In the recent decision of Radiomio Pty Ltd v Kendell; SISS Business Systems Limited v Kendell  VSC 511 the Victorian Supreme Court considered when a statutory demand will be set aside for ‘some other reason’.
Over a relatively short period of time Mr Kendell served a series of statutory demands both signed and unsigned, which varied on each occasion as to the amounts demanded.
Radiomio Pty Ltd (Radiomio) and SISS Business Systems Limited (SISS) applied to have several statutory demands set aside under s 459G of the Corporations Act 2001 on the traditional grounds of there being a genuine dispute as to the debt and having offsetting claims, but also relied on the demand being set aside ‘for some other reason’ pursuant to s 459J.
Radiomio and SISS submitted that it was not safe for the court to rely on Mr Kendall’s affidavits in support of the statutory demands, in circumstances where Mr Kendell had previously served demands for significantly different amounts. Radiomio also submitted that Mr Kendall had previously sworn that there was no genuine dispute as to the debt, however, had subsequently varied the sums demanded in affidavits he swore later.
The court set aside the statutory demands.
When deciding whether the statutory demands should be set aside ‘for some other reason’, the court noted that the serious consequences associated with the service of statutory demands meant that the accompanying affidavits must be taken seriously.
The court found that it was an abuse of process to serve a series of differing demands, each of which asserted that the sum claimed was due and payable, accompanied by affidavits on each such occasion averring that there was no genuine dispute in respect of those debts.
The statements in the supporting affidavits could not be sound when the amounts were then varied in subsequent demands.
The court held that Mr Kendell’s conduct amounted to reckless, careless and vexatious use of the demand regime, and it was appropriate to set aside the demands on this basis alone.
This decision is a reminder that the statutory demand regime is a serious one that should not be abused. Creditors should seriously consider on a case-by-case basis whether the issue of a statutory demand is an appropriate mechanism in the circumstances.
Creditors should ensure that demands issued are correct at first instance, as service of multiple demands with accompanying affidavits may amount to an abuse of process.
Creditors should generally keep in mind the court’s discretion to set aside a demand for ‘some other reason,’ and the reputational and costs implications such a decision may have.
The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.