Total Beverage Australia Pty Ltd v Corporate Link Australia Pty Ltd

Total Beverage Australia Pty Ltd sought to set aside a statutory demand issued by Corporate Link Australia Pty Ltd, which sought the payment of a debt. The dispute arose out of a commercial cherry orchard development known as the Tasmanian Premium Cherries Project, which was promoted by Total Beverage. The debt in question arose from the operation of a Product Disclosure Statement, which provided for commissions to be paid to certain parties involved in the project. Total Beverage sought to set aside the demand on the grounds that there was a genuine dispute as to whether Corporate Link was the creditor, and that the debt was subordinate to a loan repayment to Bank SA. Alternatively, Total Beverage sought to have the amount of the demand varied.

The legal issues before the court were whether there was a genuine dispute as to the indebtedness, whether the debt was properly owed to the defendant, whether the debt was due and payable, whether the debt was subordinate to repayment of another debt, and whether the amount of the debt should be varied. The court considered the evidence and submissions from both parties, and found that while there was no genuine dispute as to whom the debt was owed, there was a genuine dispute as to whether the debt was due and payable. The allegation that the debt was subordinate to repayment of a loan to Bank SA went beyond a mere assertion, and had the demand not been set aside, it would have been varied.

The court set aside the statutory demand issued to Total Beverage on 21 December 2012, and found that there was no genuine dispute as to whom the debt was owed. However, the allegation that the debt was subordinate to repayment of a loan to Bank SA went beyond a mere assertion, and the court would have varied the amount of the demand had it not been set aside. The court found that the statutory demand should be set aside, and made an order to that effect.