FEDERAL COURT OF AUSTRALIA

Treasury Wine Estates Vintners Limited v Garrett [2016] FCA 690

ORDERS

THE COURT ORDERS THAT:

1.    The defendant’s statutory demand for payment of a debt in the sum of $150,000 dated 21 April 2016 is set aside.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J:

1    By an application filed on 17 May 2016, the applicant, Treasury Wine Estates Vintners Limited, seeks an order that the statutory demand for payment of the debt in the sum of $150,000 served on it by the defendant, Andrew Morton Garrett on 21 April 2016, be set aside.

2    A case management conference was set down for hearing on 1 June 2016. On 31 May 2016 the defendant filed an interlocutory application for judgment which was also listed for 1 June 2016. In his application the defendant sought an order that the application be determined summarily on the papers and for the winding up of the plaintiff.

3    The significance of the defendant’s interlocutory application is that he was, from the date of hearing recorded on it, aware that it was to be listed today. Further, Mr Critchley, the solicitor for the plaintiff who appeared on the application, informed the Court that on 31 May 2016, the plaintiff served on the defendant an outline of submissions which indicated that the plaintiff would seek an order that the statutory demand, served by the defendant, and dated 21 April 2016, be set aside at the hearing on 1 June 2016.

4    From that evidence from the bar table, I accept that the defendant was aware that the plaintiff would seek final orders in the proceeding at the hearing on 1 June 2016.

5    The statutory demand served by the defendant on the plaintiff is the 21st statutory demand served by him. Orders declaring the defendant a vexatious litigant have been made and have the effect that any proceedings filed by him are stayed in similar circumstances.

6    Concerning a statutory demand dated 3 December 2015, Middleton J ordered in Treasury Wine Estates Vintners Limited v Garrett, in the matter of Treasury Wine Estates Vintners Limited [2016] FCA 496 that that statutory demand be set aside for the following reasons:

25    First, Mr Garrett has not complied with the vexatious litigant orders made by this Court. On this basis, the statutory demand should be stayed by operation of s 37AQ(2) of the FCA, and as such cannot be relied upon by him. In itself this would be sufficient basis to set aside the statutory demand under s 459J(1)(b) of the Act.

26    Further, the statutory demand should be set aside for the same reasons as the statutory demands were set aside before Davies J in Treasury Wine Estates Vintners Limited v Garrett (2015) 235 FCR 577.

27    The description of the debt in this proceeding is essentially the same as the descriptions in the statutory demands, the subject of Davies J’s decision – see (2015) 235 FCR 577 at [18], [30] and [36]. The inadequacy of the descriptions in those demands was one of the bases upon which Davies J set them aside. I set aside the statutory demand the subject of this proceeding on the same basis.

28    Then the statutory demand should also be set aside because there is a genuine     dispute concerning its existence: see s 459H of the Act.

7    For the same reasons, the statutory demand dated 21 April 2016 is set aside.

Associate:

Dated:    8 June 2016