Montedeen Pty Ltd v Discount Acceptance Corp Pty Ltd [1998] FCA 988

FEDERAL COURT OF AUSTRALIA CORPORATIONS LAW - statutory demand – application to set aside statutory demand – whether statutory demand should be set aside – whether genuine dispute as to the existence and the amount of the debt where debts assigned to the respondent and, despite written notice of the assignment, the applicant paid part of the debt to the assignor – whether offsetting claim existed in respect to a set-off claimed by the applicant where there was no evidence that the respondent expressly or impliedly authorised the set-off against the assigned debt– whether evidence of the applicant's solvency is a sufficient basis for establishing "some other reason why the demand should be set aside" – Abuse of process – whether in all the circumstances there was evidence of some improper purpose Property Law Act 1958 (Vic), s 124 Corporations Law, Part 5.4, ss 459E(2)(e), 459H(1), 459H(1)(a), 459J(1), 459J(1)(a), 459Q Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) FCR 452 Elite Motor Campers Australia v Leisureport Pty Ltd (1996) 14 ACLC 1,759 Dewina Trading SDN BHN v Ion International Pty Ltd (1996) 14 ACLC 1,603

MONTEDEEN PTY LTD (ACN 006 151 579) –v- DISCOUNT ACCEPTANCE CORPORATION PTY LTD VG 3142 OF 1998 MILLANE JR MELBOURNE 18 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 3142 of 1998

BETWEEN: Montedeen Pty Ltd (ACN 006 151 579)

Applicant

AND: Discount Acceptance Corporation Pty Ltd

Respondent

JUDGE(S): JUDICIAL REGISTRAR MILLANE

DATE OF ORDER: 18 August 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The applicant's setting aside application is dismissed. 2. The applicant pay the respondent's costs of the setting aside application as taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.