Plaintiff v Defendant

1. On or around 30 August 2024, Doughnut Truck Pty Ltd ('defendant' or 'Doughnut Truck') served a statutory demand on Walker's Doughnuts Bendigo Pty Ltd ('plaintiff' or 'Walker's Doughnuts') claiming debts in the amount of $256,620 ('demand' or 'statutory demand'). The debts comprised alleged unpaid unitholder entitlements of $109,876 and outstanding loan monies in the sum of $146,744.
2. On 23 September 2024, the plaintiff filed its application by way of originating process to set aside the statutory demand pursuant to ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) ('Act') ('set aside application'). The plaintiff did so on the bases of alleged genuine disputes about the amounts of the debts claimed by the defendant, whether such debts were due and payable, and an alleged abuse of process. The essence of the plaintiff's abuse of process contention was that the statutory demand was made in the context of an ongoing attempt to mediate a wider legal dispute between the parties in circumstances where the defendant is a shareholder in the plaintiff (as to 51 of the 120 shares in the company) and a unitholder of a trust in respect of which the plaintiff is trustee.
3. On 1 November 2024, the defendant commenced a separate proceeding in this Court against a number of defendants, including Walker's Doughnuts, pursuant to s 232 of the Act, alleging oppression in relation to the conduct of the affairs of Walker's Doughnuts ('oppression proceeding').[1] The oppression proceeding is currently at the pleading stage.
4. For reasons I will discuss, it is no longer necessary for the plaintiff's set aside application to be determined by the Court. The parties are in agreement that the matter should be brought to an end without a hearing on the merits but disagree as to the appropriate orders as to costs. The plaintiff seeks its costs from the defendant, whereas the defendant resists such an order and says there should be no order as to costs. To determine the question of costs, it is necessary to briefly set out the background to the proceeding and procedural history of the matter.

1. The plaintiff was incorporated on 4 March 2021. An Australian Securities and Investments Commission ('ASIC') extract records Mr Kevin Bugeja and Mr Dimitrios Stoupas as being the company's directors. The plaintiff acts in its capacity as trustee of the Walker's Doughnuts Bendigo Unit Trust ('Walker's Trust'). The plaintiff's business operates two stores as a franchisee of the national 'Walker's Doughnuts' franchise group, selling doughnuts and other food and beverages.
2. The defendant is a unitholder of Walker's Trust, which has two other unitholders, including a trust of which Mr Stoupas and his wife are beneficiaries. The defendant is trustee for the Bugeja Family Trust, which is controlled by Mr Bugeja. Mr Bugeja is also the director of the defendant.
3. In his affidavit in support of the originating process dated 22 September 2024 ('first Stoupas affidavit'), Mr Stoupas relevantly deposes that:

(a) each original unitholder contributed a loan in proportion to its equity stake and agreed that distributions be re-invested in the business for the time being;

(b) the defendant made its loan advances from around 10 March 2021 to 28 June 2022;

(c) following a breakdown in the business relationship between himself and Mr Bugeja, the parties engaged in the process of an orderly divestment of Mr Bugeja's interests from common ventures;

(d) on 23 November 2023, a valuation was conducted in relation to the units in Walker's Trust, which Mr Bugeja has objected to;

(e) on 12 August 2024, Mr Bugeja's solicitor wrote to Mr Stoupas' solicitor setting out various matters concerning their respective clients' joint business interests, including proposed fair market value for the interest held by the defendant in Walker's Trust and/or the plaintiff, and seeking payment of the amounts now claimed in the demand;

(f) the statutory demand was then issued on 30 August 2024;

(g) the amounts claimed in the statutory demand did not account for certain payments made to the defendant; and

(h) a negotiation process between the parties was on foot at the time the statutory demand was issued.

1. Mr Bugeja (for the defendant) swore an affidavit on 21 October 2024 ('Bugeja affidavit') relevantly stating that:

(a) the amounts claimed in the statutory demand did not account for certain payments made to the defendant, with the result that the debts claimed by the defendant were revised as follows:

(i) unpaid distributions of $90,937.77; and

(ii) outstanding loan monies of $130,095.68;

(b) there was a more complex and broader legal dispute between the parties (and two other related parties) in relation to alleged minority shareholder oppression, breach of contract, and misleading and deceptive conduct. Mr Bugeja said he had been preparing '[f]or some time now' to initiate separate litigation which would be commenced regardless of the outcome of the statutory demand; and

(c) the broader dispute is not the reason for the issuing of the statutory demand.

1. The matter was listed for first directions on 25 October 2024. The Court made orders by consent that the defendant be permitted to file and serve a summons and supporting affidavit objecting to the first Stoupas Affidavit on the basis that it contained reference to 'without prejudice' communications.
2. On 28 October 2024, the defendant filed its summons and supporting affidavit seeking certain orders in relation to the exclusion of evidence of 'without prejudice' communications in the first Stoupas affidavit. The parties then filed and served submissions in relation to the summons. On 6 December 2024, Gardiner AsJ made orders by consent dismissing the summons, directing the plaintiff to file and serve a replacement to the first Stoupas affidavit with certain sections redacted and reserving costs.
3. As previously noted, the defendant in this proceeding (Doughnut Truck) filed its oppression proceeding pursuant to ss 232 and 233 of the Act on 1 November 2024. In the originating process, it seeks, among other things, declarations that the affairs of the plaintiff had been conducted oppressively and orders: granting Mr Bugeja access to the books and records of the plaintiff; appointing an independent expert to value the shares in Walker's Doughnuts and the amounts to which Doughnut Truck and Mr Bugeja are entitled to be paid by the company; and that the named defendants purchase Doughnut Truck's shares in Walker's Doughnuts at the value determined by the independent expert. Importantly, the originating process also seeks an order pursuant to s 233 of the Act that Walker's Doughnuts pay to Doughnut Truck 'unpaid entitlements' (comprising unpaid unitholder entitlements and outstanding loan monies) in the sum of $221,033 (which accounts for certain payments already made).[2] In the alternative, the defendant also seeks an order that Walker's Doughnuts be wound up under s 233 following a full investigation into its accounts.
4. On 27 February 2025, I made orders listing the set aside application for final hearing on 6 May 2025 and setting a timetable for the filing of further evidence and submissions.
5. On 27 March 2025, the plaintiff filed a supplementary affidavit of Mr Stoupas ('second Stoupas affidavit'). Broadly, the affidavit sets out the plaintiff's position in relation to the question of whether the loans and entitlements claimed by the defendant were payable by the plaintiff. Mr Stoupas also refers to the commencement of the oppression proceeding whereby Doughnut Truck is seeking an order pursuant to s 233 of the Act that Walker's Doughnuts pay to it amounts to which the statutory demand relates.
6. On 10 April 2025, the defendant filed an affidavit of Mr Bugeja in response to the second Stoupas affidavit but did not address the question of whether there was a duplication of proceedings. The parties then filed their substantive submissions in late April 2025.
7. On 2 May 2025, the Court was notified by email from the parties that the statutory demand had been withdrawn. On 5 May 2025, the Court emailed the parties indicating that the hearing of the proceeding would be adjourned until 28 May 2025 and providing a timetable for the parties to file and serve any material on the question of costs, including written submissions. On 26 May 2025, the Court notified the parties that the question of costs would be determined on the papers.
8. The plaintiff relies upon its costs submissions dated 14 May 2025 and the affidavit of Ms Julia Smith sworn 14 May 2025, while the defendant relies upon its costs submissions dated 21 May 2025.

1. The Court has a wide discretion in relation to costs.[3] The discretion is absolute and unconfined, but must still be exercised judicially and upon facts connected with the litigation, not by reference to irrelevant or extraneous considerations.[4] Although not designed to control the exercise of the Court's discretion, there is a general rule that, in the absence of good reason to the contrary, a successful litigant should recover their costs (i.e. costs follow the event).[5] Where a company succeeds in setting aside a statutory demand, the Court will usually order that the company be awarded costs pursuant to the principle that costs should follow the event;[6] however, each case will turn upon its own facts.[7] The Court may also consider the reasonableness of the creditor issuing and not withdrawing the statutory demand, after being advised of the nature of any dispute and the basis of the application to set it aside.[8]

1. The following guiding principles have application in resolving the question of costs where a proceeding ends without a final hearing, including in the case of an application to set aside a statutory demand under s 459G of the Act:

(a) the rule that costs will follow the event does not apply in circumstances when there has been no hearing on the merits[9] and it is commonly appropriate for the court to make no order as to costs.[10] That is because the court is deprived of the factor that usually determines whether or how it will make a costs order, namely the success of one of the parties (being the 'event');[11]

(b) in such a situation, it will rarely, if ever, be appropriate for a Court considering the costs of the proceeding to determine for itself the case on the merits or to determine the outcome of a hypothetical trial;[12]

(c) the Court may, however, determine whether the applicant acted reasonably in commencing the proceeding and whether the respondent acted reasonably in defending it.[13] Regard may also be had to the conduct of a respondent prior to the commencement of the proceeding where such conduct may have precipitated the litigation.[14] In some cases, the Court may be in a position to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action;[15]

(d) where it appears that both parties have acted reasonably in commencing and defending the proceeding and their conduct has continued to be reasonable until the point at which the litigation settled or its further prosecution became futile, the proper exercise of the Court's cost discretion typically means no order as to costs will be made.[16] However, in rare cases, costs may be awarded where the Court is confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried;[17]

(e) in assessing the reasonableness of the parties' conduct, it is important to recognise the reality that a company faced with a statutory demand in relation to a debt, disputed in whole or in part, has no option but to commence an action under s 459G to set aside the statutory demand within 21 days in order to avoid the presumption of insolvency under s 459C(2)(a) and the operation of s 459S as a bar to later disputes about the debt in a future winding up application;[18] and

(f) there is a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other (often justifying an award of costs to the successful party) and where some supervening event or settlement removes or modifies the subject of the dispute so that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs (where there may be no clear reason to award costs in favour of either party).[19]

1. There is good authority for the proposition that it will likely be an abuse of process for a party to invoke the statutory demand procedure whilst at the same time suing for the relevant debt in a substantive proceeding.[20] That conclusion may be reinforced in circumstances where pleadings and evidence have been exchanged but there has been no admission of the relevant debt.[21] In Re Zarzar Pty Ltd ('Re Zarzar'),[22] as in the present case, the parties consented to an order setting aside the relevant statutory demand but remained in dispute about costs. After service of the demand and the commencement of an application by the plaintiff company to set it aside, the defendant had filed a defence in another proceeding between the parties in the New South Wales Local Court and claimed the debts the subject of its statutory demand by way of set-off. Barrett AJA held as follows:[23]

While there is no explicit rule precluding parallel resort by a creditor to both the statutory demand procedure and debt recovery proceedings, the reality is that it is an abuse of the statutory demand process to continue to press and rely on a demand while at the same time suing for the relevant debt or debts. This is because the two procedures have different objectives. The aim in serving a statutory demand is not to recover the debt (although eliciting payment may become a welcome by-product) but to obtain the benefit of a presumption of insolvency through non-compliance with the demand. The aim of recovery proceedings, by contrast, is to compel payment and obtain monetary satisfaction. The same reasoning holds good, in my view, when the alleged indebtedness is asserted by the putative creditor by way of set-off defence in proceedings commenced by the alleged debtor. Again, the putative creditor abandons its stance of waiting for the expiration of a statutory period in order to obtain a presumption of insolvency (or, as an alternative, to obtain voluntary payment by the debtor in the meantime) in favour of positive assertion of the right to be paid as a means of obtaining recovery by way of reduction of a liability.[24]

On this basis, it was, in my opinion, unreasonable of Evton to seek to maintain the statutory demand after 16 August 2016. It should, at that point, have notified Zarzar that the demand was no longer pressed and was withdrawn. It should also have consented to an order setting aside the statutory demand. The date 16 August 2016 (being the point at which Evton should have ceased to press the statutory demand) is, to my mind, more significant for present purposes than 30 September 2016 (the point at which the parties apparently agreed that the statutory demand should be set aside).

1. His Honour determined that each party should bear its own costs up to 16 August 2016, being the date the defendant filed its defence in the New South Wales Local Court proceeding and claimed the debts the subject of its statutory demand by way of set-off, and that the defendant should pay the plaintiff's costs thereafter.
2. In Re Modern Wholesale Jewellery Pty Ltd ('Re Modern Wholesale Jewellery'),[25] Black J referred to Barrett AJA's findings in Re Zarzar and made the following comments:[26]

It seems to me that there is substantial force in his Honour's observations in that respect. It also seems to me that there is [...] a further reason why the contemporaneous, or near contemporaneous, commencement of contested proceedings in respect of a debt and the service of a creditor's statutory demand in respect of that same debt may amount to an abuse of the creditor's statutory demand procedure such that the demand should be set aside under s 459J of the [Act]. That course has the potential, as this case amply demonstrated, to multiply the costs incurred by the parties, since a recipient who contests the debt will then be required, potentially within similarly short periods, both to file a Defence in the substantive proceedings, or otherwise face the risk of default judgment, and to bring an application to set aside the creditor's statutory demand in this Court or the Federal Court of Australia. Issues may then arise, as they have here, as to whether two proceedings should proceed in parallel or one should be deferred until the other has been heard. That course will inevitably increase the costs incurred by the parties, but also involves the risk that scarce hearing time in the Courts, which is funded by the community and largely not by the parties, will be devoted to resolving the procedural difficulties which that course has created.

...

It seems to me that some other reason to set aside a creditor's statutory demand is established where, as here, the course adopted by a creditor that issues a creditor's statutory demand is likely to force the party that receives it to the cost and inconvenience of overlapping proceedings, one brought on the basis that there is no genuine dispute as to the debt, and the other directed to determining such a dispute.

1. In Re Vortex Communications Australia Pty Ltd ('Re Vortex'),[27] Efthim AsJ referred to Re Zarzar and Re Modern Wholesale Jewellery and determined that it was an abuse of process for the defendant to issue a statutory demand when it had also commenced (but not yet served) proceedings against the plaintiff in the United States. His Honour further held:[28]

Even though the defendant has confirmed that the United States proceedings will not be served on the plaintiff until after this application has been heard, the fact remains that there are two proceedings on foot with different objectives and it is an abuse of process according to Barrett J [as his Honour then was]. One proceeding is on foot in order to obtain an event of insolvency, whereas the other is designed to elicit payment. Barrett J states that the inconsistency of those two proceedings leads to the abuse. The statutory demand should have been withdrawn. The statutory demand will also be set aside [under s 459J(1)(b) of the Act] for some other reason.

1. The plaintiff seeks its costs for the following reasons:

(a) it was unreasonable for the defendant to bring the statutory demand. The plaintiff offered to avoid litigation by selling its business to meet the debts, since none of its investors wanted to continue with the business, however, the defendant refused and instead issued a statutory demand to secure proof of insolvency - a vastly more disruptive, expensive and slower process;

(b) relatedly, in its substantive submissions dated 18 April 2024, the plaintiff refers to Re Zarzar and Re Modern Wholesale Jewellery, among other authorities, in support of the submission that it was an abuse of the statutory demand procedure for the defendant to engage that process while contemporaneously suing for the relevant debts in the oppression proceeding, despite the fact the statutory demand was issued first;

(c) it was also unreasonable for the defendant to maintain the statutory demand. The plaintiff submits that it repeatedly invited the defendant to withdraw the statutory demand and negotiate the parties' commercial separation, including in a letter dated 2 October 2024. By that letter, the plaintiff offered that should the defendant withdraw the statutory demand or agree to have the set aside application stayed for sufficient time to allow an orderly exit for Mr Bugeja, the plaintiff would agree that each party bear its own costs and that the assets of the business be sold as a going concern;

(d) the plaintiff made every effort to avoid unnecessary litigation by informing the defendant about the existence and nature of the dispute prior to commencing this proceeding. In its letter dated 17 September 2024, the plaintiff explained that neither of the unit holders' undrawn entitlements nor loans were payable upon demand. The plaintiff also disputed the quantum of the amounts claimed by the defendant. In addition, the plaintiff alleged the demand was an abuse of process because it was an attempt by the defendant and/or Mr Bugeja to bring commercial pressure upon the plaintiff to surrender to Mr Bugeja's numerous complaints or to pay him a higher price than market value for his units;

(e) the defendant completely capitulated prior to the hearing on the merits by withdrawing the demand, which amounts to a substantial victory for the plaintiff and a loss for the defendant. Although the defendant said in a letter dated 2 May 2025 that it withdrew the statutory demand because it had received a detailed valuation report suggesting the plaintiff was solvent, the plaintiff submits the defendant received the valuation a month earlier, yet waited for the parties to exchange written submissions, attend mediation and prepare for the final hearing, before formally withdrawing the statutory demand; and

(f) the defendant adopted a truculent and misguided approach to evidentiary objections in connection with the first Stoupas affidavit.

1. By contrast, the defendant argues there should be no order as to costs on the following bases:

(a) service of the statutory demand on the plaintiff was not an 'abuse of process' and was done on the basis of evidence that the plaintiff was insolvent. Such evidence comprised a credit search, a 2024 financial year tax return, and a profit and loss statement dated July 2024;

(b) the plaintiff produced no evidence that it was solvent either before or after service of the statutory demand. The first evidence that the plaintiff may be solvent was found in a valuation report completed in the oppression proceeding and provided to the defendant on 16 April 2025;

(c) upon considering the valuation report, the defendant withdrew the statutory demand. The time taken to consider the report was not unreasonable (being a little over two weeks over the course of the Easter break). The defendant's conduct was proper and reasonable and it is inaccurate to describe its withdrawal of the statutory demand as a capitulation; and

(d) had the first Stoupas affidavit not included 'without prejudice' material, the Court's time and associated legal costs would not have been wasted.

1. In its substantive submissions dated 28 April 2025, the defendant addresses the question of abuse of process in greater detail. The defendant says the statutory demand procedure and the oppression proceeding serve distinct purposes. To the extent the unitholder entitlements and loans are issues in both the set aside application and the oppression proceeding, the legal tests in each proceeding are different. Further, the authorities relied on by the plaintiff in support of a finding of abuse of process can be distinguished because they involved parallel debt recovery proceedings, whereas the parallel proceeding in this case is an oppression proceeding. The defendant says it has acted in accordance with its overarching obligations under the Civil Procedure Act 2010 (Vic) ('CPA') by 'seeking to have debts it alleges are undisputed either paid, or the insolvent debtor wound up, before pursuing a more complex and delayed oppressive conduct claim against the [p]laintiff'.

1. Despite the absence of a hearing on the merits, I consider the plaintiff should receive the benefit of a costs order in this case.
2. In my view, it was an abuse of process for the defendant to have maintained the statutory demand after commencing its oppression proceeding on 1 November 2024. The fact that the oppression proceeding is not a proceeding for recovery of a debt is beside the point. Nor is it material that the oppression proceeding and the set aside proceeding involve different legal tests. As already observed, the prayer for relief in the originating process to the oppression proceeding seeks an order pursuant to s 233 of the Act that the plaintiff pay essentially the same amounts to which the statutory demand relates (adjusted for payments already made). The plaintiff has therefore been vexed by two legal processes - the statutory demand (and the resulting set aside application) and the oppression proceeding - each of which put squarely in issue the existence and amount of the alleged debts. The fact the oppression proceeding necessitates the defendant adducing proof that such debts are due and payable, is an implicit recognition that the debts claimed in the statutory demand give rise to triable issues not amenable to the statutory demand procedure.
3. The plaintiff had no option but to commence its application to set aside the statutory demand within 21 days in order to avoid the presumption of insolvency under s 459C(2)(a), which the defendant may have relied upon to commence a future winding up proceeding under ss 459A and 459P of the Act, and the strict operation of s 459S as a statutory bar to any later dispute about the debts in any such winding up proceeding. It has been necessary for the plaintiff to respond to allegations about the same debts in the oppression proceeding. This duplication has unnecessarily increased costs and wasted scarce judicial time.
4. At the same time, the objectives of the statutory demand and the oppression proceeding are fundamentally inconsistent. As Barret AJA explained in Re Zarzar, the aim in serving a statutory demand is not to recover the debt (although eliciting payment may be a welcome by-product) but to obtain the benefit of a presumption of insolvency through non-compliance with the demand.[29] A statutory demand is a precursor to a winding up proceeding which is a representative process brought for the benefit and protection of all creditors, including existing and future creditors.[30] By contrast, the predominant aims of the oppression proceeding are to compel payment of the alleged debts and to obtain payment for the fair value of the defendant's shares in the plaintiff. While the defendant also seeks the winding up of the plaintiff in the oppression proceeding by way of alternative relief under s 233 of the Act, this would require the defendant to first demonstrate there has been oppression within the meaning of s 232 of the Act, which is not predicated on proof of the plaintiff's insolvency.
5. I reject the defendant's submission that it could somehow use the statutory demand procedure to have the alleged debts paid or the insolvent plaintiff debtor wound up 'before pursuing a more complex and delayed' oppression proceeding. If the defendant genuinely believed the plaintiff company was insolvent, it is unclear why it took the subsequent step of issuing the oppression proceeding. Further, had the defendant ultimately obtained a winding up order on the basis of the plaintiff's non-compliance with the statutory demand, it is unclear what purpose the oppression proceeding would continue to serve, particularly in light of the statutory moratorium on claims against a company wound up in insolvency under s 471B of the Act. Nor is it apparent how the defendant could realise its equity in the plaintiff after it was wound up (unless of course the winding up resulted in a surplus).
6. The defendant has simply been unable to reconcile the clear inconsistency between its use of the statutory demand procedure and its initiation of the oppression proceeding, in which it seeks fundamentally the same debts.
7. It is also troubling that Mr Bugeja (as director of the defendant) caused the defendant (a shareholder of the plaintiff) to issue a statutory demand against the plaintiff (of which Mr Bugeja is also a director) and to set in train a legal process for its potential winding up, whilst at the same time commencing parallel substantive proceedings alleging oppression in the affairs of the plaintiff in which it seeks payment of substantially the same debts. In fact, the evidence given by Mr Bugeja suggests the defendant had been preparing the oppression proceeding for some time (possibly prior to the issuing of the statutory demand).
8. The defendant's argument that the plaintiff did not produce any evidence that it was solvent, before or after the service of the statutory demand, is misconceived. Evidence as to the solvency of a debtor company is not strictly relevant for the purposes of determining an application to set aside a statutory demand.[31] In any event, I do not understand the plaintiff to have relied on solvency in support of any of its grounds to set aside the statutory demand, including its abuse of process ground.
9. Immediately upon the initiation of the oppression proceeding on 1 November 2024, the defendant ought to have notified the plaintiff that the demand was no longer pressed and was withdrawn. This would have enabled the parties to seek the resolution of the real issues in dispute in the oppression proceeding, instead of expending unnecessary costs preparing the set aside application for hearing. The failure by the defendant to do so was plainly unreasonable. It was also inconsistent with the defendant's overarching obligations in the CPA to use reasonable endeavours to resolve the dispute (s 22), to narrow the issues in dispute (s 23), and to ensure costs were reasonable and proportionate (s 24).
10. The defendant's decision to withdraw the demand on 2 May 2025, approximately two weeks after receiving the valuation report on 16 April 2025 in the oppression proceeding, came too late. It also amounted to a clear capitulation by the defendant four days prior to the final hearing listed on 6 May 2025. Further, it has resulted in the plaintiff achieving a substantial victory in the set aside application.
11. However, some account should also be taken of the costs associated with the defendant's summons to exclude arguable 'without prejudice' evidence in the first Stoupas affidavit filed in support of the set aside application. Orders were ultimately made by consent that the affidavit be redacted and that the costs of the defendant's summons be reserved. Without determining whether the redacted parts of the affidavit were in fact 'without prejudice', I am content to proceed on the basis that the plaintiff should wear some of the costs associated with that part of the process. It is therefore appropriate to slightly discount the plaintiff's entitlement costs as against the defendant.

1. In the exercise of the Court's discretion, and having regard to the particular circumstances of the case, the defendant should pay 90 per cent of the plaintiff's costs from 1 November 2024 on a standard basis. For the avoidance of doubt, this will include the plaintiff's costs associated with the argument about costs.

WALKER'S DOUGHNUTS BENDIGO PTY LTD (ACN 648 451 370)

[1] Supreme Court of Victoria proceeding S ECI 2024 05869.

[2] In Doughnut Truck's points of claim filed 9 July 2025, a revised amount of $213,182 is claimed.

[3] See s 24 of the Supreme Court Act 1986 (Vic) and s 65C of the Civil Procedure Act 2010 (Vic). See also s 1335(2) of the Corporations Act 2001 (Cth) ('Act').

[4] See Innes-Irons & Anor v Forrest (Costs) [2017] VSC 10 [5] (Derham AsJ); Towercom Pty Ltd v Fahour (No 4) [2013] VSC 585 [6] (Derham AsJ) ('Towercom'); Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 557 (Dawson J); _Oshlack v Richmond River Counci_l [1998] HCA 11; (1998) 193 CLR 72, 86 (Gaudron and Gummow JJ) ('Oshlack').

[5] See Towercom; Ritter v Godfrey [1920] 2 KB 47, 53 (Atkin LJ); Donald Campbell & Co Ltd v Pollak [1927] AC 732, 809 (Viscount Cave LC); Milne v Attorney-General (Tas) [1956] HCA 48; (1956) 95 CLR 460, 477 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ); Oshlack, 77, 86.

[6] Global Alliance Network v Sensis Pty Ltd [2007] NSWSC 967 [16] (Hammerschlag J). See also s 459N of the Act which provides that where a court sets aside a statutory demand it may order the person who served the demand to pay the company's costs in relation to the s 459G application.

[7] See Ford Motor Co of Australia v Arrowcrest Group Pty Ltd [2003] FCA 597; iInvest Pty Ltd v Metyor Inc [2003] NSWSC 879 [22], [30]-[33] (Palmer J); Blazai Pty Ltd v Palasty [2011] NSWSC 225.

[8] Ayrton Investments Pty Ltd v Andrlik [2000] ACTSC 55; (2000) 34 ACSR 643, 647 (Higgins J); Dynamics Co Pty Ltd v G & M Nicholas Pty Ltd [2012] NSWSC 206 [26]-[28] (Black J). See also Oxley Corporate Finance Pty Ltd v Fieldstone Pty Ltd [2002] NSWSC 110 [20] (Barrett J, as his Honour then was); Re Chameleon Mining NL; Chameleon Mining NL v Atanaskovic Hartnell [2009] NSWSC 602 [72] (Austin J).

[9] Specialty Fashion Group Ltd v Global Red Australia Pty Ltd [2012] NSWSC 256 [11] (Black J), citing Lake Burrendong State Park Trust v Thompson [2011] NSWSC 1554 [71] (Hallen AsJ).

[10] Franpina Developments Pty Ltd v John Anthony Arena Pty Ltd [2022] NSWSC 57 [20] (Darke J) ('Franpina Developments'). See also G E Dal Pont, Law of Costs (LexisNexis Australia, 5th ed, 2021), [14.69] ('Law of Costs').

[11] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J) ('Re Minister for Immigration and Ethnic Affairs'); Franpina Developments [20].

[12] Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585; (1993) 44 FCR 194, 201 (Hill J) ('ASIC v Aust-Home'); Clark v ING Life Limited [2007] FCA 1960 [16] (Rares J); Elevate Brandpartners Ltd Hammond (No 4) [2020] FCA 421 [20] (Stewart J).

[13] ASIC v Aust-Home 201. See also Law of Costs [14.71].

[15] Re Minister for Immigration and Ethnic Affairs 624, citing ASIC v Aust-Home 201.

[16] Re Minister for Immigration and Ethnic Affairs 625, applied in Mi-Ok Pty Ltd v The Owners of Strata Plan No 56059 [2006] NSWSC 573 [6] (Barrett J) and Re Telegraph Point Sports & Recreation Club Limited [2020] NSWSC 616 [3], [13] (Black J) ('Telegraph Point') in circumstances where a statutory demand was set aside by consent but the parties argued about costs. See also Dymocks Franchise Systems (NSW) Pty Ltd v Chapter Three Pty Ltd [2022] NSWSC 35 [2] (Stevenson J).

[17] Re Minister for Immigration and Ethnic Affairs 624-625. In Telegraph Point [13], Black J could not be so satisfied.

[18] Soudan Lane Pty Ltd v Glen Bradshaw t/as Pacific Coast Digital [2007] NSWSC 772 [4] (White J).

[19] One.Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548, 553 (Burchett J).

[20] See In the matter of DCL Construction Group [2017] NSWSC 839 [13] (Brereton J, as his Honour then was) ('DCL Construction'); Re Zarzar Pty Ltd [2017] NSWSC 93 ('Re Zarzar'); Re Modern Wholesale Jewellery Pty Ltd [2017] NSWSC 236 [30]-[31] ('Re Modern Wholesale Jewellery'); Re Vortex Communications Australia Pty Ltd [2020] VSC 796 ('Re Vortex'). See also Perlake Pty Ltd v Finance and Mortgage Corporation (NSW) Pty Ltd [1996] 15 ACLC 76 and Murphy & Ors v Teakbridge [1999] NSWSC 1231.

[22] [2017] NSWSC 93.

[25] [2017] NSWSC 236. This case involved debts identified in statutory demands which were the subject of District Court proceedings brought by the defendant. The plaintiff submitted the statutory demand should be set aside on the basis that it involves an abuse of process, where the amounts and debts on which it is based are the subject of proceedings commenced after issuing the statutory demand.

[27] [2020] VSC 796.

[30] See Intergraph Public Safety Pty Ltd v Tess Lawrence Media Services Pty Ltd [1996] FCA 1391; (1996) 19 ACSR 523, 527 (Heerey J); South East Water Ltd v Kitoria Pty Ltd (1996) 21 ACSR 465, 472 (Ryan J); Re Wallace Building Systems Pty Ltd [2024] VSC 767 [79] (Hetyey AsJ) (and the additional authorities referred to there).

[31] See Hornet Aviation v Ansett (1994) 16 ACSR 21, 28; Re MHC Pathology Pty Ltd [2020] VSC 789; (2020) 356 FLR 222, 247 (Hetyey AsJ).