Hoser v Pelley, in the matter of Hoser [2026] FedCFamC2G 322

1. Mr Raymond Hoser has applied to set aside a bankruptcy notice dated 29 August 2024 issued on the application of Mr Mark Pelley. Mr Pelley is a judgment creditor of Mr Hoser. Mr Pelley obtained a final order against Mr Hoser in the Victorian Court of Appeal (VSCA) for the sum of $171,000 in Hoser v Pelley [No 4] [2023] VSCA 319 (14 December 2023). The bankruptcy notice was issued in respect of that judgment debt.
2. Mr Hoser says that the bankruptcy notice ought to be set aside under ss. 41(7) and 40(1)(g) of the Bankruptcy Act 1966 (Cth) (the Act) because he has a "counterclaim, set-off or cross demand equal to or exceeding the amount of the judgment debt". Section 41(7) of the Act operates to extend the time for compliance with the bankruptcy notice until and including the day on which the Court determines whether it is satisfied that the bankruptcy notice ought to be set aside because of the provisions of s. 40(1)(g).
3. There is no dispute that Mr Hoser has raised claims against Mr Pelley which meet the description of one or other of a "counterclaim, set-off or cross demand". Mr Hoser has a pending claim in this Court, listed for trial on 27-29 April 2026, in Hoser v Pelley & Ors (file number MLG3335/2024). Nothing turns on whether Mr Hoser's claims are characterised as a counterclaim, set off or as a cross demand. I have referred to Mr Hoser's claims as a cross demand in these reasons.
4. Mr Hoser's cross-demand is that Mr Pelley has infringed registered trade marks under s. 120 of the Trade Marks Act 1995 (Cth). Mr Hoser says that he is entitled to compensatory damages under s. 126(1)(b) and an "additional amount in an assessment of damages" under s. 126(2) of the Trade Marks Act. Further, or alternatively Mr Hoser alleges that Mr Pelley, by the same actions, has engaged in misleading or deceptive conduct under s. 18 of the Australian Consumer Law (ACL) (Sch 2. to the Competition and Consumer Act 2010 (Cth)) and he is entitled to damages under s. 236 of the ACL. Mr Hoser accepts that there is a commonality of facts in his trade mark infringement and ACL claims.
5. Mr Hoser has not satisfied me that he has an arguable case that he has a cross demand that is equal to or exceeds the amount of the judgment debt. I am not so satisfied for two reasons. First, as to liability, on the existing material, I assess Mr Hoser's liability claim for trade mark infringement and misleading or deceptive conduct to be weak. Second, even if my assessment as to liability is wrong, and Mr Hoser proves Mr Pelley is liable as to trade mark infringement and/or as to misleading or deceptive conduct, as to quantum Mr Hoser has not put sufficient material before the Court to satisfy me that he has a case he ought fairly to be able to litigate that any compensatory and additional damages will be equal to or exceed the amount of the judgment debt such that the bankruptcy proceeding ought to await the outcome of his claim in the pending proceeding where he pursues his cross demand.
6. The issue for decision, and I have expanded on this below, is whether Mr Hoser is fairly entitled to litigate his cross demand. He will be fairly entitled to litigate his cross demand if he has a fair chance of success as to a cross demand equal to or exceeding the amount of the judgment debt. Questions of liability and quantum are interrelated in any assessment of whether Mr Hoser is fairly to be entitled to litigate his cross demand. That is, if a debtor has a strong liability claim but on a realistic assessment, he will receive damages much less than the judgment debt, the justice of the case will not require the bankruptcy proceeding to await the outcome of the cross demand. On the other hand, if the debtor has a weak liability claim but, if successful, may receive damages which are equal to or exceed the judgment debt, the justice of the case may require the bankruptcy proceeding to await the outcome of the proceeding in which the cross demand is made.
7. I will dismiss Mr Hoser's application. My reasons follow.

1. Elliott AJA summarised the history of the "bitter relationship" between Mr Hoser and Mr Pelley in the substantive appeal judgment Hoser v Pelley [No 3] [2023] VSCA 257 (1 November 2023). The damages judgment which fixed the judgment debt in the sum of $171,000 is Hoser v Pelley [No 4].
2. In Hoser v Pelley [No 3] Elliott AJA noted that Mr Hoser has many years of experience in handling and catching snakes.
3. In 2012, Mr Pelley participated in a venomous snake handling course Mr Hoser conducted. After this, Mr Hoser and Mr Pelley became good friends. The friendship did not last, and they became business competitors and then opposing litigants. Elliott AJA continued (Hoser v Pelley [No 3], [9]-[12]):
   1. Pelley eventually set up his own snake catching and handling business. Hoser initially took no exception ...
   2. Just as Hoser had done for years, Pelley advertised his business on a range of platforms, including on social media. In response to Pelley's advertising, Hoser requested that Pelley refrain from using a number of terms the subject of his trade marks. These included 'snake busters,' 'snakebusters' and variations of these terms, together with 'snake man' and 'the snake man' ... However, the harmonious coexistence of the two businesses was short-lived.
   3. From around early 2017, there was a complete breakdown in what became a bitter relationship for reasons unnecessary to explore. Hoser and Pelley actively competed against each other for business. By this time, both their respective businesses involved handling, catching and displaying snakes, including at reptile shows and parties. They also trained dogs to avoid venomous snakes.
   4. Pelley continued to advertise. Hoser complained to Pelley about his use of the terms 'snake catcher' and 'snake handler' on Facebook. After initially acceding to Hoser's requests, Pelley obtained legal advice to the effect that he was not breaching any of Hoser's trade mark rights by using these terms. His evidence was that the advice referred to generic terms and the difference between logos and words. Based on this advice, he formed the view that he could continue to use these terms, which he did. Pelley persisted on the basis that such terms were merely descriptive. He also considered he was entitled to use 'canine snake avoidance' as a descriptive term concerning training dogs to avoid snakes. He applied to register his own trade marks and continued to advertise using terms such as 'snake hunter', 'snake removal', 'snake catcher', 'the snake catcher', 'reptile parties', 'snake avoidance', 'canine snake avoidance' and 'snake handler'.

1. The County Court of Victoria (CCV) had found that Mr Hoser had made a series of defamatory publications against Mr Pelley. In Hoser v Pelley [No 3] Elliott AJA was writing in the VSCA as to Mr Hoser's appeal as to the CCV judgment. On appeal, although there was a modest reduction in damages, the underlying finding in the CCV that Mr Hoser had defamed Mr Pelley was not disturbed.
2. On 29 August 2024, on Mr Pelley's application, a bankruptcy notice was issued to Mr Hoser based on the judgment debt in Hoser v Pelley [No 4], and it is that bankruptcy notice Mr Hoser now seeks to set aside.
3. On 30 September 2024 in this Court, shortly after the issue of the bankruptcy notice, Mr Hoser commenced a separate proceeding which contains his cross demand as to alleged trade mark infringements and under the ACL. Mr Hoser seeks damages in the sum of $7,000,000 as to trade mark infringements or under the ACL; compensatory damages in the sum of $6,000,000 and additional aggravated damages in the sum of $1,000,000.
4. Mr Pelley (unsuccessfully) applied to stay Mr Hoser's trade mark infringement and ACL proceeding in MLG3335/2024 as an abuse of process because, among other matters, one of the defences Mr Hoser pursued in the CCV and on appeal in the VSCA was that Mr Hoser could not damage Mr Pelley's reputation by defamatory remarks because Mr Pelley was a serial trade mark infringer as to Mr Hoser's registered trade marks. When Mr Hoser commenced the trade mark infringement and ACL proceeding in this Court, Mr Pelley argued that he was being vexed twice in the same cause and that was an abuse of process.
5. In a judgment I published on 3 July 2025 in Hoser v Pelley [2025] FedCFamC2G 1008 (Abuse of Process Judgment), I refused to dismiss Mr Hoser's cross demand as an abuse of process for reasons including that it was not open to Mr Hoser to bring his trade mark infringement action in the CCV. Under s. 125(1) of the Trade Marks Act "an action for infringement of registered trade mark may be brought in a prescribed court" and prescribed courts are identified in s. 190. The CCV is not a prescribed court under s. 190 of the Trade Marks Act and this was one issue (among others) which underpinned my conclusion that Mr Hoser's cross demand was not an abuse of process.
6. I noted, however, the "closeness of the subject matter" as to the trade mark issues Elliott AJA had analysed in Hoser v Pelley [No 3] and Mr Hoser's cross demand as to trade mark issues in MLG3335/2024.
7. I also noted that, as far as it was necessary for Elliott AJA to determine trade mark issues, Mr Hoser had not proved that Mr Pelley had used any mark as a trade mark. Elliott AJA held that Mr Pelley had used words Mr Hoser had registered as a trade mark descriptively to describe the services his business was providing, namely training dogs to avoid snakes. He had not used words registered as a trade mark to denote a badge of origin for the relevant goods and services.
8. As a result, I said in the Abuse of Process Judgment that on the material before me "Mr Hoser's claim in this court confronts significant challenges" and "at this stage, Mr Hoser has not put anything before me which would suggest that Elliott AJA's legal analysis is incorrect" (Abuse of Process Judgment, [88]).
9. On 5 October 2024, in this Court's bankruptcy jurisdiction, Mr Hoser applied to set aside the bankruptcy notice under ss. 40(1)(g) and 41(7) of the Act based on his cross demand in his trade mark infringement and misleading or deceptive conduct claim, the cross demand he had commenced days earlier on 30 September 2024.
10. On 20 January 2025, a Registrar of this Court dismissed Mr Hoser's Application to set aside the bankruptcy notice.
11. On 5 February 2025, Mr Hoser lodged an application for review of the Registrar's decision. The review before me of the Registrar's decision is a review de novo. That is, there is no need for Mr Hoser to prove any error in the exercise of the Registrar's power, and I assess his application afresh as to whether I am satisfied that he has a cross demand equal to or exceeding the amount of the judgment debt.
12. The documents since filed in the application are voluminous. I will refer to them only as necessary.

1. The relevant provisions of the Act are ss. 40(1)(g) and 41(7).

Section 41(7) - Mr Hoser's Application extends the time for compliance with the bankruptcy notice

1. Under s. 41(7) of the Act, there is no dispute that Mr Hoser applied to the Court to set aside the bankruptcy notice "before the time fixed for compliance" with the bankruptcy notice. As a result, the time for compliance with the bankruptcy notice is "extended ... until and including the day which the court determines whether it is so satisfied" that Mr Hoser has a counter-claim, set off or cross demand equal to or exceeding the amount of the judgment debt.

Section 40(1)(g) - A cross demand equal to or exceeding the amount of the judgment debt

1. Relevantly, under s. 40(1)(g) a debtor will commit an act of bankruptcy if he does not:

... satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;

...

1. Different courts have adopted different formulations as to what a debtor in the position of Mr Hoser must show.
2. In Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78; (1980) 30 ALR 433 at 438-9, Lockhart J said that although the debtor must show that he has a "prima facie" case, I am not required to "undertake a preliminary trial of the counterclaim, set-off or cross-demand" but I "must be satisfied that the debtor has a fair chance of success" as to his cross-demand.
3. In Glew v Harrowell [2003] FCA 373; (2003) 198 ALR 331 (at [9]) Lindgren J identified that the party seeking to satisfy the court to set aside the bankruptcy notice under s. 40(1)(g) had to satisfy the court of three "interrelated and sometimes overlapping matters" (Citations omitted):
   • that they have a 'prima facie case', even if they do not adduce evidence which would be admissible on a final hearing making out that case;
   • that they have 'a fair chance of success' or are 'fairly entitled to litigate' the claim; and
   • that they are advancing a 'genuine' or 'bona fide' claim.
4. In Guss v Johnstone (2000) 171 ALR 598 at 606 a High Court majority explained the test in terms of the justice of the matter as follows (at [40]):

The state of satisfaction referred to in s 40(1)(g), and s 41(7), involves weighing up considerations as to the legal and factual merit of the claim relied upon by the debtor, and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim.

1. In CFB18 v Reader Lawyers & Mediators (2018) 16 ABC(NS) 26, Colvin J (having noted what Lindgren J said in Glew) (and noting that McKerracher J later approved Colvin J's observations in CFB18 in Wilson v Arwon Finance Pty Ltd [2021] FCA 1052, [31]) said (at [34]):

[The different formulations as to what a debtor must show] include, the existence of a 'prima facie case', 'a fair chance of success' or the party is 'fairly entitled to litigate' the claim and that the party is advancing a 'genuine' or 'bona fide' claim. However, it is not simply a matter of evaluating whether there is a claim with the requisite strength. Rather, the question is whether the claim is of a kind that, in all the circumstances (including the Court's view of the strength of the offsetting claim), it is just to allow the party to pursue rather than face bankruptcy. One aspect of the claim to consider is its strength. A weak claim will not suffice. Otherwise, an assessment of strength is to be considered in the context of other considerations that bear upon the justice of allowing the bankruptcy proceedings to continue without the claim first being determined.

APPLICATION OF RELEVANT LEGAL PRINCIPLES TO THE CURRENT CASE

1. In assessing whether the bankruptcy proceedings ought to be allowed to go ahead or ought to await the outcome of Mr Hoser's cross demand in the trade mark infringement and ACL claim, I have had particular regard to Mr Hoser's Statement of Claim filed in MLG3335/2024 (SOC) (Ex A44).
2. An assessment of the strength of the cross demand is made more difficult by the fact that the SOC is prolix. The paragraph numbering is not sequential. The SOC runs to approximately 400 paragraphs and 30 pages. Appendices comprise an additional 120 pages.
3. I first note that in MLG3335/2024, Mr Hoser had advanced a defamation claim, a claim which I dismissed because this Court did not have jurisdiction as to it (Abuse of Process Judgment, [23] -[35]). Mr Hoser cannot rely on his dismissed defamation claim to satisfy me that he has a cross-demand that is equal to or exceeds the amount of the judgment debt.
4. In his SOC, Mr Hoser identifies that he had approximately 20 registered trade marks in his name (SOC, [16]-[39]). Some registered trade marks were solely word marks, and some trade marks were figurative trade marks: words and logos. Illustratively, the registered trade marks included: "snakeman," "snake buster," and "Hands on Reptiles" connected to Mr Hoser's snake handling and snake catching business.
5. Mr Hoser pleaded that on 1 October 2021 he transferred his registered trade marks to his daughter, Ms Adelyn Hoser (SOC, [15]). His claims against Mr Pelley traversed the period May 2018 until 29 September 2024.
6. The "[f]irst matter complained of" was the defamation claim dismissed because of lack of jurisdiction and can be put to one side. Mr Hoser's SOC otherwise traverses 11 complaints framed sequentially as the "[s]econd [m]atter [c]omplained of" through until the "[t]welfth [m]atter [c]omplained of". Claims 2-11 concern allegations of alleged infringement of trade marks. Claim 12 is the ACL claim. As noted, Mr Hoser's Prayer for Relief is a claim for damages in the sum of $7,000,000 - $6,000,000 in compensatory damages and $1,000,000 in aggravated damages - as to trade mark infringement or breach of the ACL.

The "Snake Avoidance" trade mark and the "[s]ixth matter [c]omplained of"

1. Claim 6 in which Mr Hoser alleges Mr Pelley infringed his "snake avoidance" trade mark is a useful way in which to identify the core of Mr Hoser's trade mark infringement allegations which, is the core of his cross demand.
2. I have focused on claim 6, because each of claims 2-5 and claim 7 also contain allegations that Mr Pelley infringed Mr Hoser's registered trade mark by use of the same words, namely "snake avoidance". That is, there is nothing on the material before me to differentiate the merit of claims 2-5 and 7 from claim 6.
3. Claims 8 and 9 can be put to one side as the allegations are made at parties other than Mr Pelley and in any event, no material as to damages arising from alleged infringements in claims 8 and 9 was put before me.
4. Claim 10 again concerns Mr Pelley's creation and management of a Google business page for "Canine Snake Avoidance" and is therefore focused on an alleged infringement of the "snake avoidance" trade mark. The analysis below as to claim 6 also applies equally to claim 10.
5. Claim 11 focuses on Mr Pelley's use of Search Engine Optimisation methods. Mr Hoser alleges that Mr Pelley created a Google advertisement for his business which were "trigger[ed]" by the trade marked terms and, as a result, claim 11 is also closely related to claim 6.
6. As to claim 12, Mr Hoser makes an alternative claim under the ACL. Mr Hoser acknowledged during argument before me that there was a "commonality of facts' between his ACL claim and his trade mark infringement claims (T97:L18-20, 22):

HIS HONOUR: But do you - in your submission, you don't say to me, well, no, the trademark infringement is for this, this and this, and the misleading and deceptive conduct damages is for something distinct.

MR HOSER: No, the same facts asserted; the commonality of facts.

1. I turn then to the detail of claim 6.
2. One of the registered trade marks Mr Hoser identifies in his SOC is as follows (SOC, [34]):

Snake Avoidance, Logo, TM No. 1869367 registered from 29 August 2017,

1. Mr Hoser adduced evidence before me of a registered figurative trade mark as it appears on the trade mark register as follows (Ex A26, PDF 13):

1. Mr Hoser's pleaded his claim as to the "[s]ixth matter [c]omplained of" in the SOC is as follows (Ex A44, [233]-[235]):

233. SIXTH MATTER COMPLAINED OF

1. In May 2018, [Mr Pelley] created a Google Business page, still active as of 28 September 2024 called 'Canine Snake Avoidance', ... which has infringed the applicant's registered trademark 'snake avoidance' in breach of S120 of the Trade Marks Act 1995.

137. PARTICULARS

234. The nature of the listing is self-explanatory and copied in Appendix 6.

235. It uses 'Canine Snake Avoidance' as a trade mark and not descriptively.

(As per original)

1. Appendix 6 to the SOC (Ex A30, also Ex A22) - the "self-explanatory" listing - is a Google search page which showed the results yielded on a search of the words "snake avoidance" conducted in March 2021. On conducting a search of the words "snake avoidance," the first listed result generated by a search of those words appeared to be "Canine Snake Avoidance" with a photograph of Mr Pelley and a dog (Ex A22). I have reproduced the search result below.

1. By claim 6, Mr Hoser alleges that Mr Pelley's use of the word "Canine Snake Avoidance" in the creation of his Google business page infringed Mr Hoser's registered figurative trade mark under s. 120 of the Trade Marks Act.

1. Under s. 120 of the Trade Marks Act, trade mark infringement requires the use of the impugned mark as a trade mark. Trade mark use is often described as use of the mark as a "badge of origin" to indicate the trade origin of the goods and services. In contrast, there is no trade mark use, and therefore no infringement of the registered mark, where the use is for a purpose other than to indicate the badge of origin for the goods and services such as when the words of the mark are used for a descriptive purpose. Where a mark is used in a wholly descriptive sense there is no trade mark use (LexisNexis Australia, Halsbury's Laws of Australia, (online at 4 March 2026) 240 Intellectual Property, 'VIII Trade Marks' [240-8335]).
2. Illustratively, in Pepsico Australia Pty Ltd (t/a Frito-Lay Australia) v Kettle Chip Co Pty Ltd (1996) 135 ALR 192 the Full Court of the Federal Court (Sackville J with whom Lockhart J agreed) held that the use of the words "Kettle cooked" in relation to potato chips did not infringe the registered mark "Kettle" because the words were descriptive of the process used to make the potato chips and of the end product and were not used as a "badge of origin" of the potato chips (at 215-16).
3. In this case, on the material before me, it appears that Mr Pelley has used the words "canine snake avoidance" not to indicate the badge of origin of the services but simply to describe the services his business provides, which I hope not unduly simplistically can be described as teaching dogs to avoid snakes so as to keep the dogs safe.
4. It was this analysis - namely, that Mr Pelley was only using the words descriptively and not as a trade mark - that commended itself to Elliott AJA in Hoser v Pelley [No 3]. Elliott AJA had said at [122] "... if descriptive words are legitimately registered as a trade mark, there is no proper basis to prevent others from using those words in a descriptive sense ...". Elliott AJA's reasons specifically addressed the particular trade mark "snake avoidance" (TM 1869367) I have identified above. His Honour said at [184]:

Importantly, Hoser's trade mark itself indicated that it was concerned with dogs. The image of a dog immediately adjacent to the words 'snake avoidance' plainly created this unequivocal nexus.

(Footnote omitted)

1. As to the detail of Mr Pelley's use of those words, Elliott AJA continued (at [185]) that he saw no error in the trial judge's finding that:

... Pelley's use of 'canine snake avoidance' in a descriptive manner did not infringe Hoser's trade mark 'snake avoidance' ... [and] ... his Honour was correct in this conclusion.

(Emphasis added)

1. Consistently with what I wrote in the Abuse of Process Judgment, Mr Hoser has not put any material before me in his Application to set aside the bankruptcy notice to persuade me that Elliott AJA's analysis of the relevant principles is incorrect.
2. Equally, as to the ACL claim, it is well established that if "a name is no more than merely descriptive of a particular type of business, it does not deceive or mislead as to the nature of the business described" (Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216, 231).
3. Noting I am making an assessment of whether Mr Hoser has a prima facie case as to a cross demand equal to or exceeding the amount of the judgment debt (Glew, above), Mr Hoser has not put before me persuasive material that Mr Pelley's use of words "canine snake avoidance" are words which do any more than describe the particular nature of his business - dogs avoiding snakes - or that he has used those descriptive words as a trade mark to infringe any registered trade mark. The words used describe the nature of the services Mr Pelley's business provides and are not used to indicate a badge of origin of the services.
4. Further, Mr Hoser registered a figurative trade mark, with an image of a dog. There is no evidence that Mr Pelley used the image of the dog which would support Mr Hoser's claim that Mr Pelley has infringed the registered mark. The fact that Mr Pelley has not used the logo creates an additional challenge to Mr Hoser proving his cross demand that there has been an infringement of his registered figurative mark.
5. Mr Hoser submitted that the words "dog trainer in Victoria" (the subheading as it appears on the Google business page in Ex A22) (see above) were the descriptive words and the words "canine snake avoidance" were used to denote a badge of origin. I do not accept that submission. On the material before me, both sets of words - "Dog trainer in Victoria" and "canine snake avoidance" - are used only descriptively and not to denote a badge of origin.
6. At least on the material presently before me, Mr Pelley has not used the words "canine snake avoidance" as a trade mark to infringe s. 120 of the Trade Marks Act or, at least, Mr Hoser does not have an arguable case that he has done so such that the bankruptcy proceeding should await the outcome of his cross demand.
7. As I have noted, the challenges which Mr Hoser confronts to prove infringement of a trade mark as to claim 6 extend to claims 2-5, 7 and 10-12 because they are all claims based on the same foundation.
8. On that basis, as to liability, although it is not for me to undertake a preliminary trial at this point, I adhere to what I said in the Abuse of Process Judgment, namely that Mr Hoser's claim on liability "confronts significant challenges".
9. In CFB18, Colvin J framed the question as whether it was "just to allow the party to pursue [the case] rather than face bankruptcy". One aspect of [my task is] to consider [the] strength [of the cross demand]. A weak claim will not suffice" (at [34]). Before turning to the quantum of Mr Hoser's cross demand, I presently characterise Mr Hoser's trade mark infringement claim and ACL claim as to liability as a "weak claim" and therefore a claim which "will not suffice" to set aside the bankruptcy notice.

1. As to "orders sought" in his SOC, Mr Hoser pleaded his claim for damages in a "rolled up" way: that is, he has claimed a global sum for damages caused by the totality of the infringements (Claims 2-12). He has not particularised damages alleged to result from individual infringements. He structured his Prayer for Relief as follows (Ex A44, [4], [7]):
   1. Damages of $6.5 million for the first ... respondent [Mr Pelley] .... being $6 million for the registered trademarks infringement and/or misleading and deceptive conduct and $500K for the defamation.

...

1. A further order that the first respondent pay a further $1 million punitive / aggravated damages for trademarks infringement noting he had been aware of the applicant's excusive ownership of the registered trademarks at all materially relevant times and made the applicant's life hell, by various means, for several years to give him cover to engage in non-stop infringement and destruction of the applicant's lawful business.

1. An applicant "whose mark has been infringed can choose between damages or an account of profits" (Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50; (1968) 122 CLR 25, 32). Mr Hoser in his submissions said that he had made a choice - even though he would not ordinarily be required to make such a choice at this early stage - that his "claims are in the form of compensatory [damages] and not for an account of profits from [Mr] Pelley" (Emphasis added) (Ex A45).
2. To establish whether the justice of the situation requires that the bankruptcy proceedings ought to await the determination of the trade mark infringement and misleading or deceptive conduct claim, in addition to liability issues, the quantification of Mr Hoser's damages cross demand is important. Mr Hoser - as a debtor asserting a cross demand for unliquidated damages - must satisfy the Court that "prima facie" he has a reasonable prospect of securing damages or a damages case which he is fairly entitled to litigate but that his claim is in "an amount ... equal to or exceeding the amount claimed in the bankruptcy notice" (Emphasis added) (Melbourne v Relativity Pty Ltd [1999] FCA 160, [34]).

1. In his affidavit made on 31 October 2025 in MLG3335/2024 (Ex A15), Mr Hoser deposed as follows as to his damages the subject of his cross demand:

61. CALCULATION OF DAMAGES - TRADEMARKS

1. Damages for the trademarks usage are higher than the $6 million claimed against PELLEY.

63. By way of example, they are calculated as follows:

1. Start with JC Decaux, in the matter of Hoser V Stelios Eleftheriou and JC Decaux.

2. Theirs was a single trivial use of the snake man trademark on a digital sign for a time frame measured in seconds on a street corner as a one off got a $12K payout in 2024.

3. Pelley's multiple times a day usage (Google Adwords tool claims 2K per month infringement per trademark and he has used several trademarks non-stop, including "Reptile party", "reptile parties", "snake man", "Snakeman", "Snakebusters", "Snake avoidance", etc).

4. Assuming one day at $12K, this equals $4.38 million per year, making the claims against PELLEY at $1 million a year being very, very conservative.

5. You can multiply things three times the above as well if one uses the Bunnings payout figure of $35K from 2017 for single use of the "Snake Man" registered trademark.

6. Or go higher if one values each single usage (as in Adwords impression or similar), which at 6 X 2K X 35K X 12 (being 6 trademarks X 2K use per month X 35K being the Bunnings pay out in 2017 X 12 months of the year) giving over $5 billion damages per year!

(Emphasis in original)

1. Mr Hoser also relied on an affidavit of Mr Daniel Mannix, a full-time professional dog trainer. Mr Mannix deposed that he had been working with Mr Hoser "teaching dogs to run away from snakes in one form or another for the past decade" (Ex A16, [4]).
2. As evidence relevant to the quantification of damages, Mr Mannix annexed an invoice of "Reptile Party Pty Ltd", a company associated with Mr Hoser, for work over an 8-month period from July 2024 until late February 2025 in the sum of $73,716 (plus GST) (Ex A16, Annexure 2).

1. Mr Hoser provided no sufficient material as to damages he has (personally) suffered as owner of the registered trade marks, such that the bankruptcy claim ought to await the outcome of the cross demand, for the following seven reasons.
2. First, Mr Hoser's bare assertion in his SOC that he seeks an order for the sum of $7,000,000 in damages for trade mark infringement and aggravated damages is of itself insufficient in the absence of particulars as to how that sum is calculated.
3. Second, as to the income of Reptile Party Pty Ltd of $73,716, there was no evidence as to what profit was earned out of that income. Damages must measure lost profit not lost income.
4. Third, Reptile Party Pty Ltd as a company, axiomatically, has a separate legal identity from Mr Hoser (Salomon v Salomon & Co Ltd [1896] UKHL 1; [1897] AC 22). Any lost profit accruing to Reptile Party Pty Ltd is not synonymous with Mr Hoser's damages. Mr Hoser did not explain in any way the relationship between any lost profit that Reptile Party Pty Ltd may suffer and his own personal damages as the trade mark owner.
5. Fourth, on 1 October 2021, Mr Hoser transferred to his daughter, Ms Adelyn Hoser, ownership of his registered trade marks (Ex A44, [13]). That is, during about one half of the period in which Mr Hoser alleges Mr Pelley has been infringing his trade marks, his daughter, Ms Adelyn Hoser, not him, has been the registered owner of the trade marks. Mr Hoser and Ms Adelyn Hoser executed a licensing agreement, licensing Mr Hoser to use of all registered trade marks for the period 1 October 2021 to 1 December 2025 (Ex A24). Nonetheless, since 1 October 2021, Ms Adelyn Hoser, not Mr Hoser, has been the registered owner of the trade marks and prima facie Ms Adelyn Hoser is the person entitled to be granted damages in respect of any trade mark infringement. Mr Hoser asserted but did not explain how, or why, all damages for trade mark infringement would be payable to him not his daughter, after 1 October 2021. At one point, Mr Hoser asserted I could proceed on the basis that he and Ms Adelyn Hoser could share damages 50/50, but he did not explain why that was the case other than to note that he transferred ownership of the trade marks to her about half way through the relevant period.
6. Fifth, the methodology Mr Hoser identifies in his affidavit whereby he seeks to extrapolate sums he received from other parties by way of compromise in unrelated litigation as to how damages may be calculated in this case is unsatisfactory. It is a truism that cases are compromised for many reasons. The identification of a sum another (unrelated) party paid to compromise (unrelated) litigation where different acts were alleged and as to which no detail is provided, does not provide a satisfactory mode of quantifying the damages Mr Hoser might reasonably expect to achieve in MLG3335/2024, if successful.
7. Sixth, Mr Hoser produced no financial statements, or profit and loss statements as to the financial impact upon him of Mr Pelley's alleged infringement of his trade marks or misleading or deceptive conduct. I have no accounting evidence as to the alleged financial impact on him of the alleged infringement of his trade marks. Mr Hoser has produced no financial statements, profit and loss statements or tax returns of Reptile Party Pty Ltd which he says is the company that operates his snake catching or snake handling business.
8. Seventh, Mr Hoser deposed that his income has in any event remained "roughly stable" during the period in which he alleges Mr Pelley has been engaged in systematic infringement of his trade marks. That Mr Hoser's income has remained (on his own account) "roughly stable" was difficult to reconcile with his central allegation that Mr Pelley has been engaged in a protracted siphoning away of his business by systematic conduct infringing his registered trade marks. Mr Hoser deposed (Ex A15, [71]):

I note we earned a total of $180,195K in the last year from Snake Avoidance to the exclusion of all other income sources and this has been roughly stable for the last 6 years (the period of this claim), then this translates as roughly $180K X 6 = $1,080,000 for the "Snake Avoidance" trademark in that period and in the face of Pelley siphoning off more than that.

(Emphasis added)

1. Mr Hoser made the following submission that before the period in which he alleges that Mr Pelley has engaged in conduct which has systematically infringed his trade marks (T41:L37-40):

MR HOSER: ... your Honour, the state of ..... business was growing virtually exponential with insatiable demand year-on-year. It grew from next to - it grew from zero to about 80,000 a year, or thereabouts, up till 2017 or 2018, I think. No, 2017. 2018 is when Mr Pelley started gaming the internet and, basically, scraping off all the new business.

(Emphasis added)

1. On this analysis, Mr Hoser asked me to accept - by way only of submission without supporting evidence - that his loss to be proved in his cross demand was equal to the lost "exponential" growth in the business which, so he argues, would have continued to be exponential. That is, Mr Hoser asked me to proceed on the basis that if Mr Pelley had not engaged in ongoing trade mark infringement, his business would have continued to have exponential growth. Mr Hoser's submission had the quality of a bare assertion. There was no evidence to back up the assertion of the exponential growth in his business before 2017 or 2018.
2. Even if Mr Hoser overcomes what I have termed the significant challenges in proving liability as to the trade mark infringement and ACL cross demand, there is no material at all which leads me to be satisfied that - as to remedy - Mr Hoser has a claim he is fairly entitled to litigate as to damages which are equal to or exceed the amount of the judgment debt.
3. Because of the seven factors above as to remedy, Mr Hoser put before me no material to suggest, if successful, he will be granted damages equal to or exceeding the sum of $171,000 Mr Hoser has not satisfied me under ss. 40(1)(g) or 41(7) of the Act that he has a cross demand equal to or exceeding the amount of the judgment debt that he ought fairly to be able to litigate.

1. In Guss at [40] the High Court said that the state of satisfaction referred to in s. 40(1)(g) of the Act involves weighing the legal and factual merit of the claim and the justice of either allowing the bankruptcy proceedings to go ahead or requiring the bankruptcy proceedings to await the determination of the other claim.
2. I have considered Mr Hoser's overall claim both as to liability and quantum.
3. In all of the circumstances, as to the justice of the case, there is no reason to require the bankruptcy proceedings to await the outcome of Mr Hoser's claim in MLG3335/2024.
4. I will dismiss Mr Hoser's Application.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.