Maniotis v Valimi Pty Ltd

(2002) 4 VR 386; [2002] VSCA 91

Victorian Court of Appeal

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Interrogate

Catchwords

1. Company Law
2. › Insolvency
3. › Statutory demand
4. › Application to set aside
5. › Offsetting claim
6. › Whether company may rely on claim where proceeding to enforce it has been temporarily stayed
7. › Corporations Act 2001 (Cth), s 459H
1. Company Law
2. › Insolvency
3. › Statutory demand
4. › Offsetting claim
5. › Definition
6. › Whether 'has' in s 459H(5) requires claim to be presently enforceable by action
7. › Corporations Act 2001 (Cth), s 459H(5)
1. Practice and Procedure
2. › Stay of proceedings
3. › Effect of temporary stay
4. › Whether stay extinguishes or renders ineffective underlying cause of action

Quick Take

A claim that is the subject of a temporary stay of proceedings (such as a stay pending payment of interlocutory costs) remains an 'offsetting claim' within s 459H(5) of the Corporations Act 2001 and can be relied upon to set aside a statutory demand. The word 'has' in the definition of 'offsetting claim' means 'possesses or holds' and does not require the claim to be presently enforceable by action. The English bankruptcy authorities requiring a cross-demand to be 'effective' at the time of hearing do not apply to the interpretation of s 459H.