Damian Clothier KC and Jonathan Hohl appeared for the respondent, instructed by Corrs Chambers Westgarth.
The case involved a dispute over a technical services advisory agreement (TSAA), where the respondent alleged the applicant had not paid consulting service fees of $1,074,006.85 and subsequently issued a creditor’s statutory demand. The applicant sought orders to set aside the statutory demand pursuant to ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) on grounds that there was a breach of fiduciary duty in the procurement of the TSAA.
The primary issues considered were whether there was a genuine dispute between the parties and whether the dispute clause in the TSAA meant there was another reason to set aside the statutory demand.
The Court found that there was a genuine dispute between the parties and sufficient facts were raised to establish breach of fiduciary duty warranting further investigation. Additionally, the Court found that the failure to comply with the dispute resolution clause of the TSAA was another reason to set aside the statutory demand pursuant to s 459J. The Court ultimately ordered that the creditor’s statutory demand issued by the respondent to the applicant be set aside pursuant to ss 459G and 459H or alternatively 459J of the Corporations Act 2001 (Cth).
The judgment can be read by clicking here
