Ulithorne Wines Pty Ltd v Ulithorne Vineyard Pty Ltd - [2020] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ULITHORNE WINES PTY LTD v ULITHORNE VINEYARD PTY LTD
[2020] SASC 32
Judgment of The Honourable Justice Doyle
4 March 2020
CORPORATIONS - WINDING UP - WINDING UP IN INSOLVENCY - STATUTORY DEMAND - APPLICATION TO SET ASIDE DEMAND - GENUINE DISPUTE AS TO INDEBTEDNESS - ASSESSING GENUINENESS - GENERALLY
The plaintiff (Ulithorne Wines) and defendant (Ulithorne Vineyard) are related companies. Ulithorne Vineyard served a statutory demand upon Ulithorne Wines, seeking payment of $1,171,084.93 said to be owing on account of an intercompany loan.
Ulithorne Wines has applied under s 459G of the Corporations Act 2001 (Cth) (the Act) to have the statutory demand set aside on the basis either that there is a genuine dispute as to the debt, or that the statutory demand was issued for an improper purpose.
Ulithorne Wines’ contentions include that:
1.      A genuine dispute exists as Ulithorne Vineyard have not put forward evidence to support the contention that the alleged debt is due and payable;
2.      A genuine dispute exists as there is evidence to suggest that the ‘loan’ referred to in the parties’ accounts represents a capital investment;
3.      The statutory demand is an abuse of process, or otherwise improper, as it overlaps with matters in dispute in the main action (which has been stayed) and interferes with related parties’ exercise of their privilege against self-incrimination; and
4.      The statutory demand is an abuse of process because it was issued for the purposes of debt recovery.
Held, per Doyle J, dismissing the application:
1.      Sufficient evidence was tendered to prove the existence of the debt that is due and payable. No genuine dispute has been established.
2.      No improper or abusive purpose has been established.
Corporations Act 2001 (Cth) s 459G, s 459H, s 459J(1); Limitation of Actions Act 1936 (SA) s 42(1), s 42(3), referred to.
Accordent Pty Ltd v RMBL Investments Ltd (2009) 105 SASR 62; Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; Genesis Management Services Pty Ltd v Soniclean [2005] SASC 224; John Holland Construction & Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250; John Shearer Ltd v Gehl Co (1995) 60 FCR 136; Ogilvie v Adams [1981] VR 1041; Poonon Pty Ltd v Deputy Commissioner of Taxation [1999] NSWSC 1121; Re Brookers (Australia) Limited (in liq); Brooker v Pridham (1986) 41 SASR 380; Re Eastmark Holdings Pty Ltd [2011] NSWSC 1084; Reschke Pty Ltd v DiGiorgio Family Wines Pty Ltd [2017] SASC 187; Saferack Pty Ltd v Marketing Heads Australia Pty Ltd (2007) 214 FLR 393; Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452; TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67; Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452; GoConnect Ltd v Sino Strategic International Ltd (in liq) [2016] VSCA 315; Lonsdale Sand and Metal Pty Ltd v Federal Commissioner of Taxation (1998) 162 ALR 220; Re Italasia Pty Ltd [2017] NSWSC 811; Stage Club Limited v Millers Hotels Pty Ltd (1981) 150 CLR 535, considered.

ULITHORNE WINES PTY LTD v ULITHORNE VINEYARD PTY LTD
[2020] SASC 32
Civil

DOYLE J: The plaintiff (Ulithorne Wines Pty Ltd) and defendant (Ulithorne Vineyard Pty Ltd) are related companies. Ulithorne Vineyard operates a vineyard on the land it owns at Blewitt Springs, in the McLaren Vale wine region. Ulithorne Wines is a wine producer based in the McLaren Vale, and sources fruit from Ulithorne Vineyard.
On 4 December 2019, Ulithorne Vineyard served a statutory demand upon Ulithorne Wines, seeking payment of $1,171,084.93 said to be owing on account of an intercompany loan.
In these proceedings, Ulithorne Wines has applied under s 459G of the Corporations Act 2001 (Cth) (the Act) to have the statutory demand set aside on the basis either that there is a genuine dispute as to the debt, or that the statutory demand was issued for an improper purpose.
Background
According to the ASIC records in evidence the share capital of both Ulithorne Vineyard and Ulithorne Wines consists of 100 ordinary shares. The companies have common ownership in that the shares in both companies are owned by East Wine Group Pty Ltd and AST Investments Pty Ltd. In the case of Ulithorne Vineyard, its shares are held as to 70 shares by East Wine Group and as to 30 shares by AST Investments; and in the case of Ulithorne Wines, its shares are held as to 30 shares by East Wine Group and as to 70 shares by AST Investments. The effect of this is that the majority shareholder of Ulithorne Vineyard is East Wine Group, whereas the majority shareholder of Ulithorne Wines is AST Investments.
The shares in East Wine Group are held by Dong Lyu (as to 20 shares) and his wife Xiaoxin Li (as to 80 shares). Ms Li is the sole director of Ulithorne Vineyard, and is the person who has been providing instructions on behalf of that company, both in serving the statutory demand and in defending these proceedings.
AST Investments, on the other hand, is ultimately owned and controlled by Mo Du and Sing Teck Ong. The sole director of Ulithorne Wines is Mr Ong.
There is no evidence before me as to the nature or detail of the parties’ respective businesses, beyond the general descriptions at the outset of these reasons. The evidence also does not reveal anything of detail about any dealings between the parties, including the dealings which gave rise to the debt claimed by Ulithorne Vineyard in its statutory demand. Ulithorne Vineyard’s evidence in support of the debt is confined to the references to the indebtedness in the parties’ respective financial accounts.
The statutory demand served by Ulithorne Vineyard on Ulithorne Wines was supported by an affidavit of Belinda Xu, who became the accountant for Ulithorne Vineyard on 26 November 2019. The previous accountants of Ulithorne Vineyard were the firm Chong & Harjanta Consultants and Accountants. Chong & Harjanta were also the accountants for Ulithorne Wines, and indeed continue to be its accountants.
In her affidavit, Ms Xu deposed that she had inspected the business records of Ulithorne Vineyard in relation to the intercompany loan between the parties. The loan was recorded as a current asset, with the description ‘Loan – Ulithorne Wines Pty Ltd’, in the balance sheet within the accounts of Ulithorne Vineyard for each of the financial years ended 30 June 2014 through to 30 June 2018. It was recorded in the accounts for those years in the amounts of $1,001,463, $1,094,738, $1,034,227, $1,034,227 and $1,184,227 respectively. It was also recorded in the trial balance for Ulithorne Vineyard as at 31 May 2019, with the same description and in the amount of $1,171,084.93. The last of these figures is the one used in the statutory demand.
Ms Xu deposed that she had also inspected the business records of Ulithorne Wines. The accounts of that company for the financial years ended 30 June 2014 through to 30 June 2017, which had been prepared by Chong & Harjanta, recorded a current liability in the balance sheet, with the description ‘Loan – Ulithorne Vineyard Pty Ltd’. The balance in each case was either the same as appeared in Ulithorne Vineyard’s accounts (rounded to the nearest dollar), or in the case of the 30 June 2017 balance sheet different only by an immaterial amount (less than $100).
Genuine dispute
There is no issue between the parties as to the principles governing the existence of a genuine dispute for the purposes of s 459H of the Act. It is sufficient for present purposes to refer to my summary of those principles in Reschke Pty Ltd v DiGiorgio Family Wines Pty Ltd:[1]
The Master accurately summarised the principles governing determination of whether there was a “genuine dispute” as to the existence or amount of the debt claimed in a statutory demand for the purposes of s 459H of the Act. He explained that while formulations in the authorities differed slightly, a fair summary of the test was that it was not particularly onerous, so long as there appeared to be a proper evidentiary basis for the assertion that there was a genuine dispute. His Honour also referred to authorities to the effect that the dispute must be bona fide and truly exist in fact,[2] and that the notion of a “genuine dispute” connotes a plausible contention requiring further investigation.[3]
In this context, I would add merely that the authorities also make it plain that establishing a genuine dispute requires that there be some factual and evidential basis for the asserted dispute. It must be established that the dispute has a sufficient objective existence and prima facie plausibility to distinguish it from mere assertion,[4] or from a claim that is spurious, fanciful or futile.[5] But it is not necessary to advance a fully evidenced claim; what is required is something between mere assertion and the proof that would be necessary in a court of law.[6]
[1]    Reschke Pty Ltd v DiGiorgio Family Wines Pty Ltd [2017] SASC 187 at [31]-[32].
[2]    Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452 at 462.
[3]    Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 787.
[4]    John Shearer Ltd v Gehl Co (1995) 60 FCR 136 at 143, 147-148; Genesis Management Services Pty Ltd v Soniclean [2005] SASC 224 at [49]-[50].
[5]    TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67 at [71].
[6]    John Holland Construction & Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253.
There are two limbs to Ulithorne Wines’ contention that there is a genuine dispute as to the indebtedness the subject of the statutory demand in this case.
The first limb focuses upon the quality of the evidence advanced by Ulithorne Vineyard as to the indebtedness relied upon in its statutory demand. Ulithorne Wines contends that there has been no evidence put forward by Ulithorne Vineyard to support the contention that the alleged debt is due and payable; that there is no evidence as to how the debt is said to have arisen, the terms of its repayment or how it is said to now be due and payable.
It is true that there is no evidence as to the origin or terms of the alleged indebtedness the subject of the statutory demand. While this would often be a difficulty for a creditor seeking to sustain a statutory demand, I do not think that is so in the present case. In the present case, there is evidence as to the existence of the debt in the form of the contemporaneous, and externally prepared, accounts of both the debtor and creditor. The debt appears in those accounts over several consecutive years. Its recorded value was relatively constant throughout the relevant period, although the precise balance fluctuated. Importantly, the debt was recorded as at each balance date in materially identical amounts in both parties’ accounts. I also note that the parties have lodged tax returns during the relevant period which made reference to the balance sheet figures appearing in the accounts to which I have referred.
In my view, these financial records provide strong support for the existence of the debt relied upon by Ulithorne Vineyard. Further, while the absence of additional supporting documentation as to the existence and circumstances of the debt might be a matter of concern in respect of some types of debt, the debt in the present case is said to be an intercompany loan between two related companies. It is commonplace for related companies to have intercompany loan arrangements, and for those intercompany loan arrangements to be undocumented other than through the relevant company accounts. It is also unsurprising that Ulithorne Vineyard is apparently not presently in a position to provide any further evidence as to the circumstances of the debt, given that those now in control of the company (Ms Li and Mr Lyu) were not in control of the operation of the company at the time and do not purport to have knowledge of matters of this nature. And it would seem that evidence has not been forthcoming from those who might be expected to have relevant knowledge, such as the director (Mr Du) or accountants (Chong & Harjanta) of Ulithorne Vineyard at the relevant time.
As to the requirement that the indebtedness be due and payable, I am satisfied that it can be inferred that the loan was payable on demand. It would appear from Ms Xu’s review of Ulithorne Vineyard’s business records that there is no written agreement governing the intercompany loan. An intercompany loan which is not the subject of any particular or express agreement between the parties to it would, in my view, ordinarily be a species of loan simpliciter (as that term is used in Ogilvie v Adams[7]), with the loan repayable on demand. The treatment of the loan as a current asset and current liability in the parties’ respective accounts is consistent with this view.
[7] Ogilvie v Adams [1981] VR 1041 at 1043; Haller v Ayre [2005] Qd R 410.
Counsel for Ulithorne Wines contended that if the loan was indeed one repayable on demand, then Ulithorne Vineyard’s cause of action on that loan would have arisen at the time the loan account was established and hence would be statute barred.[8] This contention was first raised in the course of submissions in reply. It was not a matter raised or otherwise notified in any way in Ulithorne Wines’ affidavit material filed within 21 days of service of the statutory demand upon it. In my view, Ulithorne Wines is thus precluded from relying upon this contention by reason of the Graywinter principle.[9]
[8] Ogilvie v Adams [1981] VR 1041 at 1043; Re Italasia Pty Ltd [2017] NSWSC 811 at [13]-[18].
[9] Graywinter Properties Pty Ltd v Gas & Fuel corporation Superannuation Fund (1996) 70 FCR 452 at 460; GoConnect Ltd v Sino Strategic International Ltd (in liq) [2016] VSCA 315 at [40]; Reschke Pty Ltd v DiGiorgio Family Wines Pty Ltd [2017] SASC 187 at [42].
Alternatively, and in any event, on the evidence as it stands, I do not think the contention rises above the level of bare assertion. While the principle in Ogilvie v Adams is well recognised, whether it operates in a given case will depend upon the nature and circumstances of the loan in question, and the conduct of, and relationship between, the parties to that loan.[10] Significantly, even when the principle does apply, it is subject to exception in cases where there has been written acknowledgment of the debt or part payment of the debt.[11]
[10] Re Brookers (Australia) Limited (in liq): Brooker v Pridham (1986) 41 SASR 380 at 382.
[11] See ss 42(1) and (3) of the Limitations of Actions Act 1936 (SA).
As to written acknowledgment of the debt, there is authority to the effect that the inclusion of the debt in the signed accounts of the debtor may suffice.[12] Here, the debt appeared in the accounts of Ulithorne Wines. I am informed that those accounts were duly signed, and I think it can be inferred (from the common ownership) that this acknowledgment was communicated to Ulithorne Vineyard. Certainly there was no evidence from Ulithorne Wines to suggest otherwise.
[12] Stage Club Limited v Millers Hotels Pty Ltd (1981) 150 CLR 535; Re Brookers (Australia) Limited (in liq); Brooker v Pridham (1986) 41 SASR 380 at 385; Lonsdale Sand and Metal Pty Ltd v Federal Commissioner of Taxation (1986) 162 ALR 220 at 232-233.
As to part payment, the balance of the loan account has fluctuated from time to time, and at least at one point in time decreased in amount. It would seem to follow that there must have been part payment of the debt at some point during the relevant period.
In summary, I do not accept that there is any realistic prospect of Ulithorne Vineyard’s claim being time barred, or that the suggestion of a time bar establishes a genuine dispute that the claimed debt was due and payable.
The second limb of Ulithorne Wines’ contention that there is a genuine dispute as to the debt relied upon by Ulithorne Vineyard is founded upon a submission to the effect that there is evidence to suggest that the ‘loan’ referred to in the parties’ accounts represents a capital investment. I understand the argument to be that there is evidence to suggest that money, or capital, was advanced by way of an equity investment rather than debt funding, and that this in some way raises a doubt about the status of the intercompany loan relied upon by Ulithorne Vineyard.
The evidence relied upon by Ulithorne Wines in this respect consists of some passages from the affidavit of Mr Lyu filed in the other proceeding[13], in which he made reference to having purchased an interest in the vineyard and winery in 2013 for a significant sum, apparently in the order of $2.5 million. The statements made by Mr Lyu in this context were very general, and were directed to a contention that he thought he was acquiring 80 per cent and 40 per cent interests in the vineyard and winery, and not the 70 per cent and 30 per cent interests that appear in the ASIC records (through his interest in East Wines Group).
[13] Being action 389 of 2018, and referred to later in these reasons.
I do not think the statements made by Mr Lyu in his affidavits in those other proceedings give rise to any genuine dispute as to the intercompany loan account the subject of the impugned statutory demand. As I mentioned, Mr Lyu’s evidence as to the capital he contributed by way of purchase price was very general. He did not purport to say anything about how that investment was ultimately structured or recorded in the accounts of either Ulithorne Vineyard or Ulithorne Wines.
The existence of a significant loan account ($2.1 million) in favour of East Wines Group in the books of Ulithorne Vineyard would be consistent with his investment having included some debt funding to Ulithorne Vineyard through East Wines Group (of which he and his wife were the shareholders). And it may be that some or all of this was on-lent by Ulithorne Vineyard to Ulithorne Wines and is reflected in the intercompany loan the subject of these proceedings. The evidence does not enable me to reach a conclusion as to these matters. The point is simply that I do not think there is anything in the statements made by Mr Lyu in his affidavits in the main action that is inconsistent with, or otherwise gives rise to any genuine dispute as to, the indebtedness the subject of Ulithorne Vineyard’s statutory demand. Mr Lyu’s reference to his ‘investment’ in the vineyard and winery is entirely neutral as to the form of that investment (that is, whether the capital was to be provided by way of equity or debt).
Similarly, I do not think that the references to a dispute about whether some changes in ownership that occurred in 2016 have been reflected in the parties’ share registers, gives rise to a genuine dispute as to the alleged indebtedness in the statutory demand. That indebtedness appeared in the accounts well prior to the 2016 transaction to which reference was made.
In summary, I have come to the conclusion that there is adequate evidence to establish the existence of the relevant debt, and the fact that it was due and payable at the time the statutory demand was served. In my view, the challenges that have been made to the debt do not rise above mere assertion. There is an insufficient evidentiary basis for the challenges for them to establish a genuine dispute for the purposes of s 459H.
Abuse of process or improper purpose
Under s 459J(1) of the Act, the Court may set aside a statutory demand if it is satisfied:
(a) because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or
(b) there is some other reason why the demand should be set aside.

There were also two broad limbs to Ulithorne Wines’ contention that there is “some other reason” why Ulithorne Vineyard’s statutory demand should be set aside.
The first limb involved a submission to the effect that the demand was an abuse of process, or was otherwise improper, because it overlapped with the matters in dispute in the main action, and hence undermined or interfered with the exercise by Mr Du and Mr Ong of their privilege against self-incrimination.
In order to address this submission, it is necessary to say something about the main action, and the criminal charges against Mr Du and Mr Ong.
The ‘main action’ is a reference to action 389 of 2018 in this Court. At a very general level, that action involves an allegation by the plaintiffs (who include Mr Lyu and Ms Li) that two of the defendants (Mr Du and Mr Ong), with the involvement of the other defendants to varying extents and in varying ways, fraudulently misappropriated funds advanced to them by the plaintiffs in relation to the purchase of three Adelaide properties.
In separate criminal proceedings, Mr Du and Mr Ong are facing criminal charges in respect of the same alleged misappropriations.
As it happens, I have been managing the main action, and in late 2018 ordered that there be a general stay of those proceedings, essentially so as to ensure that Mr Du’s and Mr Ong’s privilege against self-incrimination was protected pending determination of the criminal proceedings which I have mentioned. I made the stay conditional upon the continuation of freezing orders in relation to the defendants’ assets and various other ancillary orders.
Returning to the present proceedings, Ulithorne Wines contends that by reason of the overlap between the circumstances of the alleged debt relied upon by Ulithorne Vineyard in its statutory demand, and the “factual matrix” of the main action, the statutory demand was an abuse of process or otherwise improper. As I understand the submission, it was to the effect that the statutory demand was an improper attempt to circumvent, or would otherwise impermissibly undermine or interfere with, the stay of the main action or the exercise by Mr Du and Mr Ong of their privilege against self-incrimination.
In Reschke Pty Ltd v DiGiorgio Family Wines Pty Ltd[14] I summarised the scope for the operation of notions of abuse of process and improper purpose to inform the application of s 459J(1)(b); and in particular the capacity for impropriety of purpose to constitute “some other reason” for setting aside a statutory demand under that subsection. In the context of the present case, I accept that reliance upon a statutory demand in circumstances where this would operate to undermine or interfere with orders made in other proceedings, or a claim of privilege against self-incrimination, may well establish “some other reason” to set aside a statutory demand under s 459J(1)(b).
[14] Reschke Pty Ltd v DiGiorgio Family Wines Pty Ltd [2017] SASC 187 at [55]-[58], [60].
The difficulty for Ulithorne Wines is that I do not think that the factual premise of its submissions in this respect has been made out. Neither Ulithorne Wines nor Ulithorne Vineyard is a party to the main action. While it may well be that the circumstances surrounding the investment of Mr Lyu (through East Wines Group) in those companies will be the subject of evidence in the main action, the fact and circumstances of the alleged indebtedness the subject of the statutory demand is not a matter directly in issue in those proceedings.
More significantly, and even assuming that aspects of the affairs of Ulithorne Wines and Ulithorne Vineyard come within the factual matrix of matters that might be canvassed within the main action, I do not think this would render the statutory demand an abuse of process, or otherwise be a matter of concern.
In my view, there would only be a concern if the statutory demand, or at least Ulithorne Wines’ ability to respond to it, was in some way affected by a legitimate claim of privilege against self-incrimination. It is true that this is asserted by Ulithorne Wines. Its solicitor has sworn an affidavit in which she deposed that she has been informed by Mr Ong that he “has been advised by his legal representatives for the criminal proceedings that he should not depose to the matters [in issue in these proceedings] for fear of undermining the protection afforded by his privilege against self-incrimination.” The solicitor also deposed that she had been informed by the solicitor for Mr Du that he “has likewise received advice to that effect.” But in my view, these general statements are not a sufficient basis for concluding that Ulithorne Wines has been prejudiced in its response to the statutory demand by legitimate claims of privilege against self-incrimination. There has been no articulation of a basis for believing that any such claim would extend to the circumstances of the impugned indebtedness, or any dispute which may exist as to its existence or terms. The criminal charges being faced by Mr Ong and Mr Du relate to the alleged misappropriations in relation to the three Adelaide property investments referred to earlier, and not any investment in Ulithorne Vineyard or Ulithorne Wines. While in theory there might be some link between the events relevant to those alleged misappropriations and the indebtedness the subject of Ulithorne Vineyard’s statutory demand, it is not something that I would be prepared to assume or infer in the absence of some evidence or explanation.
In the circumstances, I am not satisfied that any overlap with the factual matrix in the main action, or the claim of privilege against self-incrimination by Mr Ong and Mr Du in relation to the criminal charges against them, provide a basis for setting aside the statutory demand under s 459J(1)(b).
The second limb of Ulithorne Wines’ reliance upon s 459J(1)(b) involves a submission to the effect that the statutory demand is an abuse of process because it was issued for the purposes of debt recovery, and in circumstances where there were more appropriate procedures and processes available to Ulithorne Vineyard to seek to enforce the alleged debt. I assume that by “more appropriate procedures and processes”, Ulithorne Wines means ordinary legal proceedings seeking recovery of the alleged debt.
Some care is needed in inferring an improper purpose from the use of a statutory demand for the purposes of debt recovery. I refer to, without repeating, what I said on this topic in Reschke Pty Ltd v DiGiorgio Family Wines Pty Ltd.[15]
[15] Reschke Pty Ltd v DiGiorgio Family Wines Pty Ltd [2017] SASC 187 at [59]-[63]; referring to Poonon Pty Ltd v Deputy Commissioner of Taxation [1999] NSWSC 1121 at [21] and Accordent Pty Ltd v RMBL Investments Ltd (2009) 105 SASR 62 at [55], [58].
In the present case, I do not think there is a basis for concluding that Ulithorne Vineyard issued the statutory demand despite knowledge on its part that there was a genuine dispute as to the indebtedness. I have already set out the reasons why I am not satisfied that there is a genuine dispute, and for similar reasons I consider that Ulithorne Wines was entitled to proceed on that basis.
Further, I do not consider that Ulithorne Vineyard issued the statutory demand in circumstances where it must have known that Ulithorne Wines was solvent. To the contrary, I am satisfied that there was a proper basis for Ulithorne Vineyard to have had legitimate concerns about the solvency of Ulithorne Wines, or at least its ability to pay the alleged debt. The affidavit material relied upon by Ulithorne Vineyard suggests that throughout the period from 2014 to 2017, Ulithorne Wines’ net assets fluctuated between a net deficiency of $269,654 and net assets of $233,987. When this is considered in combination with the bank statements of Ulithorne Wines suggesting a significant diminution in its cash reserves, Ulithorne Vineyard was entitled to have concerns about Ulithorne Wines’ capacity to pay the alleged debt of $1,171,084.
For these reasons, even though Ulithorne Vineyard may well have been motivated at least in part by a desire to apply pressure in an attempt to secure payment of the debt, I do not think that it was improper to utilise the statutory demand mechanism.
I am not satisfied that there is any basis for setting aside the statutory demand under s 459J(1) of the Act.
Conclusion
For the reasons set out, I am not satisfied that Ulithorne Wines has established a basis for setting aside the statutory demand served upon it by Ulithorne Vineyard. To the extent that the request for an adjournment of this application pending the determination of the main action is pressed, I do not think there is any basis for me to make such an order.
It is thus appropriate that I dismiss Ulithorne Wines’ application.