Viva Olives Pty Ltd v Origin Olives Australasia Pty Ltd [2012] FCA 545

Viva Olives Pty Ltd v Origin Olives Australasia Pty Ltd [2012] FCA 545

There was a genuine dispute as to whether a fresh contract came into existence after expiry of the original agreement because the Plaintiff's failure to pay licence fees was inconsistent with conduct as if the expired contract remained binding, and the correspondence did not remove that dispute. However, the Plaintiff admitted that $22,370.44 was due and payable, made no offsetting claim, and that amount exceeded the statutory minimum, so the statutory demand should be varied rather than set aside.

Jurisdiction
Australia
Judgment Date
29 May 2012
Procedural Posture
Application to Set Aside or Vary Statutory Demand / Judgment and Orders
Outcome
Statutory demands varied to the admitted substantiated amount; not set aside.
Legal Topics
['statutory Demand' 'genuine Dispute About Existence or Amount of Debt' 'variation of Statutory Demand' 'implied Contract After Expiry of Fixed Term Contract' 'licence Fees for Trademarks']
['corporations' 'insolvency' 'contract'] ['statutory Demand' 'genuine Dispute About Existence or Amount of Debt' 'variation of Statutory Demand' 'implied Contract After Expiry of Fixed Term Contract' 'licence Fees for Trademarks']

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Procedural Posture

Application to Set Aside or Vary Statutory Demand / Judgment and Orders

Legal Issues

  1. 1 ['Whether there was a genuine dispute under s 459H(1)(a) of the Corporations Act 2001 (Cth) about the existence or amount of the debt claimed in the statutory demand.' 'Whether, after the expiry of the original agreement, a new agreement should be implied on the same terms, including an annual licence fee of $175,000.' 'Whether the statutory demand should be set aside or varied to the admitted amount.']

Ratio Decidendi

There was a genuine dispute as to whether a fresh contract came into existence after expiry of the original agreement because the Plaintiff's failure to pay licence fees was inconsistent with conduct as if the expired contract remained binding, and the correspondence did not remove that dispute. However, the Plaintiff admitted that $22,370.44 was due and payable, made no offsetting claim, and that amount exceeded the statutory minimum, so the statutory demand should be varied rather than set aside.

Court Disposition

Statutory demands varied to the admitted substantiated amount; not set aside.

Orders

  • ['Pursuant to s 459H of the Corporations Act 2001 (Cth), the statutory demand dated 28 September 2011 be varied so that the amount sought is $22,370.44.' 'The statutory demand, as varied by Order 1, be deemed to have had effect from 5 October 2011.' "The Defendant pay the Plaintiff's costs as taxed or agreed."...