Federal Court of Australia

Australian Steel Manufacturing Pty Ltd v Selection Steel Trading Pty Ltd [2025] FCA 407

ORDERS

THE COURT ORDERS THAT:

1.    Orders 1, 3 and 4 of the Orders of Judicial Registrar Schmidt made on 16 September 2024 be set aside.

2.    Pursuant to s 459H of the Corporations Act 2001 (Cth), the defendant’s statutory demand for payment of debt dated 5 June 2024 be set aside.

3.    The defendant pay 70% of the plaintiff’s costs of the proceeding.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an application for a review of a registrar’s decision dismissing the plaintiff’s application to set aside a statutory demand. That application is opposed by the defendant.

2    The plaintiff, Australian Steel Manufacturing Pty Ltd (Australian Steel), is a manufacturer of products that include steel tubing and piping under the business name ‘Australian Pipe & Tube’ (APT). The defendant, Selection Steel Trading Pty Ltd (Selection Steel), supplies steel coil to Australian Steel.

3    On 5 June 2024, pursuant to s 459E of the Corporations Act 2001 (Cth) (Act), Selection Steel served on Australian Steel a creditor’s statutory demand for payment of debt. The statutory demand claimed that Australian Steel owes Selection Steel a debt of $1,116,010.32, and was accompanied by an affidavit of debt sworn on the same date by Rodney Gregory, the Managing Director of Selection Steel. The schedule to the statutory demand described the alleged debt as ‘Money due and owing by the company to the creditor for goods and services provided pursuant to a credit agreement dated 15 February 2022 as particularised in the statement attached’.

4    On 27 June 2024, Australian Steel filed an application, pursuant to ss 459G, 459H and 459J of the Act, seeking orders setting aside the statutory demand. The application was commenced by way of originating process dated 27 June 2024, which was subsequently amended on 15 July 2024.

5    The application to set aside the statutory demand was heard by a Judicial Registrar of this Court on 22 August 2024. On 16 September 2024, the Judicial Registrar made orders dismissing the application and delivered written reasons for those orders. An order was also made extending the time to comply with the statutory demand until 23 September 2024.

6    On 20 September 2024, Australian Steel filed the application the subject of these reasons, being an interlocutory application seeking, pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 16.1 of the Federal Court (Corporations) Rules 2020 (Cth), a review of the Judicial Registrar’s decision.

7    On 23 September 2024, orders were made timetabling the application for review to hearing. An order was also made, pursuant to s 459F(2)(a)(i) of the Act, extending the period for compliance with the statutory demand until the date 7 days after the making of orders by the Court on determination of the application for review.

8    The Court heard the application for review on 17 December 2024.

9    For the reasons that follow, the statutory demand should be set aside.

Evidence adduced on the review hearing

10    Anticipating that the parties may wish to supplement the evidence that had been adduced in the hearing before the Judicial Registrar, on 23 September 2025 the Court made orders timetabling the filing of further evidence and outline submissions. The hearing of the application for review was listed for 17 December 2024.

11    Australian Steel failed to comply with the timetabling orders. It was approximately two months late in filing further affidavits on which it wished to rely at the hearing, and approximately one month late in filing its written outline of submissions. Neither Selection Steel nor the Court were notified by Australian Steel of any intention to deviate from the Court’s orders.

12    On 13 December 2024, the solicitors for Australian Steel contacted my chambers requesting that the Court list the matter for an interlocutory hearing at which it would seek leave to regularise the late filing and service of affidavits and submissions. In his affidavit dated 13 December 2024, Mr Lancefield, the solicitor for Australian Steel, stated that the late filing of the relevant documents was due to counsel unavailability. My chambers informed the parties that I would hear Australian Steel’s application for leave to regularise the late filing during the review hearing that was listed for 17 December 2024.

13    Australian Steel’s explanation for failing to comply with the Court’s orders was unsatisfactory. If counsel is unavailable to complete relevant work within the timeframes required by the Court’s orders, then it is the obligation of the instructing solicitor to instruct alternate counsel or to approach the Court to seek a variation to the orders.

14    At the review hearing, Selection Steel objected to the late-filed affidavits because it had insufficient time to prepare responsive material and would therefore be prejudiced. Selection Steel did not press an objection to the late filing of Australian Steel’s written outline of submissions.

15    Selection Steel acknowledged, however, that permitting Australian Steel to rely on some limited parts of the late-filed affidavits would not cause it prejudice and those limited parts of the affidavits were read. Selection Steel was correspondingly granted leave to rely on a further affidavit to the extent that it was responsive to the limited parts of the late-filed affidavits on which Australian Steel was permitted to rely.

16    Having regard to the foregoing, at the hearing Australian Steel relied on written submissions filed on 9 December 2024 and the following affidavits (being affidavits relied upon in the hearing before the Judicial Registrar and the additional affidavits filed on the application for review for which leave for late-filing was granted):

(a)    an affidavit of Jodie Spiteri, an accounts manager of Australian Steel, sworn on 27 June 2024;

(b)    two affidavits of Sahil Matta, an IT consultant who undertakes ad hoc work for Australian Steel, sworn on 19 August 2024 and 21 August 2024;

(c)    two affidavits of Marina Pirotta, a purchasing officer of Australian Steel, sworn on 19 August 2024 and 9 December 2024; and

(d)    an affidavit of David Brandi, a consultant for Australian Steel, sworn on 4 December 2024 (limited to paragraphs 1-2 and 13-15).

17    Selection Steel relied on written submissions filed on 18 November 2024, together with the written submissions filed on 21 August 2024 before the Judicial Registrar. Selection Steel also relied on three affidavits of Mr Gregory sworn on 6 August 2024, 21 August 2024 and 16 December 2024 (the latter being limited to paragraphs 1-6, 11-13 and 16-31).

Applicable principles and legislative provisions

Hearing de novo

18    A review of a registrar’s decision under s 35A(5) of the FCA Act is by way of a hearing de novo: Harris v Caladine (1991) 172 CLR 84; Bechara v Bates (2021) 286 FCR 166 (Bechara) at [17]. The review does not hinge, or focus, upon error in the decision of the registrar; the matter is considered afresh on the evidence and on the law at the time of the review: Bechara at [17].

Setting aside a statutory demand

19    Section 459G(1) of the Act provides that a company may apply to the Court for an order setting aside a statutory demand served on the company. The grounds on which an application to set aside a statutory demand can be made under s 459G are set out in ss 459H and 459J of the Act. Although Australian Steel’s originating application referred to both ss 459H and 459J, at the review hearing it only placed reliance on the grounds stated in s 459H.

20    Section 459H states as follows:

459H      Determination of application where there is a dispute or offsetting claim

(1)     This section applies where, on an application under section 459G, the Court is satisfied of either or both of the following:

(a)     that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates;

(b)     that the company has an offsetting claim.

(2)     The Court must calculate the substantiated amount of the demand in accordance with the formula:

Admitted total – Offsetting total

where:

admitted total means:

(a)     the admitted amount of the debt; or

(b)     the total of the respective admitted amounts of the debts;

as the case requires, to which the demand relates.

offsetting total means:

(a)     if the Court is satisfied that the company has only one offsetting claim–the amount of that claim; or

(b)     if the Court is satisfied that the company has 2 or more offsetting claims–the total of the amounts of those claims; or

(c)     otherwise–a nil amount.

(3)     If the substantiated amount is less than the statutory minimum, the Court must, by order, set aside the demand.

(4)     If the substantiated amount is at least as great as the statutory minimum, the Court may make an order:

(a)     varying the demand as specified in the order; and

(b)     declaring the demand to have had effect, as so varied, as from when the demand was served on the company.

(5)     In this section:

admitted amount, in relation to a debt, means:

(a)     if the Court is satisfied that there is a genuine dispute between the company and the respondent about the existence of the debt–a nil amount; or

(b)     if the Court is satisfied that there is a genuine dispute between the company and the respondent about the amount of the debt–so much of that amount as the Court is satisfied is not the subject of such a dispute; or

(c)     otherwise–the amount of the debt.

offsetting claim means a genuine claim that the company has against the respondent by way of counterclaim, set‑off or cross‑demand (even if it does not arise out of the same transaction or circumstances as a debt to which the demand relates).

respondent means the person who served the demand on the company.

21    Australian Steel contends that there is either: a genuine dispute as to the existence or amount of the debts the subject of the statutory demand; or that Australian Steel has an offsetting claim, the value of which exceeds the amount claimed in the statutory demand.

22    The principles governing what is required to establish a genuine dispute or offsetting claim are well-settled. In Malec Holdings v Scotts Agencies [2015] VSCA 330, Kyrou, Ferguson and Kaye JJA summarised the principles as follows (at [47]-[51], citations omitted):

47     The terms of s 459H of the Corporations Act and the authorities make clear that, on an application to set aside a statutory demand, the applicant is required only to establish a genuine dispute or offsetting claim. The applicant is required to evidence the assertions relevant to the alleged dispute or offsetting claim only to the extent necessary for that primary task. It is not necessary for the applicant to advance a fully evidenced claim. Therefore, the task faced by an applicant is by no means at all a difficult or demanding one.

48    In determining such an application, it is not necessary or appropriate for a court to engage in an in-depth examination or determination of the merits of the alleged dispute. This is because an application alleging a genuine dispute or offsetting claim is akin to one for an interlocutory injunction and requires the applicant to establish that there is a ‘plausible contention requiring investigation’ of the existence of either a dispute as to the debt or an offsetting claim. It is therefore not helpful to perceive that one party is more likely than the other to succeed or that the eventual state of the account between the parties is more likely to be one result than another. Further, the determination of the ‘ultimate question’ of the existence of the debt at a substantive hearing should not be compromised.

49    The court is required to determine whether the dispute or offsetting claim is ‘genuine’. It has been said that the criterion of a ‘genuine’ dispute requires that the dispute be bona fide and truly exist in fact and that the grounds for alleging the existence of a dispute be real and not spurious, hypothetical, illusory or misconceived. It has also been observed that the dispute or offsetting claim should have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion. It must also have sufficient factual particularity to exclude the merely fanciful or futile. A rigorous curial approach is essential to the effective operation of the statutory scheme.

50    The court is not required to accept uncritically every statement in an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be, as it may not have sufficient prima facie plausibility to merit further investigation as to its truth. The court is also not required to accept uncritically a patently feeble legal argument or an assertion of facts unsupported by evidence, although this should not be read as suggesting that the applicant must formally or comprehensively evidence the basis of its dispute or offsetting claim. Except in such extreme cases, the court should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on by the applicant to set aside a statutory demand.

51    Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd involved a demand for payment of a debt alleged to be due under a contract for the supply of goods. The applicant relied on four matters, each of which had the potential to affect the respondent’s entitlement to be paid the entire amount of the debt. Barrett J held that all four matters were sufficiently plausible to raise a genuine dispute. He relevantly stated:

The [applicant] will fail in [the] task [of establishing a genuine dispute] only if … the contentions upon which it seeks to rely … are so devoid of substance that no further investigation is warranted. Once the [applicant] shows that even one issue has a sufficient degree of cogency to be arguable, a finding of genuine dispute must follow. The court does not engage in any form of balancing exercise between the strengths of competing contentions. If it sees any factor that, on rational grounds, indicates an arguable case on the part of the [applicant], it must find that a genuine dispute exists, even where any case apparently available to be advanced against the [applicant] seems stronger.

Battle of the forms

23    As will be explained further below, the crux of the dispute is whether the transactions between the parties were governed by Australian Steel’s terms and conditions or Selection Steel’s terms and conditions. Each party provided the other with its own standard terms and conditions prior to or at the time of contracting, and each is subsequently seeking to assert that its terms, and not the counterparty’s terms, were applicable to the particular transaction or transactions.

24    As explained in Goodman Fielder Consumer Foods Ltd v Cospak International Pty Ltd [2004] NSWSC 704 (at [45]-[53]), in such ‘battle of the forms’ disputes, the authorities disclose three different approaches to the question of the ascertainment of the terms which govern the contractual agreement:

(a)    the 'last shot' doctrine, which is most consistent with orthodox principles of contract, and dictates that the terms of the contract are those of the last-proffered form whose terms are not objected to by the other party (usually evidenced by performance);

(b)    the ‘higher status’ doctrine, which gives primacy to documents which are ordinarily considered to have a higher status than others – for example, a confirmation note setting out relevant terms would have a higher status than an invoice which dealt only with accounting type matters; and

(c)    the ‘synthesis’ or ‘global’ approach, under which one looks at all the documents passing between the parties and gleans from them, or from the conduct of the parties, whether they have reached agreement on all material points, even though there may be differences between the forms and conditions.

25    As was submitted by Australian Steel, there are at least five possible ways in which a battle of the forms may be resolved:

(a)    the parties are found to have entered into a contract based on Party A’s standard terms;

(b)    the parties are found to have entered into a contract based on Party B’s standard terms;

(c)    the parties are found to have entered into a contract governed by a combination of Party A’s standard terms and Party B’s standard terms;

(d)    the parties are found to have entered into a contract governed by a terms other than Party A’s standard terms and Party B’s standard terms (as in a contract implied by conduct); and

(e)    the parties have failed to enter into a contract at all.

26    The discussion by the learned authors of Cheshire & Fifoot Law of Contract (12th Aust ed LexisNexis, 2022), at [3.32], of the analysis undertaken by the Court of Appeal in Butler Machine Tool Co Ltd v Ex-Cell-O Corp (England Ltd) [1979] 1 WLR 401 is to a similar effect.

Facts established by the evidence

27    The following facts are established on the evidence that was before the Court at the review hearing.

The respective businesses of APT and Selection Steel

28    APT is a manufacturer of steel tubing and piping located in Victoria. Australian Steel has owned and conducted the APT business since in or around late 2021. Prior to that date, the APT business was conducted by Laurus Group Pty Ltd as trustee for the Laurus Group Unit Trust.

29    Selection Steel was a distributor of steel coil. So far as is relevant to this proceeding, the evidence indicates that Selection Steel acquired steel coil from BlueScope for resupply to manufacturers of steel products such as APT. Selection Steel also supplied slitting services which involved the cutting of steel coil to widths or lengths required by steel manufacturers.

30    As a result of the change in ownership of the APT business to Australian Steel, it became necessary to put in place contractual arrangements between Australian Steel and Selection Steel for the supply of steel coil.

31    The dispute between the parties concerns the terms and conditions governing their contractual relationship. It is necessary to trace through the parties’ communications concerning the contractual terms and conditions, and the orders placed for the supply of steel coil which are the subject of the statutory demand.

The October 2021 emails

32    On 1 October 2021, Mr Brandi (a consultant to Australian Steel) emailed Mr Gregory (the Managing Director of Selection Steel) with the subject line “APT & Selection”. The email was copied to John Egan (the CEO of Australian Steel). The email noted that APT was currently being supplied with steel products from BlueScope, and set out APT’s future requirements for possible supply by Selection Steel, including volumes, ordering and credit insurance. The email referred to APT’s wish to form a strategic long term partnership with Selection Steel. The email also included the following statement with respect to the terms of supply:

Terms – to adopt the same as agreed & utilised in the past – 90 days EOM from delivery to APT site.

33    The email also made reference to support from “Atradius”. Although not clearly explained in the evidence, I infer that Atradius provided credit insurance in favour of business creditors. Atradius is also referred to in later correspondence between Australian Steel and Selection Steel, but the evidence does not clarify its role in the commercial relationship between the companies.

34    Mr Gregory replied to Mr Brandi by email on 7 October 2021 and requested information concerning security that could be specifically pledged to secure Selection Steel.

35    On 26 October 2021, Marina Pirotta (the purchasing officer of Australian Steel) sent the following email to Mr Rod Gregory and Mr James Gregory. The email had the subject line “PO 21156” and was copied to Mr Egan and Mr Brandi.

James

Attached is the order based on discussions with John [Egan]. This order needs to be placed with Bluescope by close of business Wednesday 27/10

Any issues please let me know

Thanks

36    The email attached:

(a)    a purchase order numbered 21156 and dated 26 October 2021 for four different variants and quantities of hot rolled steel, with a total purchase prices of $816,205.70, including GST; and

(b)    APT’s terms & conditions of trade (the APT T&Cs).

37    The APT T&Cs relevantly contained the following clauses:

These terms and conditions of trade (Conditions) as varied from time to time by APT apply to the sale and/or supply by the Supplier of all Products to APT and apply to each Contract.

By accepting an Offer, the Supplier agrees that the Conditions apply to and form the terms on which the supply of Products pursuant to a Contract shall proceed. The Conditions apply to the exclusion of and supersede all Supplier Terms and other terms and conditions adopted or used by the Supplier from time to time unless APT otherwise agrees in writing.

Any Supplier Term that operates or purports to operate on the basis that these Conditions are negatived or rendered void or otherwise lessened in effect shall not be operative and shall not form part of the Contract.

1.     Definitions

1.1     In the Conditions, unless the context requires otherwise:

…

(d)     Contract means an agreement between the Supplier and APT for the sale and purchase of Products upon acceptance by the Supplier of an Offer.

…

(i)     Offer means an offer made by APT to the Supplier to purchase Products from the Supplier.

…

2.    Contract Commencement and Cancellation

…

2.2     All Offers made by APT to the Supplier are made, and shall be deemed to have been made:

(a)     on the terms set out in these Conditions;

…

2.3    The Supplier must confirm acceptance of an Offer from APT within 5 Business Days of receipt. Any Offer not accepted within such 5 Business Day period shall be deemed to have been rejected by the Supplier.

2.4     Immediately upon the Supplier accepting an Offer, then and unless APT agrees in writing, a Contract shall arise as between the Supplier and APT on the terms set out in the Offer and incorporating the terms of these Conditions … and the Supplier shall be deemed to have accepted and agreed to these Conditions …

2.5     In the event that the Supplier conditionally accepts an Offer on the basis of terms and conditions of supply proposed by the Supplier,

then:

(a)     APT may treat such conditional acceptance as a rejection of the Offer; or

(b)     APT may treat such conditional acceptance as an acceptance of the Offer, in which case the terms and conditions of supply proposed by the Supplier shall only operate and form part of the Contract to the extent that such terms are not inconsistent with these Conditions. To avoid any doubt, in such a case these Conditions shall prevail to the extent of any inconsistency.

2.6     The Supplier acknowledges and agrees that any terms or conditions proposed by the Supplier in response to an Offer are proposed strictly on the basis set out in clause 2.5.

…

3.     Supply and Pricing Obligations

3. 1    The Supplier must supply the Products the subject of a Contract:

(a)     by the date stipulated in the relevant Offer (or any other agreement between the parties) and in full;

…

4.    Delivery

4.1    The Products are deemed to have been Delivered to APT when:

(a)    the Products are unloaded at the place agreed for Delivery (which in the default of agreement shall mean APT's premises) during APT's business hours; or

(b)    APT, its agent or contractor collects and loads the Products at the place agreed for collection.

4.2     The Supplier must do everything necessary to enable APT to take Delivery of the Products at the time and place agreed, failing which the Supplier shall pay liquidated damages to APT in the sum of $2,000 per day (exclusive of any applicable GST) commencing on the day on which the Products were required to be Delivered under the Contract and ending on the day on which the Products are actually Delivered. APT shall not be responsible for any delay in Delivery of the Products.

…

5.     Terms of Payment

5.1    Unless otherwise agreed in writing, payment terms under a Contract are the later of one hundred and twenty (120) days from the date on which APT receives from the Supplier all documents required to be provided under clause 3.2(a), or ninety (90) days from the last day of the month in which all of the Products the subject of a Contract have been Delivered.

5.2     APT may set-off any amount owed by APT to the Supplier against any liability the Supplier has to APT. The Supplier waives any right to set off any amount that is, or may become, owing by the Supplier to APT against any amount owing to the Supplier by APT. This clause overrides any other document or agreement to the contrary.

…

6.    Default

6.1     Without prejudice to any of APT's rights, if at any time the Supplier is in breach of a Contract (including but not limited to the Conditions), APT may:

(a)    suspend payment of any amounts payable by APT to the Supplier until such time as the Supplier remedies all applicable breaches; and/or

(b)     cancel without penalty any Contract which remains unfulfilled.

6.2     APT shall be entitled to recover from the Supplier, and the Supplier indemnifies APT against, all costs, loss and damage suffered or incurred by APT (including recovery agent fees and legal costs on an indemnity basis) in connection with any breach of a Contract (including but not limited to the Conditions)

…

38    On 28 October 2021, at approximately 11.44 am, Paul Kocsis (the General Manager Finance of Selection Steel) sent the following email to David Folino of APT. The email has the subject line “Terms & Conditions” and was copied to Mr Gregory and Mr Brandi.

Hi David.

Hope all is well.

With regard to the recent order placed with Selection I would like to refer you to Aust.,Pipe & Tube supplier terms & conditions.

Given your terms are relevant to dealings with Bluescope they don't apply to our arrangement.

Can you please confirm that Selection Steel Trading terms & conditions apply for future trading and supersede the T&C of Aust.,Pipe & Tube.

Regards,

39    Mr Brandi forwarded that email to Mr Egan of APT at approximately 11.48am the same day.

40    At approximately 1.36 pm, Mr Egan replied to Mr Kocsis, copying Mr Gregory, Mr Folino and Mr Brandi, as follows (emphasis added):

Hi Paul,

Thanks for the email. I understand and confirm the T&C's of Selection Steel will be used. The information Marina sends is a standard format used for all suppliers to ensure the correct grades are noted.

Regards

41    At approximately 1.42 pm, Mr Kocsis replied to Mr Egan (copying Mr Folino, Mr Gregory and Mr Brandi) stating:

Cheers John.

Appreciate your prompt response.

42    There is a dispute between the parties concerning a further email allegedly sent by Mr Egan to Mr Kocsis at 1.48 pm on 28 October 2021 (and which was copied to Mr Folino, Mr Gregory and Mr Brandi). The parties referred to the 1.48pm email as the “last email”. For convenience, I will also use that description. The last email read as follows.

Hi Paul,

Just to clarify, your existing T & C’s apply specifically to your slitting invoices, which is your main business with APT.

Coil supply is separate and would obviously need to be subject to our T & C’s. This is in our standard format used for all suppliers and deals with correct coil grades, specs, difot and quality amongst other things.

As you are currently purchasing locally from BlueScope, you are correct that parts of our T & C’s may not be relevant such as ‘Import Coil Requirements’.

Regards

43    Mr Matta (an IT consultant for Australian Steel) deposed that he obtained the last email from Mr Egan’s mailbox. Mr Brandi deposed that he received a copy of the last email and discussed it with Mr Egan at the time. Conversely, Mr Gregory deposed that he conducted a search of Selection Steel’s server and the last email did not appear in either of his or Mr Kocsis’s email history or archives.

44    In my view, none of the evidence adduced at the hearing can be regarded as conclusive as to whether or not the last email was sent by Australian Steel and received by Selection Steel. The Court is therefore not in a position to resolve that question on this application.

The credit application

45    Mr Gregory deposed that, in the ordinary course of its business, Selection Steel provides goods and services to customers on credit. Prior to doing so, Selection Steel requires customers to complete a credit application form.

46    The evidence showed that, on 15 February 2022, Mr Egan executed Selection Steel’s “Application for Commercial Credit” on behalf of Australian Steel (in respect of the APT business). Attached to the Application was a document titled “Declaration of Terms and Conditions of Sale and Privacy Act 1988 (Cth) Authorisation”, which was also signed by Mr Egan on 15 February 2022. Section 1 of the Declaration incorporated by reference a further document titled “Terms and Conditions of Sale”, and contained the following promise:

I/We undertake to comply with the Terms and Conditions of Sale referred to in the attached sections 1 to sections 16 and all associated sub-sections and parts thereof, of which I/We have read and accepted.

47    The attached Terms and Conditions of Sale (Selection T&Cs) relevantly contain the following clauses:

1.    Contracts of Sale

1.1     These Terms and Conditions of Sale (Terms) shall apply to and form part of any contracts of sale for the supply of any or all goods, products, materials and related services (Goods) by the Purchaser from Selection Steel Trading Pty Ltd A.C.N 005 324 407(Selection) and any related body corporate of Selection within the meaning of Section 50 of the Corporations Law.

2.     Quotations, Prices, Orders and Specifications

2.1    Any quotation(s) given by Selection to the Purchaser shall constitute an offer to sell Goods to the Purchaser.

…

2.5    Any order(s) must be clearly communicated by the Purchaser to Selection quoting an order number, full description of the Goods to be purchased (including, as the case requires, lengths, weights and dimensions using conventional units of measurements) and the delivery time and address. Reference to a Selection quotation number to the Purchaser must be made if a quotation was provided by Selection.

2.6     These Terms apply to the Purchaser and Selection in respect of Goods ordered by the Purchaser and any terms and conditions set out in the Purchaser's order deviating from or are inconsistent with these Terms will not bind Selection including any statement by the Purchaser in its order that its terms and conditions shall prevail over these Terms.

…

3.     Payment

3.1    The extension of credit to the Purchaser by Selection shall be at its sole discretion and, where extended, unless otherwise advised in writing by Selection, the Purchaser must make payment in full within thirty (30) days at the end of the month in which the delivery of the Goods occurs or as otherwise specified in Selection invoice.

…

4.     Delivery

…

4.7     Selection is not liable for any claims for non-fulfillment or late delivery of Goods or of any loss or damage (including consequential loss or damage suffered by the Purchaser arising whether directly or indirectly out of delay in delivery or failure to deliver due to circumstances beyond reasonable control of Selection and the Purchaser shall accept and pay for the Goods notwithstanding late delivery.

…

4.9    Unless otherwise agreed by the Purchaser and Selection, Selection shall be entitled to deliver the Goods in one or more lots. Where delivery of the Goods is effected by way of part delivery, Selection shall be entitled to invoice the Purchaser for pro-rata progress in respect thereof.

4.10     Where the Purchaser's order requires the Goods to be delivered by instalments then a separate contract arises on the subject to the provisions of these Terms in relation to each instalment. If Selection fails to deliver an Instalment of Goods on time, or at all, the Purchaser must not and is not entitled to terminate any other contract in force between Selection and the Purchaser for the sale or supply of Goods.

…

15.     Miscellaneous

15.1     Theses Terms set out the entire agreement between the parties in relation to their subject matter.

15.2     Selection reserves the right to review and amend these Terms from time to time. …

48    It can be seen that the Selection T&Cs differ in important respects to the APT T&Cs. The following differences are significant:

(a)    Clause 3.1 of the APT T&Cs requires delivery of goods in full whereas cl 4.9 of the Selection T&Cs permits the supply of goods in instalments and the issuing of invoices on a pro-rata basis.

(b)    Clause 4.2 of the APT T&Cs provides for the payment of liquidated damages to APT in the sum of $2,000 per day (exclusive of any applicable GST) for late delivery of goods. In contrast, cl 4.7 of the Selection T&Cs stipulates that Selection is not liable for any claims for non-fulfillment or late delivery of goods.

(c)    Clause 5.1 of the APT T&Cs requires payment for goods (where the goods are sourced domestically and not imported) within 90 days from the last day of the month in which all of the goods the subject of a contract have been delivered. In contrast, cl 3.1 of the Selection T&Cs requires payment within 30 days at the end of the month in which the delivery of the goods occurs or as otherwise specified in the applicable invoice.

(d)    Clause 6.1 of the APT T&Cs allows APT, where there is a breach of contract by the supplier, to suspend payment of all amounts payable by APT to the supplier until the supplier remedies the breach. In contrast, cl 4.10 of the Selection T&Cs stipulates that where delivery is in instalments, a separate contract arises for each instalment, and if Selection fails to deliver an instalment in time, the purchaser is not permitted to terminate any contract in force between the parties, including for other instalments.

49    The Application for Commercial Credit signed by Mr Egan on behalf of Australian Steel was only an application for credit and, without more, could not itself constitute the terms of a trading agreement between Australian Steel and Selection Steel. Whether a trading agreement was formed between the parties on the basis of the Selection T&Cs depended upon the subsequent communications between, or conduct of, the parties.

50    Mr Gregory deposed (in a conclusory form) that Selection Steel approved APT’s account application and supplied goods and services on credit pursuant to that “agreement”. The evidence given by Mr Gregory in support of that conclusory statement was somewhat piecemeal and was not well explained.

51    Mr Gregory deposed (again in a conclusory form) that, following Australian Steel’s acquisition of the APT business from Laurus Group Pty Ltd:

The parties [Australian Steel and Selection Steel] undertook a deliberate and clear reorganisation of their contractual arrangements, ensuring the ASM's execution of the credit application. This process also included communications with Atradius Credito y Caucion S.A de Seghuros y Reaseguros (Atradius) and ASM concerning ASM's credit limits prior to supply.

52    The nature of the arrangements with Atradius were not explained by Mr Gregory. The evidence suggests that Selection Steel’s offer of credit to Australian Steel was to be dependent on the credit being insured by Atradius.

53    On 1 March 2022, Mr Gregory sent the following email to Mr Egan, which had the subject line “APT – Laurus new orders and cash flow – amended” and was copied to Mr Kocsis and Mr Brandi:

John
Trust you are well.
Rang but missed you.

As agreed we have placed new order on BSL for 970T which now brings total to 2513T - thanks for support.

We were due payment of $679k yesterday that has not yet arrived??? Please confirm this payment asap.

To operate within the agreed limit of $1m - please see our attached spreadsheet cashflow with assumed draw down and payments.

•    A - Based on 90 day terms the steel will take over 12 months - which is not acceptable to both of us.

•    B - Or to deliver over 5 months (500t pcm) the attached payment will be needed within 30 days.

Also the new order (as previous) will be subject to the Selection Steel T&Cs.

Please confirm - happy to catch up any time.

54    The email suggests that Selection Steel had offered Australian Steel credit of $1 million, although it is not clear from the email whether terms were still being negotiated. The email stated that the Selection T&Cs would apply to the Australian Steel orders being discussed.

55    Mr Gregory deposed that:

Between 4 March 2022 to 9 March 2022 SST corresponded with Mr Folino, Mr Egan and Mr Brandi of APT in relation to finalising ASM's credit limit and coverage with Atradius to facilitate the provision of goods and services …

56    On 4 March 2022, Mr Kocsis sent the following email to Mr Folino, copied to Mr Egan, with the subject line “Financials to ATradius”.

Hi David.

I chased up ATradius regarding getting your limit in place.

They advised they still haven't received financial information.

Sorry John but I though [sic] you confirmed that the info had been sent.

Would you mind following up or advising who you sent the info to so I can redirect our brokers.

Regards,

57    On 9 March 2022 at approximately 2.24 pm, Mr Kocsis sent an email to Mr Egan and Mr Folino, copied to Mr Brandi, which read:

Hi John.

Atradius have advised that no information has been received at this stage.

We have scheduled processing of your stock very soon so this may be delayed if we cannot get the info to them for assessment soon.

Regards,

58    A short time later, at approximately 2.30 pm, Mr Brandi sent the following reply:

Gents, in my court.

I'm popular at the moment - a few meetings to go & then I'll close out today.

Cheers

59    Mr Gregory deposed (again in a conclusory form) that:

On or around 15 March 2022, Atradius approved a $1million credit limit and SST began releasing the orders for ASM pursuant to the agreement and in accordance with SST's terms and conditions.

60    Apart from the statement concerning the Selection T&Cs, Mr Gregory’s evidence in the preceding paragraph was confirmed by an email from Mr Kocsis to Messrs Egan, Folino, Brandi and Gregory on 15 March 2022 stating:

Confirming that the $1m limit has now been approved and allocated to the new account.

Processing of the current order is continuing.

61    A short time later, Mr Egan replied asking whether Selection Steel would be issuing new invoices, and Mr Kocsis replied stating that he would provide invoices to the account.

Supplies the subject of the statutory demand

62    The claimed debt in the amount of $1,116,010.32 which is the subject of the statutory demand concerns the price payable for the supply of steel products by Selection Steel to Australian Steel in partial fulfilment of four separate orders for steel placed by Australian Steel and accepted by Selection Steel, and associated slitting services. Each of the four orders was placed by way of email from Ms Pirotta, the purchasing officer for APT, addressed to Ms O’Beirne, the National Inventory Controller of Selection Steel. Each email from Ms Pirotta attached a purchase order detailing the specifications of the order and, relevantly, also attached the APT T&Cs.

63    The first of the relevant purchase orders was numbered 23662 and dated 20 April 2022. It was sent by email to Ms O’Beirne on 26 April 2022 together with the APT T&Cs. The order was for delivery in “W22-W26” which I infer is in the period of weeks 22 to 26 of the calendar year 2022 (broadly, the month of June 2022). Not having received a response, Ms Pirotta sent a follow up email to Ms O’Beirne on 29 April 2022 at 10.26 am with the subject line “hr order 23662”.

Amy

Please could you advise if Selection have accepted the above order number 23662 and it has been placed on Bluescope

Thanks

64    A short time later at 10.33 am, Ms O’Beirne replied as follows:

Hi Marina,

Rod was still working through the timing of the order, but it has been placed and accepted by BSL for June delivery.

Regards,

65    The second of the relevant purchase orders was numbered 23831 and dated 26 May 2022. It was sent by email to Ms O’Beirne on 30 May 2022 together with the APT T&C’s. The order was for delivery in “W27-W30” which I infer is in the period of weeks 27 to 30 of the calendar year 2022 (broadly, the month of July 2022).

66    The third of the relevant purchase orders was numbered 26777 and dated 24 May 2023. It was sent by email to Ms O’Beirne on 25 May 2023 together with the APT T&C’s. The order was for delivery in “Weeks 31-35” which I infer is in the period of weeks 31 to 35 of the calendar year 2023 (broadly, the month of August 2023).

67    The fourth of the relevant purchase orders was numbered 26795 and dated 2 June 2023. It was sent by email to Ms O’Beirne on 2 June 2023 together with the APT T&C’s. The order was for delivery in “Weeks 31-35” which I infer is in the period of weeks 31 to 35 of the calendar year 2023 (broadly, the month of August 2023).

68    There was no response from Selection Steel suggesting that the orders would not be accepted on the basis of the APT T&Cs, or otherwise asserting that the orders were subject to different terms and conditions (and specifically the Selection T&Cs).

69    Selection Steel subsequently began supplying the products the subject of the purchase orders. It is not in dispute between the parties that this supply occurred in instalments and that Selection Steel did not deliver the full amounts specified in purchase orders 23831, 26777 and 26795. In respect of those purchase orders, Ms Spiteri deposed that:

(a)    purchase order 23831 was for a total of 1,003 tonnes of steel (to be delivered during weeks 27 to 30 of 2022), but Selection Steel failed to deliver 211.64 tonnes of the steel that had been ordered;

(b)    purchase order 26777 was for a total of 500 tonnes of steel (to be delivered during weeks 31 to 35 of 2023), but Selection Steel failed to deliver 228.105 tonnes of the steel that had been ordered;

(c)    purchase order 26795 was for a total of 614 tonnes of steel to be delivered during weeks 31 to 35 of 2023, but Selection Steel failed to deliver 310.74 tonnes of the steel that had been ordered.

70    Between 11 September 2023 and 5 October 2023, Selection Steel issued 18 invoices, each of which related to quantities of steel that had been delivered by Selection in partial fulfilment of the purchase orders detailed above (in other words, by way of instalments). Each of the invoices referenced the purchase order under which delivery had been made, stated the delivery date and identified the quantities delivered and the purchase price. Each invoice included the following notations:

TERMS: 90 DAYS

TERMS AND CONDITIONS

(a)     Until full payment has been made for the goods and full payment of any other sums whatsover [sic] which are or may become outstanding from the buyer to Selection Steel Trading Pty Ltd (‘the company’) the property in the goods shall not pass to the buyer.

(b)     Until payment in full is made, the buyer is to store the goods separately from its own goods.

(c)     All goods (after delivery) are at the buyers risk and must be paid for notwithstanding the destruction thereof or any damage however caused.

(d)     The buyer shall deliver to the seller or otherwise deal with the goods as directed by the seller upon request until property in the goods has passed to the buyer.

71    As at 31 March 2024, the amounts owing under the 18 invoices remained outstanding, being the amount claimed under the statutory demand.

72    There is no dispute between the parties that the invoices reflected the prices applicable to steel coil delivered to Australian Steel. As is explained further below, the dispute concerns the question whether the amounts stated in the invoices were due and payable by Australian Steel.

Subsequent negotiations between the parties concerning payment

73    Between 28 March 2024 and 29 April 2024, Mr Brandi endeavoured to negotiate payment arrangements and the provision of security to Selection Steel on behalf of APT in respect of the invoiced amounts. It is unnecessary to set out those communications between the parties in detail. It is sufficient to record that, in an email chain between Mr Brandi and Mr Gregory (copying Mr Egan):

(a)    on 2 April 2024, Mr Brandi stated that he was “working through a payment plan …over the next 3 months” and provided a list of real property assets which might be used to secure the invoiced amounts;

(b)    on 18 April 2024, Mr Brandi stated that APT was selling down assets and seeking a refinancing and that it was imperative for the supply of steel coil to APT to continue, and proposed payment of the “debt” in 12 weekly instalments;

(c)    on 19 April 2024, Mr Gregory stated that Selection Steel would accept the weekly payment plan in respect of the outstanding amount owing, but would only supply more steel coil on a cash against invoice basis until the debt was cleared;

(d)    later on 19 April 2024, Mr Brandi stated:

Yes lets move forward with the deed.

We also need to work out a solution conjunctly with the Coil. I may not have articulated that well in my email and John may be clearer 'speaking steel language better than I' but what I meant was a quasi-consignment arrangement whereby we record that this is your coil, housed at APT, slit. And against backorders we (same day) roll & invoice out to a customer, upload into debtors & draw down cash - and pay you for this exact coil usage daily COD.

We would keep a detailed inventory list until its all done, and separate clear area under roof at APT to house your coil.

This way you get your $ ASAP and we make clients waiting happy & we can take the margin against debtors to further enhance the payment arrangement below.

The statutory demand

74    No agreement to pay the invoiced amounts was reached between Selection Steel and Australian Steel. The statutory demand was issued on 5 June 2024. It was accompanied by an affidavit of debt sworn on the same date by Mr Gregory. The Schedule to the statutory demand describes the alleged debt as “Money due and owing by the company to the creditor for goods and services provided pursuant to a credit agreement dated 15 February 2022 as particularised in the statement attached”. There was no challenge to the form of the statutory demand (although in her affidavit of 27 June 2024, Ms Spiteri deposed that a statement was not attached to the statutory demand that was received by Australian Steel).

75    Australian Steel filed an originating process seeking orders to set aside the statutory demand on 27 June 2024. The originating process was subsequently amended on 15 July 2024. In her affidavit dated 27 June 2024, Ms Spiteri deposed that Australian Steel:

(a)    denies that it is indebted to Selection Steel for the debt alleged in the statutory demand;

(b)    denies that any moneys are presently due and payable by it to Selection Steel; and

(c)    has offsetting claims against Selection Steel that exceed the alleged debt.

76    Ms Spiteri’s affidavit deposed to the process by which Australian Steel placed orders for steel coil with Selection Steel on the basis of the APT T&Cs. Ms Spiteri claimed that Selection Steel breached the APT T&Cs because:

(a)    it delivered the steel coil in progressive tranches; and

(b)    as at the date of the affidavit, failed to deliver the full quantities required under the purchase orders.

77    Ms Spiteri further deposed that:

(a)    by reason of the above breaches, Australian Steel has suffered substantial loss and damage that will exceed the value of the alleged debt;

(b)    Australian Steel has claims against Selection Steel for liquidated damages that exceed the value of the alleged debt; and

(c)    pursuant to cl 6.1 of the APT T&Cs, Australian Steel is entitled to suspend any payment obligation that it has to Selection Steel until Selection Steel remedies the above breaches.

Australian Steel’s submissions

78    Australian Steel submitted that the statutory demand should be set aside for either of the following reasons.

79    Australian Steel’s primary argument is that, pursuant to s 459H(1)(a) of the Act, there is a genuine dispute between the parties as to whether the debt to which the statutory demand relates is payable. Australian Steel submitted that that dispute arises from the ‘battle of the forms’ – the disagreement between the parties as to whether it is the APT T&Cs or the Selection T&Cs which govern the relevant transactions. Australian Steel argues that it is the APT T&Cs which are applicable and that:

(a)    Selection Steel’s incomplete delivery, and delivery by way of instalments, is a breach of cl 3.1 of the APT T&Cs; and

(b)    under cl 6.1 of the APT T&Cs, Australian Steel is entitled to suspend payment of the amounts the subject of the statutory demand until Selection Steel supplies the whole of the steel.

80    Australian Steel submitted that there is uncertainty as to the resolution of that question, which will in part depend on which of the ‘last shot’, ‘higher status’ or ‘synthesis’ approach is ultimately applied to resolve the question. Each approach is arguable in the circumstances, but Australian Steel submitted that the ‘last shot’ and ‘synthesis’ approaches will more likely lead to a finding that the APT T&Cs are applicable. Australian Steel submitted that it is not appropriate for such questions to be determined on an application to set aside a statutory demand.

81    Australian Steel further submitted that, in accordance with s 459H(1)(b) of the Act, it has an offsetting claim against Selection Steel as it is entitled to liquidated damages that will exceed the value of the alleged debt. Australian Steel’s claim to liquidated damages proceeds on the basis that the APT T&Cs are applicable. Under cl 4.2 of the APT T&Cs, Australian Steel has a claim for liquidated damages in respect of each of the incompletely performed purchase order contracts at $2,000 per day, until such time as Selection Steel supplies the whole of the steel under the purchase orders. Australian Steel did not put on evidence regarding the precise quantification of the liquidated damages, but submitted that it was not required to do so for the purposes of the present application. Australian Steel submitted that all that was required for the present application is that the offsetting claim be stated and the basis for it articulated. In that regard, the evidence shows that:

(a)    purchase order 23831 was for delivery in July 2022, but delivery was incomplete; and

(b)    purchase orders 26777 and 26795 were for delivery in August 2023, but delivery on each was incomplete.

82    If liquidated damages were payable under the APT T&Cs for each of the above purchase orders in the amount of $2,000 per day as submitted by Australian Steel, it can be readily concluded that the amount of the liquidated damages would exceed the amount of the debt claimed as at the date of the statutory demand on 5 June 2024.

Selection Steel’s submissions

83    Selection Steel submitted that there is no genuine dispute as to the existence or quantum of the debt, as it is clear that the Selection T&Cs were applicable to the relevant transactions.

84    Selection Steel submitted that the ‘battle of the forms’ argument on which Australian Steel now seeks to rely was not raised as a basis for setting aside the statutory demand in the affidavits filed in support of the application to set aside the statutory demand, and that it is not open for Australian Steel to rely on such an argument now. Selection Steel also referred to the evidence of the negotiations that occurred between the parties prior to the statutory demand being issued. Selection Steel argued that the emails sent by Mr Brandi between 28 March and 29 April 2024 were clearly directed to the time frame in which the debt could be paid down, any security that Australian Steel could give to Selection Steel in respect of the payment of the debt, and the arrangements for future supply of steel by Selection Steel. Selection Steel submitted that the emails contain an express acknowledgment of the debt as owing, contain no assertion that the amounts were not payable, nor any assertion that Australian Steel had suspended payment pursuant to contractual rights. Selection Steel submitted that the fact that these arguments, upon which Australian Steel now seeks to rely, were not raised contemporaneously, speaks to a lack of genuineness in Australian Steel’s asserted belief that the debt is not payable.

85    In response to Australian Steel’s argument concerning an offsetting claim, Selection Steel submitted that Australian Steel has no genuine offsetting claim against Selection Steel, and nor has Australian Steel made any attempt to quantify such a claim for the purposes of s 459H(2), in circumstances where it is required to do so.

Consideration

86    As stated earlier, on an application to set aside a statutory demand, it is neither necessary nor appropriate for the Court to engage in an in-depth examination of the merits of the alleged dispute. The Court is required to determine whether the dispute is genuine, in the sense that it truly exists in fact and that the grounds for alleging the existence of a dispute are real and not spurious, hypothetical, illusory or misconceived: Spencer Constructions Pty Ltd v G&M Aldridge Pty Ltd (1997) 76 FCR 452 at 464. The Court does not engage in a balancing exercise between the strengths of competing contentions. If it sees any factor that, on rational grounds, indicates an arguable case on the part of the applicant to set aside the demand, it must find that a genuine dispute exists: Panel Tech Industries (Australia) Pty Ltd v Australian Skyreach Equipment Pty Ltd (No 2) [2003] NSWSC 896 at [18].

87    In my view, Australian Steel’s contentions that:

(a)    there is a genuine dispute between the parties as to whether the debt to which the statutory demand relates is payable, within the meaning of s 459H(1)(a) of the Act; and

(b)    it has an offsetting claim, within the meaning of s 459H(1)(b) of the Act,

should be accepted.

88    The determination of applicable terms and conditions, where there is a ‘battle of the forms’, is notoriously difficult and requires a complete examination of all communications between the parties. The documentary record outlined earlier in these reasons indicates that each of the parties have an arguable case that their terms and conditions applied. At least three questions arise for resolution. The first is the status of the “last email” sent by Mr Egan to Mr Kocsis at 1.48 pm on 28 October 2021 which stated that the APT T&Cs were to apply to Australian Steel’s purchases from Selection Steel. It is not possible to determine on this application whether that email was received by Selection Steel. The second question concerns Australian Steel’s application for credit from Selection Steel and the incorporation of the Selection T&Cs into that document. As noted earlier, the application was not itself a contract, and a question arises whether and to what extent the application became a contract between the parties and overrode the “last email”. The third question concerns the purchase orders placed by Australian Steel which attached the APT T&Cs. Selection Steel accepted the purchase orders and did not object to the APT T&Cs. The significance of each of those events, and the ultimate determination of the terms and conditions governing the trading relationship between Australian Steel and Selection Steel, involve complex questions of fact and law. It is not appropriate to attempt to resolve the dispute as to the applicable terms and conditions in an application of this kind.

89    As submitted by Australian Steel, if the APT T&Cs applied to the steel coil purchases made by Australian Steel, it is reasonably arguable that Selection Steel’s incomplete delivery, and delivery by way of instalments, is a breach of cl 3.1(a) of those terms and conditions. It is also reasonably arguable that, under cl 6.1 of the APT T&Cs, Australian Steel is entitled to suspend payment of the amounts the subject of Selection Steel’s invoices until Selection Steel supplies the whole of the steel ordered by Australian Steel. It is also reasonably arguable that, under cl 4.1 of the APT T&Cs, Selection Steel is liable to pay liquidated damages to APT for late delivery of the steel coil ordered by Australian Steel in the amount of $2,000 per day for each of the three purchase orders where supply was not fulfilled. As at the date of the statutory demand (5 June 2024), the amount of liquidated damages would exceed the amount of the debt claimed. Again, it is not appropriate that those contractual questions be determined on an application of this kind.

90    It can be accepted that the conduct of Australian Steel prior to the issue of the statutory demand calls into the question the genuineness of the dispute. As was submitted by Selection Steel, the email correspondence between 28 March 2024 and 29 April 2024 does not contain any statement by Australian Steel that it disputed the amount of the debt claimed by Selection Steel, nor that Australian Steel had suspended payment of the invoices pursuant to its contractual rights under the APT T&Cs. However, Australian Steel’s conduct in that period cannot be regarded as determinative of the contractual issues in dispute between the parties. A party will not necessarily forfeit their contractual rights because they do not assert them at the earliest opportunity. It may be arguable that, by its conduct, Australian Steel is estopped from asserting, or has waived, its contractual rights. But any such contentions, if pressed by Selection Steel, cannot be determined on this application.

91    I do not accept Selection Steel’s submission that Australian Steel failed to raise its contractual arguments in the affidavits filed in support of the application to set aside the statutory demand. Ms Spiteri’s affidavit of 27 June 2024 explicitly relies on the APT T&Cs in support of Australian Steel’s stated position denying that it is indebted to Selection Steel, denying that any moneys are presently due and payable, and asserting that it has an offsetting claim against Selection Steel that exceeds the alleged debt. It is apparent that, at the time Ms Spiteri made her affidavit, Australian Steel alleged that it was the APT T&Cs that governed the relevant transactions.

92    I am therefore satisfied that Australian Steel has discharged the onus of establishing that there is a genuine dispute as to the existence of the debt the subject of the statutory demand, and that Australian Steel has an offsetting claim in an amount that exceeds the amount of the claimed debt. The dispute and offsetting claim raised by Australian Steel are real, plausible and supported by evidence rather than mere assertion. It follows that, pursuant to s 459H(3), the Court must set aside the statutory demand.

Conclusion

93    In conclusion, an order should be made setting aside Selection Steel’s statutory demand dated 5 June 2024. It follows that the extension of time granted by order 1 of the orders made on 23 September 2024 ceases to have any effect.

94    Section 459N of the Act provides that where, on an application under s 459G, the Court sets aside a statutory demand, it may order the person who served the demand to pay the company’s costs in relation to the application. Subject to one matter, I consider that it is just that Selection Steel pay Australian Steel’s costs of the application to set aside the statutory demand. The matter concerns the late filing of evidence by Australian Steel, addressed earlier in these reasons. The late filing of evidence caused Selection Steel to prepare a lengthy responsive affidavit of Mr Gregory, most of which was rendered unnecessary (and ultimately not read) because I ruled that it would be prejudicial to allow Australian Steel to rely on significant parts of its late-filed affidavits. Having regard to the amount of evidence that was rendered unnecessary, and the legal work that was therefore wasted, I consider it appropriate to reduce the costs payable to Australian Steel by 30%. Accordingly, I will order that Selection Steel pay 70% of Australian Steel’s costs.

Associate:

Dated:    29 April 2025