Plaintiff v Defendant

[2025] VSC 409

CORPORATIONS - Application to set aside a statutory demand - Where debt identified in demand is the subject of the proceeding brought by the defendant in the Victorian County Court - Whether the statutory demand should be set aside for some other reason pursuant to s 459J(1)(b) of the Corporations Act 2001 (Cth) - Whether there is an abuse of process - Re Zarzar Pty Ltd [2017] NSWSC 93, Re Modern Wholesale Jewellery Pty Ltd [2017] NSWSC 236 and Re 47 Industrial Pty Ltd [2024] NSWSC 1166 referred to - Finding that there is no abuse of process.

The Defendants submitted that "there is a recognisable value in having both a summary procedure and a substantive procedure for dealing with the same issue", and that if the Court declined to set aside the Statutory Demand, "it's unlikely ... that the Queensland proceeding would go through to finality". It may be accepted that there is value in a creditor being able to issue a statutory demand in respect of a debt or to commence proceedings for recovery of the debt. However, the issue is whether the creditor should be permitted to issue or maintain a statutory demand in circumstances where a recovery proceeding has been commenced in respect of the same debt. It is necessary to weigh, against any private interest which the creditor might have in asserting the alleged indebtedness in parallel proceedings, the public interest in the timely and efficient resolution of claims within the integrated Australian legal system of which this Court and the Supreme Court of Queensland each form part (see UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [75] per Gageler J).[6]

(2018) 265 CLR 77

(1990) 1 WAR 465