AMI Australia Holdings Pty Ltd v PHD Networks Pty Ltd [2011] NSWSC 161

Supreme Court New South Wales

Medium Neutral Citation: AMI Australia Holdings Pty Ltd v PHD Networks Pty Ltd [2011] NSWSC 161 Hearing dates: 14 December 2010 Decision date: 15 March 2011 Before: Associate Justice Macready Decision: I vary the demand dated 19 May 2010 by reducing it to $1,990,981.32 as from the date when it was served on the plaintiff. Catchwords: Corporations law. Application to set aside statutory demand on numerous bases. Only one offsetting claim established in respect of a defamatory email. Demand varied. Category: Principal judgment Parties: AMI Australia Holdings Pty Ltd v PHD Networks Pty Ltd Representation: Crisp Legal for plaintiff File Number(s): 2010/145992

Judgment 1This is an application under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand served by the defendant on the plaintiff for payment of a debt. The statutory demand claims the amount of $2,240,981.32. The description of the debt in the schedule to the demand refers to unpaid invoices rendered by the defendant to the plaintiff during the period of 31 October 2009 to 15 January 2010. The invoices were for placing the plaintiff's product advertisements in the media. 2The plaintiff moves for an order setting aside the statutory demand, principally on the basis that there is no debt of a s 459E kind or the demand was made on the wrong entity. Alternatively, the plaintiff seeks an order under s 459H reducing the amount of the demand by the amount of an offsetting claim. 3The plaintiff relies on eleven grounds for setting aside the statutory demand. They can be generally described as encompassing the following issues: whether a contract between the parties existed, its possible terms and its possible variation(s); whether the plaintiff is the correct debtor company; whether the entire debt was due and payable at the time the demand was issued; whether the defendant was the plaintiff's agent at law; an offsetting claim in malicious falsehood and an offsetting claim pursuant to section 52 Trade Practices Act 1974 (Cth); and finally, whether there are defects in the affidavit accompanying the demand that should result in the demand being set aside. 4The plaintiff's application to set aside the statutory demand is supported by the affidavit of Mr Jacov Vaisman dated 10 June 2010 and a further affidavit sworn 26 November 2010. Mr Vaisman is the director and secretary of the plaintiff and its wholly owned subsidiary, Advanced Medical Institute Pty Ltd (AMIPL). 5Since there are questions as to whether it was the plaintiff or AMIPL that engaged the service of the defendant it is worth setting out some chronological facts that can be ascertained from the evidence.