Aldridge Electrical Industries Pty Ltd v Mobitec AB

Supreme Court of NSW|2024-05-08|Before: McGrath J

INTRODUCTION

The plaintiff, Mearth Technology Pty Ltd, applies under s 459G of the Corporations Act 2001 (Cth) to set aside the statutory demand dated 8 February 2024 served on Mearth by the defendant, 40Seas Inc, on 9 February 2024 pursuant to s 459E of the Corporations Act demanding payment of the amount of US$486,355.14.
Mearth was incorporated on 30 March 2017. The sole director and secretary of Mearth is Mr Ming Ye. Mearth is an Australian micromobility company based in Sydney that focuses on the creation, innovation and development of electric scooters.
40Seas is a fintech platform that is involved in cross-border trade financing. 40Seas appears to be based in the United States of America, although its Chief Executive Officer, Eyal Moldovan, is based in Israel.
In general terms, Mearth ordered scooters from China and entered into arrangements between its suppliers pursuant to which the debts owing by Mearth to the suppliers were assigned to 40Seas. Such arrangements are commonly known as debt factoring.
The grounds of the application made by Mearth are those contained in s 459J(1)(a) and (b) of the Corporations Act, being: 1. because of a defect in the statutory demand, substantial injustice will be caused unless the statutory demand is set aside; or 2. there is some other reason why the statutory demand should be set aside.

RELEVANT FACTS

In summary, 40Seas provides payment on assigned account receivable services under an invoice based model, the terms of which are contained in individual Payment of Assigned Account Receivable Agreements. Each arrangement effectively involves: 1. Mearth identifying a supplier it wishes to engage; 2. the supplier agreeing to assign its invoices to 40Seas under a tripartite arrangement in which 40Seas would offer Mearth extended payment terms for a fee; and 3. the payment terms would usually consist of a staggered arrangement where Mearth would pay 40Seas a deposit at the start and then the balance some 30, 60 or 90 days later.
On 11 June 2023, Mearth entered into a Payment of Assigned Account Receivable Agreement with Kixin Electronics. In the Agreement, Kixin is defined as the "Seller", Mearth is defined as the "Buyer" and 40Seas is defined as the "Factor". The recitals of the Agreement, which are set out below, use the parties' respective names in square brackets as replacement for Seller, Buyer and Factor respectively and also leave in place all grammatical and typographical errors.
Those recitals are: PAYMENT OF ASSIGNED ACCOUNT RECEIVABLE AGREEMENT This Invoice Based Model Payment on Assigned Account Receivable Agreement ("Agreement") is made as of 11/6/2023 and entered into by and between Kixin … ("Seller") and Mearth ... ("Buyer"). WHEREAS, [Mearth] purchases goods or services from [Kixin] ("Buyer-Seller Transactions"); WHEREAS, [Mearth] issues purchase orders to [Kixin] and [Kixin] issues invoices to [Mearth] in connection with the Buyer-Seller Transactions; WHEREAS, [Kixin] has entered into an accounts receivable purchase agreement with 40Seas … ("Factor") to sell, assign and transfer certain eligible accounts receivable to [40Seas] from time-to-time arising from Buyer-Seller Transactions ("Accounts Receivable"); WHEREAS, [40Seas] is willing to purchase Accounts Receivable from [Kixin] from time to time if such Account Receivable meet certain eligibility requirements and if certain steps in the Buyer-Seller Transaction are completed on 40Seas' internet-based platform ("Factor Platform"); WHEREAS, Both [Kixin] and [Mearth] have entered into the 40Seas Platform User Agreement with [40Seas]; WHEREAS, [Kixin] intends on uploading invoices in connection with certain Buyer-Seller Transactions ("Uploaded Invoices") on Factor Platform and [Mearth] intends to confirm such Uploaded Invoices on the Factor Platform; WHEREAS, the eligibility requirements for [40Seas'] purchase of Accounts Receivable include [Mearth's] agreement to certain terms and conditions in connection with the Accounts Receivable offered for sale and assignment to the Factor Platform; and WHEREAS, [Kixin] is willing to offer [Mearth] more favorable payment terms rather than requiring immediate payment on certain Buyer-Seller Transactions if [Mearth] agrees to the terms and conditions which will support [Kixin] to meet the eligibility requirements for selling, assigning and transferring Accounts Receivable to [40Seas].
Pausing here, the "accounts receivable purchase agreement" between Kixin and 40Seas is not in evidence and neither is the "40Seas Platform User Agreement".
Continuing with the replacement of the defined terms of "Seller" with Kixin, "Buyer" with Mearth and "Factor" with 40Seas, the relevant operative provisions of the Agreement are as follows: 1. Account Receivable a. This Agreement relates to the Account Receivable corresponding to the invoice identified in EXHIBIT A, attached hereto and incorporated herein, and accessible via the link provided in EXHIBIT A ("Receivable No. KX027369") b. [Mearth] acknowledges and understands that Receivable No. KX027369 will meet certain eligibility requirements for [40Seas'] purchase of such Accounts Receivable and thus will be offered by [Kixin] for sale, transfer and assignment to [40Seas] on Factor Platform. c. If Receivable No. KX027369 is sold, transferred and assigned to [40Seas], [Kixin] will provide or cause [40Seas] to provide to [Mearth] this "Invoice Based Model Notice of Assignment of Account Receivable Agreement" on the Factor Platform advising [Mearth] that [Kixin] has sold, assigned and transferred Receivable No. KX027369 to [40Seas]. [Mearth] shall indicate its acceptance and agreement to such "Invoice Based Model Notice of Assignment of Account Receivable" presented to [Mearth] on the Factor Platform. 2. [Mearth] acknowledges and irrevocably agrees: a. that the invoice identified in EXHIBIT A and accessible via the link provided in EXHIBIT A ("Invoice") that corresponds to Receivable No. KX027369 is true, accurate and complete, and that the Invoice payment terms if set forth in EXHIBIT A and the Invoice due date set forth in EXHIBIT A are true and accurate. b. the Invoice arises from an open account transaction and creates an account payable on [Mearth's] balance sheet for the amount specified on such Invoice ("Buyer's Total Charge"); c. The Invoice represents [Mearth's] debt obligation payable on the Invoice due date specified in EXHIBIT A ("Due Date"), d. that if [Mearth] receives a "Invoice Based Model Notice of Assignment of Account Receivable" advising [Mearth] that [Kixin] has sold, assigned and transferred Receivable No. KX027369 to [40Seas], [Mearth] irrevocably agrees: i. to not assert against [40Seas] any claim, counterclaims, defenses, rights of set-off, recoupment or deduction that [Mearth] may have now or in the future with regard to the Invoice ("Buyer's Waiver"); ii. that Buyer's Waiver is valid and enforceable by [40Seas] against [Mearth] pursuant to Section 9-403 of the Uniform Commercial Code; iii. to pay the full Buyer's Total Charge specified in the Invoice on the Due Date; iv. to grant [40Seas] authority to debit [Mearth's] bank account for the full Buyer's Total Charge on the Due Date and accordingly provide instructions to [Mearth's] bank and payment processer as required within one (1) day of the Effective Date ("Debit Instructions Date"); v. that if [Mearth] fails to grant [40Seas] authority to debit [Mearth's] bank account on the Debit Instruction Date or revokes such authority on or before the Due Date then the applicable Invoice shall become due and owing to [40Seas] immediately and be subject to the Late Payment Fee (as defined below) set forth on such Invoice if payment is not received immediately by [40Seas]; vi. to pay, if applicable, a two percent (2%) monthly late payment fee on overdue amounts and a fifty U.S. dollar ($50 USD) charge for each failed collection attempt from [Mearth's] bank account ("Late Payment Fees") to [40Seas]; vii. to pay, if applicable, all collection costs incurred in collecting the overdue Buyer's Total Charge and Late Payment Fees from [Mearth] including, but not limited to, collection agency fees, attorney's fees and court costs ("Collection Costs"); viii. that making payment of the Buyer's Total Charge, and any applicable Late Payment Fee and Collection Costs, to any party other than to [40Seas] will not satisfy [Mearth's] obligation to make such payment(s); and ix. that [40Seas] assumes no responsibility nor liability for the Seller's Obligations (as defined below in Section 3) in connection with the purchase of Receivable No. KX027369 , and [Mearth] irrevocably agrees to not assert any claim against [40Seas] for any breach of Seller's Obligations. e. to promptly accept and agree to the "Approved Invoice Based Model Notice of Assignment of Account Receivable" corresponding to Receivable No. KX027369 presented on the Factor Platform; and f. that [40Seas'] agreement to purchase Receivable No. KX027369 from [Kixin] will be undertaken in reliance on [Mearth's] execution of this Agreement.
The provisions contained in the "Miscellaneous" section 4 of the Agreement include, inter alia, that the governing law of the Agreement is the laws of the State of New York, USA, and that each party to it irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the State of New York.
The form of "EXHIBIT A" which is referred to in the Agreement is as follows: Buyer's Total Charge: A$194,521.93 Invoice payment terms: Net 90 Due date: 2/4/2024 To view the Invoice, click here: [a hyperlink to the invoice is then set out]
On 6 November 2023, Kixin gave a document titled "Invoice Based Model Notice of Assignment" (Assignment) to Mearth in the following form (using the same replacement of definitions): You are hereby notified that as at 11/6/2023 Kixin…("Seller") has, pursuant to an accounts receivable purchase agreement with 40Seas… ("Factor"), sold, assigned and transferred to [40Seas] the account receivable identified in EXHIBIT A, attached hereto and incorporated herein ("Receivable No. KX027369"). Receivable No. KX027369 relates to the invoice issued by [Kixin] to you and referenced in EXHIBIT A ("Invoice"). Accordingly, you must pay to [40Seas] the "Invoice Amount" specified in the Invoice and referenced in EXHIBIT A ("Buyer's Total Charge"). Payment of the Buyer's Total Charge to any other party, including to [Kixin], will not satisfy your obligation to make payment on the Buyer's Total Charge due and owing on Receivable No. KX027369. Additionally, you must pay a monthly late payment fee on any Buyer's Total Charge not paid in accordance with the terms set forth in the Invoice. Payment to [40Seas] must be made as set forth in the Invoice Based Payment of Account Receivable Agreement. Payment made in accordance with any other payment instructions will not satisfy your obligation to make payment on the Buyer's Total Charge due and owing on Receivable No. KX027369. By approving this letter, you acknowledge and agree with this Notice of Assignment and confirm that the terms and conditions of the Invoiced Based Model Payment of Assigned Account Receivable Agreement entered into by you and [Kixin] and dated 11/6/2023, are and shall remain in full force and effect.
The form of "EXHIBIT A" to the Assignment is precisely the same as "EXHIBIT A" to the Agreement, the form of which is quoted above.
The Assignment also contains an "EXHIBIT B" but no reference is made to any "EXHIBIT B" in the operative parts of the Assignment. The form of "EXHIBIT B" states: Mearth … grants 40Seas … permission to debit its bank account on the invoice due date and to verify the bank account ownership using GoCardLess.com. Mearth … undertakes to maintain such permission continuously until all the amounts due to 40Seas are fully repaid.
The invoice which is referred to in the Agreement and the Assignment, and identified as "EXHIBIT A" to the Agreement and the Assignment, which was the principal focus at the hearing of the application, is the invoice number KX027369 dated 30 October 2023 issued by Kixin to Mearth (October Invoice) in the following form:
In addition to the October Invoice, the following further invoices were issued by various suppliers (including Kixin) to Mearth (Further Invoices, or singularly, Further Invoice) which are the subject of the statutory demand (with the "due date" being as stated on each invoice): Date Due Date Invoice number Amount Supplier 27.11.23 25.2.24 HL-20231023J US$52,492.22 Ningbo Hiley Technology Co Ltd 28.11.23 26.2.24 KX023070 US$109,617.30 Kixin 4.12.23 3.3.24 HYFSE2311-013 US$16,728.87 Holifu Industrial Limited 15.12.23 14.3.24 KX027364 US$38,841.79 Kixin 22.12.23 21.3.24 KX027155 US$76,303.22 Kixin 28.12.23 27.3.24 HYFSE2311-014 US$12,808.46 Holifu Industrial Limited 20.1.24 30.4.24 JL120240120 US$52,424.76 Wuxi Jiulan Electric Technology Co Ltd

On their face, each of the Further Invoices fell due for payment at various times between 25 February 2024 to 30 April 2024. The assignments of the Further Invoices to 40Seas were given at various times between 27 November 2023 and 2 February 2024.
Each of the Further Invoices express an amount due for payment in US dollars. The October Invoice expresses an amount due for payment in Australian dollars.
It is common ground that the terms of the agreement accompanying each of the Further Invoices (Further Agreements) were in exactly the same form as the Agreement for the October Invoice (with the only difference being the form of Exhibit A to each of the Further Agreements), and the terms of the assignment for each of the Further Invoices (Further Assignments) were exactly the same as the Assignment (with the only difference being the form of Exhibit A to each of the Further Assignments).
Mearth had established debit banking arrangements in place to pay each of the October Invoice and the Further Invoices until 4 February 2024. Ensign represented 40Seas in relation to payment issues on the October Invoice.
On 4 February 2024, a number of technical difficulties arose in relation to the debit banking system during the payment of the October Invoice. Ming Ye of Mearth communicated with Ensign over Wechat text messages about these difficulties. The Chinese to English translation of these Wechat messages relevantly state: 4 February 2024 Ensign: Director Ye, I need to communicate with you about something urgent. Is it convenient for me to call you now? … Ming Ye: Hi Ensign, I am receiving a client today. Ming Ye: The call has to be a little later. Ensign: Sorry to bother you on the weekend. Since there is an invoice due today and EVOLVE BANK & TRUST has stopped the cooperation with Wise, the EVOLVE BANK & TRUST… 5868 you bound earlier will lead to failure of repayment. That's why we need to re-bind your account. Ensign: At the same time, since we deduct US dollars, please ensure that there is sufficient US dollar balance in your account. Ming Ye: It's okay. Why did Evolve and Wise stop their cooperation? Is it our problem or their own problem? Ensign: Their reasons Ming Ye: So it has been changed to automatic deduction? Ming Ye: I have also specifically told the finance department that it was not automatically deducted. Ming Ye: I'm a little confused, what should I do now? Ensign: 1. Evolve and Wise have stopped their cooperation, and as a result our deduction will fail with the US dollar account you bound earlier. So you need to rebind. 2. The reason that I previously said it was not automatically deducted was because I thought the link to your Evolve account was still valid and the new binding was only to increase your credit limit. Conclusion 1. For the currently due invoice, you can either transfer it directly to us (I will provide our US dollar account shortly), or bind it as soon as possible so we can make a deduction. 2. For future deductions, we still need you to rebind Wise so we can make deductions. Ensign: 40Seas bank account [Details of 40Seas bank account details in Brussels] If you want to transfer money to us (in US dollars), you can transfer it to this account, which is also a Wise account, and it will be very fast. Ensign: [Details of 40Seas bank account details in New York] Ensign: If you want to transfer money, use this. Sorry Ensign: This is an Euro account. I sent it wrongly. Ensign: When it is convenient, please call me and I will explain it to you and tell you what the more appropriate operations will be subsequently. Thanks Ming Ye: This is the one for US dollar, right? Ensign: [Details of 40Seas bank account details in New York] Ensign: This one Ensign: This time you can transfer $127,138.52 through Wise first. Then complete the binding of the new account as soon as possible (it is still the previous Wise account, but the US dollar account within which has changed, so it needs to be rebound) Ensign: So for the current invoice, Director Ye, are you planning to make a direct Wise transfer first and bind Wise afterwards, or bind it directly and let us make an entrusted deduction afterwards? (Since today is the due day, we need to confirm the plan) Ming Ye: If binding is required subsequently, then just go ahead with the binding. Ensign: OK. Can it be completed today? Ming Ye: Let me complete it tomorrow. I will ask the finance department to do it. It's late tonight. Ensign: OK, I'll notify the finance department. 5 February 2024 Ensign: Director Ye, good morning. Please remember to finish it today. Ming Ye: Definitely Ensign: Director Ye, the binding has not been completed. Our invoice has been overdue for one day. Ming Ye: I clicked the link but couldn't log into 40seas … Ensign: It's in the process of troubleshooting. The problem arises because you are an Australian company, and the debit method is not very smooth in Australia. If it really doesn't work, please kindly transfer the money this time. I will confirm as soon as possible Ensign: Director Ye, in order to ensure more stable deductions, we will inform you to do the binding after testing. For overdue invoices, please make a direct Wise transfer to our US dollar account this time. Wise supports ACH transfers so it will be very fast. Ensign: [Details of 40Seas bank account details in New York] Ensign: $127,138.52 Ensign: Is that okay? Ensign: Director Ye, please pay as soon as possible, otherwise it will affect your credit limit. Regarding automatic deduction, we did encounter the impact from the third-party, Wise; we will solve it today or tomorrow. For this payment, please manually make a Wise transfer. Ming Ye: Okay, the finance department has already finished their work day today. It is three hours later here than in China. Ming Ye: The staff in finance department are all foreigners and they get off work on time. Ensign: It's really not good continuing like this. Ming Ye: It would be best if payments were made automatically once it's linked up Ming Ye: I'll just asked the finance department to transfer it tomorrow if it doesn't work. Ming Ye: No delay for both sides Ensign: We have provided an alternative transfer solution. No need to wait on us. Ensign: But of course we will fix it tomorrow. Ming Ye: I didn't do things repeatedly (emoticon). Ensign: I'm not talking about you. I'm talking about our IT team checking the error reports repeatedly. …
The Wechat text messages make reference to the concepts of "bind", "binding" and "rebind". This is a form of electronic authority given to Ensign, the platform operator, and in effect, it is a debit authority.
Clearly, despite this long text exchange over the payment of the October Invoice, it remained outstanding. In addition, there is no evidence that Mearth ever re-established the "binding" or direct debit authority to pay the October Invoice or any of the Further Invoices. The October Invoice and the Further Invoices all remain unpaid. Further, it was also abundantly clear from this exchange that Ming Ye of Mearth understood that the payment of the October Invoice was to be made in US dollars.
On 8 February 2024, 40Seas issued the statutory demand.
The description of debt in the statutory demand is: Amount due on unpaid invoices issued to the company between 30 October 2023 and 2 February 2024 and such invoices assigned to the creditor.
The statutory demand states the amount of debt as a single figure expressed as US$486,355.14.
The affidavit of Eyal Moldovan sworn 8 February 2024 (Moldovan Affidavit) in support of the statutory demand lists each of the invoices comprising the sum of US$486,355.14, including the October Invoice in the amount of US$127,138.52 issued by Kixin.
The form of the October Invoice uses a "USD:AUD" conversion rate of 1.53, which converts the amount owing under the October 2023 Invoice of A$194,521.93 to US$127,138.52. The October Invoice does not express the amount owing as US$127,138.52, and there is nothing in the statutory demand or the supporting affidavit which states that such a conversion at that rate has been made.
On 9 February 2024, the statutory demand was served on Mearth.

LEGAL PRINCIPLES

Section 459J of the Corporations Act is in the following terms: (1) On an application under section 459G, the Court may by order set aside the demand if it is satisfied that: (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. (2) Except as provided in subsection (1), the Court must not set aside a statutory demand merely because of a defect.

Defects - s 459J(1)(a)

Section 9 of the Corporations Act defines "defect", in relation to a statutory demand, as including the following: (a) an irregularity; and (b) a misstatement of an amount or total; and (c) a misdescription of a debt or other matter; and (d) a misdescription of a person or entity.
The principal authorities on the application of s 459J(1)(a) of the Corporations Act concerning a "defect" in a statutory demand causing "substantial injustice" can be summarised as follows: 1. The definition of "defect" in s 9 is inclusive, and the term should be given its ordinary meaning (being a lack or absence of something necessary or essential for completeness; a shortcoming or deficiency; an imperfection) and then, if not otherwise included, the deemed statutory meanings as well: Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226, Lockhart J at 237-8. 2. The company on which the statutory demand is served must be able to identify with precision each debt on which the statutory demand is based because, if it cannot, it will be denied the ability to even begin to consider whether there is a genuine dispute in relation to the debt: Condor Asset Management Ltd v Excelsior Eastern Ltd (2005) 56 ACSR 223; [2005] NSWSC 1139, Barrett J at [28], applied in Re YCH Logistics (Australia) Pty Ltd [2013] NSWSC 1874, Brereton J at [10]. 3. A statutory demand must be unambiguous and if ambiguity exists within a statutory demand such as to produce doubt in the mind of any reasonable reader as to the course that must be taken in order to avoid a situation where the statutory presumption of insolvency is created, the demand is defective: AR Pilot Pty Ltd v Gouriotis [2007] NSWSC 396, Barrett J at [29]. 4. The debtor company is not and cannot be expected to guess which of several possible courses suggested by the statutory demand is to be taken by it to forestall the statutory presumption of insolvency or to initiate inquiries of its own in order to ascertain the required course, and while some familiarity on the debtor company's part with the relevant subject matter may be presumed, it is not obliged to speculate exactly what it is that the creditor demands: Main Camp Tea Tree Oil Ltd v Australian Rural Group (2002) 20 ACLC 726; [2002] NSWSC 219, Barrett J at [37]. 5. If the demand is so vague or ambiguous that it fails to identify, to a reasonable person in the shoes of a director of the debtor company, the general nature of the debt to a sufficient degree that the director can assess whether there is a genuine dispute as to the existence or amount of the debt or an offsetting claim, then there is a lack of something necessary for completeness, and therefore a defect in the demand: LSI Australia v LSI Holdings; LSI Australia v LSI Consulting (2007) 25 ACLC 1602; [2007] NSWSC 1406, Austin J at [54], applied in YCH Logistics, Brereton J at [10]. 6. In relation to a statutory demand for multiple debts, it must give a description of the individual debts and state their amounts as well as state the total of those amounts, because the statutory demand must comply with s 459E(2) of the Corporations Act, including the prescribed form 509H: Chippendale Printing Co Pty Ltd v Deputy Commissioner of Taxation (1995) 55 FCR 562, Lindgren J at 579, approved in Condor Asset Management, Barrett J at [20]-[22] and applied in YCH Logistics, Brereton J at [10]. 7. The substantial injustice to which s 459J(1)(a) is directed is the statutory presumption of insolvency which will arise in any subsequent winding up proceedings if the statutory demand is not set aside: LSI Australia, Austin J at [57]. 8. The question of whether a defect is of such a quality to not be productive of substantial injustice must be addressed in its context: Condor Asset Management, Barrett J at [25]. 9. A defect will not be productive of substantial injustice if the demand, viewed in the light of what the company already knows or ought reasonably to be expected to know, contains sufficient information to assess its liability for the amounts demanded: Condor Asset Management, Barrett J at [25].

Foreign currency and conversions - s 459J(1)(a)

In Daewoo Australia Pty Ltd v Suncorp-Metway Ltd (2000) 48 NSWLR 692; [2000] NSWSC 35, Austin J considered the question of whether a statutory demand which states the amount of a debt in a foreign currency contains a defect for the purposes of s 459J(1)(a) and concluded at [35]: In the case of a statutory demand relating to a contractual obligation to make payment in foreign currency, it seems to me that practical considerations point to permitting the demand to be expressed in foreign currency. Ex hypothesi, the debtor has agreed to make payment in the foreign currency, and can be taken to understand what he has to do. In such a case there is no lack of clarity in the foreign currency demand.
In Daewoo Australia, Austin J also confronted the argument that because s 459E(2)(e) requires that the statutory demand must be in the prescribed form (Form 509H) which provides for the creditor to state that the debtor company owes it "the amount of $(insert amount)", expressing the debt in a foreign currency means that the statutory demand does not meet the prescribed form. Austin J said at [39]: …in my view a debtor presented with a statutory demand for payment of a foreign currency amount in circumstances such as the present, where the demand relates to an agreement which entitles the creditor to be paid in foreign currency, would have no doubt that in order to comply with the demand, it must pay the amount of foreign currency or seek the creditor's acceptance of an equivalent amount in another currency, calculated using the exchange rate applicable at the time of payment.
In addition, in Daewoo Australia, Austin J at [40]-[41] referred to Vehicle Wash Systems Pty Ltd v Mark VII Equipment Inc (1997) 25 ACSR 709; (1997) 80 FCR 571 (which concerned a statutory demand for a US dollar amount) and identified that it was not sufficient to only consider whether the expression of the debt in a foreign currency in the statutory demand is a "defect" but whether it met the description used in s 459J(1)(a) - "because of a defect in the demand, substantial injustice will be caused unless the demand is set aside". At [42] Austin J stated: …I conclude that the demand in the present case is a statutory demand for the purposes of s459E because it is a demand for the amount of a debt, and it is not defective because it substantially complies with the prescribed form. But even if it were defective because it is a demand for payment of foreign currency, no substantial injustice would be caused if it were not set aside.
In Aldridge Electrical Industries Pty Ltd v Mobitec AB (2001) 39 ACSR 287; [2001] NSWSC 823, Santow J dealt with an appeal from a decision of Master McLaughlin to dismiss an application to set aside a statutory demand. One of the grounds of appeal was that an arbitrary date was chosen on which to convert the debt in Swedish krone to Australian dollars. At [24] Santow J found that it is permissible for a creditor to serve a demand for the Australian dollar equivalent of a debt owed in a foreign currency. In relation to the date of conversion to Australian dollars, Santow J at [27] said: ….subject to the contract between the parties, the appropriate dates would ordinarily be: (i) the date of the statutory demand, consistent with Lockhart J in Topfelt Pty Ltd v State Bank of NSW Ltd (supra) at 22 who expressed the view that it was prudent for a creditor to state the amount actually due at the date of the demand; (ii) the date of service, which is said to be a less preferred date (see Lockhart J in Topfelt Pty Ltd (supra)); or (iii) the date for the scheduled payment which had not been made, that being the date of breach.
In Aldridge Electrical, Santow J at [29] expressed the view that if the date selected for conversion of currency was not one of the three appropriate dates identified above, then the statutory demand would suffer from a "mere defect" - not ordinarily of the kind "where substantial injustice will be caused unless the demand is set aside". Santow J said at [30] that if the date selected for conversion is at least potentially inappropriate such that the statutory demand suffers from a defect, it is still necessary to consider whether the defect gives rise to substantial injustice so as to be set aside under s459J(1)(a) of the Corporations Act, notwithstanding s459J(2). The latter question turned on whether the statutory demand stated the date and rate by which the Australian dollar equivalent of the Swedish krone had been calculated, such that there is no burden placed on a debtor to make its own inquiries as to whether the sum demanded was a proper representation in Australian dollars of the debt at some date appropriate under the law for conversion (Aldridge Electrical at [29]).
In JTEC v Industrial Development Agency (Ireland) [2003] NSWSC 10, Berecry AM dealt with an application to set aside a statutory demand on the basis that the agreement which gave rise to the alleged debt contained an obligation to make payment in Irish pounds, but that the statutory demand was expressed in both Irish pounds and Euros without making clear the applicable exchange rate, or the relevant date for conversion. Berecry AM at [25] noted the plaintiff's concession that the defendant may issue a statutory demand in a foreign currency following Daewoo Australia and then said at [27]-[28]: [27] In Aldridge Electrical Industries Pty Ltd v Mobitec AB [2001] NSWSC 823 (unreported), Santow J said that where a creditor had nominated a conversion date that was not either the date of the statutory demand or the date of service or the date of the scheduled payment, such date of conversion was not a fundamental flaw in the demand. Information was available to the debtor on either the face of the statutory demand or in the accompanying affidavit, making it clear whether or not the statutory demand was calculated on either an appropriate or inappropriate date. His Honour said that in such a situation a debtor will not be impermissibly burdened with the need to make enquiries outside of the material it holds. His Honour then considered whether or not the defect gave rise to a substantial injustice. In his Honour's opinion, where the selected date for conversion is at least potentially inappropriate, the demand suffers from a defect. However, it is necessary then to determine whether or not the defect would give rise to a substantial injustice so as to require it to be set aside under s459J(1)(a) of the Corporations Act, 2001. In his Honour's view, the onus was on the debtor to establish that a disadvantage or prejudice may have been suffered by virtue of the defect in the demand. In that case, in the absence of any evidence from the debtor of any prejudice, his Honour was of the view that the defect did not give rise to a substantial injustice requiring the demand to be set aside. [28] In the present case, the plaintiff's concern is that the debt is expressed in two foreign currencies and there is no reference made to the conversion date from Irish pounds to euro. Neither the statutory demand nor the affidavit set out the basis for a reference to the euro. Therefore, it would seem to me that, unlike the position in Aldridge Electrical Industries Pty Ltd v Mobitec AB (supra), the debtor was required to look beyond the documents served on it to determine the relevance of the reference to the euro.
I propose to follow the approach taken in Daewoo Australia and in Aldridge Electrical. It is in keeping with the law recognising the realities of modern commerce in which contracts frequently contain obligations to make payments in foreign currency. The days of regarding a foreign currency as being a commodity and incapable of creating a "debt" (as held in Jolley v Mainka (1933) 49 CLR 242 by Dixon J at 260) have long since passed. The approaches in Daewoo Australia and Aldridge Electrical also emphasise that the key question raised by s 459J(1)(a) is whether or not the defect would give rise to substantial injustice.

Some other reason - s 459J(1)(b)

The ground for setting aside a statutory contained in s 459J(1)(b) for "some other reason" is distinct from the ground contained in s 459J(1)(a). The use of the disjunctive "or" between them makes this clear. In Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262, Barrett JA (Beazley P and Gleeson JA agreeing) at [18]-[25] analysed the cases which had dealt with s 459J(1)(b), concluding that: 1. The "substantial injustice" criterion to which express reference is made in s 459J(1)(a) is not, by some process of osmosis, imported into s 459J(1)(b) (at [23]). 2. The operation of s 459J(1)(b) is not confined to cases coming within established categories and applies whenever there is a need to counter some attempted subversion of the intended operation of Part 5.4 of the Corporations Act, for the purpose of meeting the demands of justice (at [24]). 3. Section 459J(1)(b) is a remedial provision under which the court may deal with cases not within s 459H or s 459J(1)(a) in a way that is just, having regard to the purpose of the legislation (at [25]). 4. It is unwise to attempt to mark out the limits of the s 459J(1)(b) power (at [25]).
In In the matter of Australian Institute of Fitness (Vic & Tas) Pty Ltd [2016] NSWSC 1143, Barrett AJA at [38] emphasised that: Section 459J(1)(b) is not concerned with "injustice" in some amorphous sense.
The following further statements made in Kisimul Holdings by Barrett JA at [32]-[33] about the statutory scheme in Part 5.4 are instructive to the operation of s 459J(1)(b): [32] The quality of the debt as undisputed is central to the proper working of Pt 5.4. A presumption of insolvency can be allowed to arise through non-compliance with a demand for payment of a debt only if the debt is uncontroversially owing, due and payable. Unless the debt is of that kind, it cannot safely be presumed that non-payment is the product of inability to pay. [33] A creditor seeking the benefit of a statutory presumption of insolvency through service of a statutory demand has a responsibility to ensure that, so far as it is aware, the debt relied on is owing, due, payable and undisputed - or, more accurately, a responsibility not to rely on the debt unless it genuinely believes it to be of that kind. And the company served with the demand has a right, secured to it by s 459E(3)(b) and the provision of the rules requiring adherence to Form 7, to be assured that the demanding creditor recognises that responsibility and has conscientiously formed a belief that the responsibility has been discharged.
In In the matter of Gemi 169 Pty Ltd [2024] NSWSC 615, Black J at [27] emphasised that the court's power under s 459J(1)(b) to set aside a creditor's statutory demand where there is some other reason for it to do so, exists to maintain the integrity of the process provided under Pt 5.4 of the Corporations Act and is to be used to counter an attempt at subversion of the statutory scheme, but is not exercised by reference to subjective notions of fairness.

Inclusion of amounts not yet due and payable in statutory demand

In Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd (1996) 20 ACSR 746; [1996] NSWSC 199, Bryson J at 750 held that including amounts not yet due for payment with amounts due for payment in a statutory demand is a defect in that statutory demand, stating that: Taken in whole these statements are incorrect as $43,621.78 was not due for payment at the date of the statutory demand, and in the context of the statutory demand and what it required it is obvious that the references to debts do not relate to debts which exist in the present but are not to fall due for payment until a future time. The inclusion with debts which were due of a claim for payment of debts which at the date of the statutory demand had not fallen due is in my opinion a defect in the demand within the general meaning of "defect". As a defect it goes well beyond misstatement, misdescription and the other matters referred to in the definition of inclusion in s 9; it is more than a misstatement of an amount or total, and more than a misdescription of a debt to include a sum which is simply not payable at all in a demand for payment with threats of adverse consequences.
The view stated in Portrait Express was expressly the subject of disagreement in NT Resorts Pty Ltd v Deputy Commissioner of Taxation (1998) 153 ALR 359 by Finkelstein J at 365, who said: The view that I have reached is that where a creditor serves a statutory demand that relates to a debt that is not due and payable this is a deficiency of a more fundamental character than a defect that may be the subject of an application under s 459J(1)(a). In my view the word "defect'" connotes the notion of something that is faulty or imperfect in the demand. It involves a fault or imperfection that might have been avoided. It does not cover the case of the inclusion in a demand of a debt in respect of which the statutory demand procedure is not available at all. In this regard I am in disagreement with the decision in Portrait Express. I appreciate that in Australian Securities Commission v Marlborough Goldmines Ltd (1993) 177 CLR 485; 112 ALR 627 the High Court has made it quite clear that in the case of uniform national legislation such as the Corporations Law a single judge should not depart from an interpretation placed on that legislation by another judge unless convinced that the other interpretation is plainly wrong. I am convinced that Portrait Express is wrong on the point under consideration.
Importantly, in NT Resorts, Finkelstein J at 366-367 stated that although it was not necessary to reach a concluded view, where there is a question about whether the debt the subject of the statutory demand was due and payable, the application to set aside the statutory demand could be made under s 459H(1)(a) (there "is a genuine dispute … about the existence … of a debt to which the demand relates") or s 459J(1)(b) ("there is some other reason why the demand should be set aside"), with Finkelstein J inclining to the view that s 459J(1)(b) is the only available ground. Finkelstein J at 367 said: In reality it is not necessary to reach a concluded view on the matter (although I should say that I incline in favour of the view that s 459J(1)(b) is the only available ground) for the reason that the standard of proof would in either case be the same. That is to say if the application must be made under s 459J(1)(b) the court would not exercise its discretion to set aside the demand unless it was satisfied that there was a genuine dispute about whether the debt to which the demand relates was due and payable.
Since the views stated in NT Resorts, further decisions of this court have been made on the issue. In Re Renu Waste Pty Ltd [2020] NSWSC 108, Rees J at [25]-[32] outlined those views in the following way: [25] The company does not dispute the existence of the debt claimed by the creditor, but does dispute that the debt is "due and payable". The company submitted that this is a genuine dispute within the meaning of section 459H of the Corporations Act as to whether the debt is due and payable. [26] The courts have vacillated as to whether such a dispute should be dealt with under section 459H(1)(a), section 459J(1)(a) or section 459J(1)(b). Section 459J(1) provides: (1) On an application under section 459G, the Court may by order set aside the demand if it is satisfied that: (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. [27] Initially, in Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd [1996] NSWSC 199; (1996) 20 ACSR 746; (1996) 132 FLR 300 at 304, Bryson J held that the inclusion of debts in a statutory demand that had not fallen due for payment constituted a defect in the demand rendering it liable to be set aside under section 459J(1)(a). In NT Resorts Pty Ltd v Deputy Cmr of Taxation (1998) 16 ACLC 957; (1998) 153 ALR 359 at 367, Finkelstein J disagreed and was inclined to favour the view that section 459J(1)(b) was the only available ground but considered that, in reality, the standard of proof in either case was the same as, if the application must be made under section 459J(1)(b), the Court would not exercise its discretion to set aside the demand unless it was satisfied that there was a genuine dispute about whether the debt to which the demand related was due and payable. NT Resorts was followed in Midland Imports v Asia Pacific [1999] NSWSC 12 per Austin J at [27], Map Plumbing Services Pty Ltd v BB Enterprises Pty Ltd (2000) 35 ACSR 135; [2000] NSWSC 820 per Santow J at [44] and Streetwise Property Projects Pty Ltd v Higgins [2005] NSWSC 535 at [19] per Master Macready. [28] In contrast, such a contention was simply dealt with as a genuine dispute under section 459H(1)(a) in A R Pilot Pty Ltd v Gouriotis [2007] NSWSC 396 per Barrett J at [19]; United Capital Properties Pty Ltd v Handbury Asset Management Pty Ltd (2011) 86 ACSR 161; [2011] FCA 1075 per Stone J; In the matter of Carbon Polymers Limited [2013] NSWSC 376 per Brereton J at [25] and In the matter of Forza Plumbing Systems Pty Ltd [2013] NSWSC 1234 per Brereton J at [19]. [29] In In the matter of MK Group Phoenix Pty Ltd [2014] NSWSC 1467, Black J gathered these strands and concluded that a statutory demand claiming monies which were not due and payable gave rise to a defect in the demand that would cause substantial injustice for the purposes of section 459J(1)(a), would also be an abuse of the statutory demand procedure for the purposes of section 459J(1)(b), and, in that case, should also be set aside by reason of a genuine dispute as to whether the monies were due and payable: at [27], [41]. In In the matter of Tuffrock Pty Ltd [2015] NSWSC 738, Black J noted that a genuine dispute as to whether the debt is due and payable can provide a sufficient basis to set aside a creditor's statutory demand under section 459J(1)(b), and was satisfied in that case that a genuine dispute had been established as to whether the debt was due and payable and set the demand aside under section 459J(1)(b): at [15], [18]. [30] The same approach was taken by Barrett AJA in In the matter of PostNet Australia Pty Ltd [2017] NSWSC 160 at [16] -[17] and Gleeson JA in In the matter of Longjing Pty Ltd (2017) 123 ACSR 456; [2017] NSWSC 1534 at [44]. More recently, in AspectFP Pty Ltd v Messer [2019] VSC 249, Gardiner Asj J concluded that the plaintiff's proposed construction of a loan agreement was completely untenable, being that interest would only be payable at the plaintiff's whim if and when it decided to repay the principal debt: at [23]. On the proper construction of the loan agreement, interest was due and payable. There was thus no genuine dispute under section 459H that the interest was due and payable. [31] As to the onus and standard of proof, Gleeson JA noted in Longjingat [46]: … it is common ground that the same approach in terms of "onus" should apply under s 459J(1)(b) to the issue whether the debt the subject of the demand is not presently due and payable, as would be the case if the issue arose in the context of whether there was a "genuine dispute" in relation to the debt under s 459H(1). That is, the relevant question is whether there is a "plausible contention requiring investigation" that the debt is not presently due and payable: Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601 at [55] (Beazley P, Meagher JA and Gleeson JA). In this regard, Gleeson JA expressed doubt as to the majority view in MNWA Pty Ltd v Deputy Cmr of Taxation (2016) 250 FCR 381; [2016] FCAFC 154 that proof on the balance of probabilities applied, noting that the majority's comments were obiter: at [47]-[48]. Those doubts were shared by Black J in In the matter of JF Essential Power Pty Limited [2018] NSWSC 435 at [24], where his Honour followed the dissenting judgment in MNWA: … It is only necessary for [the plaintiff] to establish that there is a plausible contention requiring investigation that the debt is not presently due and payable, and it need not establish that matter on the balance of probabilities: MNWA Pty Ltd v Deputy Commissioner of Taxation [2016] FCAFC 154; (2016) 117 ACSR 446 at [131] ; Re Longjing Pty Ltd … at [46]. In JF Essential Power, there was a genuine dispute whether there was a loan as opposed to an investment of capital or a gift in an inter-family transaction. The evidence established that there was a serious question to be tried as to whether any debt owed was due and payable on demand or only when the borrower had the capacity to pay it, a condition which was not then satisfied. [32] Thus, when a company applies to set aside a statutory demand on the basis that there is a genuine dispute, not as to the existence or the amount of the debt, but whether it is due and payable within the meaning of section 459E, then the Court may set it aside either under section 459H(1)(a), 459J(1)(a) or 459J(1)(b), but, whichever route is taken, the Court must be satisfied before doing so that there is a "plausible contention requiring investigation" that the debt is not presently due and payable.
In the present case, Mearth expressly eschewed any reliance on s 459H of the Corporations Act as a basis for setting aside the statutory demand. I propose to follow the approach of Black J in MK Group and Tuffrock and give consideration to whether there is a genuine dispute as to whether the debt to which the statutory demand relates is not yet due and payable as a basis for setting the statutory demand aside under both s 459J(1)(a) and (b).

Issue 1: should the statutory demand be set aside because the alleged debt is expressed as a single amount?

Mearth submit that the statutory demand should be set aside under s 459J(1)(a) because it states a global amount of US$486,355.14, which is a defect that will cause substantial injustice if it is not set aside.
40Seas says in response that s 459E(2)(b) makes plain that if there is more than one debt relied upon, that the demand must state what the total sum is, that is the total amount of the debt. 40Seas further state that the Moldovan Affidavit in support of the statutory demand sets out each of those invoices that comprise the total sum by reference to invoice number, date and particular amount.
As stated in Chippendale Printing, a statutory demand for multiple debts must give a description of the individual debts and state their amounts as well as state the total of those amounts. It is not sufficient for the statutory demand to only provide a total amount because the prescribed form 509H requires each debt to be stated as well as the total of the debts. I consider that the failure to state the amount of each debt in the statutory demand is a deficiency that constitutes a defect in it.
I am not, however, persuaded that because of this defect substantial injustice will be caused unless the statutory demand is set aside. This is because the Moldovan Affidavit accompanied the statutory demand and it identified the details of each invoice - the number, the date, the amount and the entity who issued it. Applying the test described in Condor Asset Management, I consider that when the statutory demand is considered in the context of what Mearth knew or ought reasonably to be expected to know from reviewing the Moldovan Affidavit when read with the statutory demand, Mearth would have no difficulty determining each individual amount which comprised the total amount stated in the statutory demand. Mr Ye's first affidavit lists the amounts owing under each of the October Invoice and the Further Invoices which strongly demonstrates that he had no confusion about the composite amounts which made up the global amount sought in the statutory demand.
For these reasons, the expression of the amount in the statutory demand as a global amount is not a basis for setting aside the statutory demand under s 459J(1)(a) of the Corporations Act.

Issue 2: should the statutory demand be set aside because the whole of the alleged debt was not due and payable?

Mearth submitted that the statutory demand should be set aside under s 459J(1)(a) or 459J(1)(b) because the majority of the alleged debt expressed as a single amount of US$486,355.14 was not presently due and payable at the time the statutory demand was issued. Mearth says that only the October Invoice was due and payable as at 8 February 2024 and that each of the Further Invoices were not due and payable until after that date.
40Seas relies on clause 2(d)(v) of the Agreement which states that, if at any time Mearth fails to grant or revokes authority to debit Mearth's bank account on or before the due date, then the amount on the "applicable invoice" shall become due and owing to 40Seas immediately. 40Seas also points to Exhibit B to the Assignment which stipulates that Mearth grants 40Seas permission to debit its bank account on the invoice due date and to verify the bank account ownership and that Mearth undertakes to maintain such permission continuously until all the amounts due to 40Seas are fully paid. According to 40Seas, the Wechat messages of 4 and 5 February 2024 evidence that the "binding" of the direct debit had failed and there is no evidence that the "rebinding" had occurred at any subsequent time for any other invoice. 40Seas says that the end result is that there is no authority that would enable 40Seas to be able to deduct money from an account of Mearth.
In light of this, 40Seas submits that where there has been either a revocation or withdrawal of the "binding" (the direct debit authority) by Mearth with no evidence that steps had been taken to "rebind", then under cl 2(d)(v) of the Agreement each of the invoices became immediately due and payable notwithstanding whatever due date might have appeared on the face of those invoices.
In my view, cl 2(d)(v) in each of the Agreement and the Further Agreements operated such that when the direct debit authority was revoked or withdrawn by Mearth on 4 February 2024 as evidenced in the Wechat text messages, each of the amounts in the October Invoice and the Further Invoices became immediately due and payable. By 4 February 2024, each of the Assignment and the Further Assignments had occurred (the last one having occurred on 2 February 2024) so each of the October Invoice and the Further Invoices were payable to 40Seas. There is no evidence that the direct debit authority was ever re-established by Mearth. There is compelling evidence that it was not re-established because none of the respective amounts payable under each of the October Invoice and the Further Invoices has been paid.
For these reasons, there is no basis for the argument by Mearth that the whole of the amount contained in the statutory demand was not due and payable. As a result, the statutory demand should not be set aside on the grounds contained in either s 459J(1)(a) or (b) of the Corporations Act as asserted by Mearth.

Issue 3: should the statutory demand be set aside because it demands payment in US dollars and fails to express a conversion rate and date?

Mearth submitted that the only invoice contained in the statutory demand which was due and payable was the October Invoice (an argument which I have rejected), the component parts of which were expressed in a combination of currencies (USD, RMB and AUD) and which then formed part of the larger amount sought in the statutory demand expressed in US dollars. Mearth says that the 100000RMB amount has been converted to some unspecified currency in an unspecified manner, with a "40seas fee" added to it, the reasons and basis for which is unclear. Mearth submitted that it has not been put in a position by the statutory demand to know how, why and on what basis this was done.
Mearth further submits that the payment sought in the October Invoice is A$194,521.93, which is the same amount expressed as the Buyer's Total Charge of A$194,521.93 in Exhibit A to the Agreement and in Exhibit A to the Assignment. Mearth says there is no reference to an amount expressed in US dollars as due and payable in the Agreement, the Assignment or the October Invoice, yet the amount in the statutory demand is only expressed in US dollars, and there is no reference to any conversion rate of Australian dollars to US dollars or the date on which that conversion was made.
Mearth says that applying the reasoning in Vehicle Wash, a statutory demand expressed in US dollars is defective under s 459J(1)(a) and, applying the reasoning in Daewoo Australia and JTEC, there is no defect where the demand relates to a contract under which the company has promised to meet a financial obligation in the foreign currency. Mearth explains that because Exhibit A to the Agreement and Exhibit A to the Assignment both express an amount as owing in Australian dollars, there was no obligation for Mearth to meet a financial obligation in US dollars.
40Seas says that the decision in JTEC is plainly distinguishable because, in JTEC, the issue the court was faced with was that the demand referred to an amount in Irish pounds that was no longer legal tender and the company receiving a demand in an amount no longer in legal tender had to go through and find certain information to establish that the Republic of Ireland was a member of the European Union, information about various regulations in EU common currency and then make enquiries to ascertain the relevance of the references to the Euro. 40Seas emphasised that, in applying the test from Aldridge Electrical, if the date selected for the currency conversion is appropriate or inappropriate it would only be a defect and it is still necessary to consider whether substantial injustice will be caused.
40Seas submit that there is no evidence of any substantial injustice to Mearth caused by the statutory demand being expressed in US dollars. 40Seas says it is clear in the Wechat text messages on 4 and 5 February 2024 that Mr Ye knew that the October Invoice was payable in US dollars and the exact amount of those US dollars. 40Seas also says that, in Mr Ye's affidavits, he has been able to readily identify each invoice which he has expressed as payable in US dollars, including the October Invoice, as well as in the substantive documentation in the form of the Agreement. 40Seas also points to the admissions in Mr Ye's second affidavit stating that the US$127,138.52 in the October Invoice was due at the date of the statutory demand. 40Seas also contends that, in Mr Ye's third affidavit, he says that Mearth needs around 28 to 45 days to pay the October Invoice, and nowhere is it suggested that there could be any form of confusion causing substantial injustice to Mearth because of the foreign currency issue.
40Seas says that there is no defect for the purpose of 459J(1)(a) in stipulating that an amount in a statutory demand can be in a foreign currency, and there is no substantial injustice for the purposes of 459J(1)(a) because it is abundantly clear that Mearth at all times knew and accepted that the amount of US$127,138.52 was and remains due and payable to 40Seas.
In my view, expressing the statutory demand as an amount owing in US dollars was not a defect with respect to each of the Further Invoices which contained amounts payable in US dollars. For each of those Further Invoices there was, to use the words in Daewoo Australia, no defect where the demand relates to a contract under which Mearth had promised to meet a financial obligation in the foreign currency (US dollars) as contained in cl 2(d)(iii) of each of the respective Further Agreements which were in the same form as the Agreement. The "Buyer's Total Charge" in Exhibit A to each of the Further Agreements was expressed in US dollars in exactly the same amount as the relevant accompanying Further Invoice.
As for the October Invoice, it contains a conversion rate of USD to AUD of 1.53. That is the third of the alternative dates for conversion (being the date for the scheduled payment which had not been made) expressed in Aldridge Electrical as an appropriate date. There is not defect in the statutory demand in those circumstances.
In any event, even if I had found that the expression of the amount in the statutory demand in US dollars was a defect, there is no substantial injustice caused to Mearth. The evidence is unsurmountable that Mearth knew that each of the October Invoice and the Further Invoices was payable in US dollars. Mr Ye says so in his first affidavit, listing the "amount due" for every invoice in US dollars, including the October Invoice for the exact amount as sought in the statutory demand by 40Seas. The Wechat text messages on 4 and 5 February 2024 repeatedly refer to the October Invoice as payable in US dollars and for the exact amount as sought in the statutory demand by 40Seas. Mr Ye's second affidavit says that the October Invoice is payable in US dollars. Mr Ye's third affidavit says that Mearth needs time to pay the October Invoice, raising no issue about any problem of currency conversion. There is nothing to suggest otherwise.
For these reasons, the expression of the amount owing as US dollars in the statutory demand is not a ground for setting it aside under s 459J(1)(a) of the Corporations Act.

ORDERS

For the reasons set out above, I propose to make the following orders: 1. The amended originating process filed 1 March 2024 is dismissed. 2. The plaintiff is to pay the costs of the defendant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2024

Corporations Act 2001(Cth)ss 459E, 459G, 459H, 459J

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