Dubur Nominees Pty Ltd v Sperl, Erwin (t/as E Sperl & Co) [1998] FCA 490

FEDERAL COURT OF AUSTRALIA

CORPORATIONS LAW - application for review of decision of Registrar to refuse to set aside statutory demand - s 459H Corporations Law - whether "genuine dispute" between parties about the existence or amount of debt.

Corporations Law: s 459G, s 459H(1)(a), s 459H(4)

Spencer Constructions Pty Ltd v G & J Aldridge Pty Ltd (1997) 147 ALR 444 - applied DUBUR NOMINEES PTY LTD v ERWIN SPERL (T/AS E SPERL & CO) VG 3334 of 1997 GOLDBERG J MELBOURNE 8 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 3334 of 1997

BETWEEN: DUBUR NOMINEES PTY LTD

(ACN 005 819 152)

Applicant

AND: ERWIN SPERL (T/as E SPERL & CO)

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 8 MAY 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Pursuant to s 459H(4) of the Corporations Law, the statutory demand dated 17 October 1997 served on the applicant be varied from the amount of $14,900 to the amount of $11,700 and declares that the demand to have had effect, as so varied, as from the date upon which the demand was served on the applicant. 2. The application to set aside the demand otherwise be dismissed. 3. The applicant pay the respondent's taxed costs of and incidental to the application. Note: Settlement and entry of orders is dealt with in O 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 3334 of 1997

BETWEEN: DUBUR NOMINEES PTY LTD

(ACN 005 819 152)

Applicant

AND: ERWIN SPERL (T/as E SPERL & CO)

Respondent

JUDGE: GOLDBERG J

DATE: 8 MAY 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT Introduction and background The applicant applies to the Court pursuant to s 459G of the Corporations Law to set aside a statutory demand served on it and dated 17 October 1997 on the ground that there is a genuine dispute between the applicant and the respondent about the existence or amount of the debt to which the demand relates. The debt claimed in the statutory demand is $14,900 being the total of the amounts of the debts described in the schedule to the demand. The schedule is in the following form: Balance of November 1993 with respect to preparation of income tax returns for the year ended 30 June 1992, statutory $3,800.00 accounts, minutes of meetings and ASC annual returns 1,900.00 less cheque paid 12 November 1993 1,900.00 BALANCE Invoice dated 23 January 1995 with respect to preparation of income tax returns for the year ended 30 June 1993, statutory 3,800.00 accounts, minutes of meetings and ASC annual returns 200.00 less cash paid 25 September 1995 200.00 less cash paid 14 July 1995 5,300.00 BALANCE Account dated 17 January 1996 with respect to preparation of income tax returns for the year ended 30 June 1994, statutory 3,800.00 accounts, minutes of meetings and ASC annual returns 9,100.00 BALANCE Account dated 31 July 1996 with respect to preparation of income tax returns for the year ended 30 June 1995, statutory 3,800.00 accounts, minutes of meetings and ASC annual returns 12,900.00 BALANCE Account dated 10 October 1997 for completing general ledger, reconcile bank statements and ASC 1996 annual return 2,000.00 BALANCE DUE $14,900.00 _________