The recent case of United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2018] VSC 347 decided by Elliot J provides a good summary of the directors duties set out in the Corporations Act. Without discussing the facts or findings of this case, the summary of the duties is very useful.
Read MoreThis post considers two recent cases in the Victorian Court of Appeal where applications to set aside statutory demands pursuant to section 459G of the Corporations Act were appealed:
1) Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 5
2) Go Connect Ltd v Sino Strategic International Ltd (in Liq) [2016] VSCA 315
Both cases affirm the principles applicable in applications to set aside a statutory demand.
Read MoreA broad overview of how insolvency law may assist in the context of debt recovery with speed and economy for your client using the statutory demand regime.
Read MoreThe Supreme Court of Victoria uses a checklist to 'groom' applications to set aside statutory demands for any problems before the first return of the matter for directions. The checklist is attached below.
Read MoreThe Court of Appeal in Imagebuild Group Pty Ltd v Fokust Pty Ltd [2017] VSCA 131 (31 May 2017) has confirmed that affidavits in support of applications to set aside statutory demands cannot merely explain the delay in filing an affidavit in support within 21 days of the statutory demand being served (pursuant to s 459G(2) and (3) of the Corporations Act 2001).
However an affidavit filed and served within 21 days which explains delay and verifies on the basis of instructions or otherwise the contents of a ‘foreshadowed affidavit’ to be sworn, may be sufficient to constitute a supporting affidavit.
Read MoreStatutory demands issued for a non-judgment debt must be accompanied by an affidavit which states, inter alia, the deponent’s belief that that there is no genuine dispute about the debt.
Read MoreIn a recent case before an Associate Justice in the Supreme Court of Victoria (unreported) a creditor who issued a statutory demand pursuant to a judgment debt and claimed additional interest without a verifying affidavit withdrew the demand. The court ordered the creditor to pay the alleged debtor's costs on an indemnity basis.
Read MoreThe terms of s 459H of the Corporations Act and the authorities make clear that, on an application to set aside a statutory demand, the applicant is required only to establish a genuine dispute or offsetting claim. The applicant is required to evidence the assertions relevant to the alleged dispute or offsetting claim only to the extent necessary for that primary task.
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