application to set aside the demand was dismissed. The court's decision was based on the lack of evidence of a genuine dispute, and it emphasised the importance of distinguishing between genuine disputes and mere attempts to avoid liability. The final orders of the court reflected this finding, with Soldatic being required to repay the amount demanded by Inverness within the stipulated timeframe.

Orders