Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Geelong Grove Retirement Village Pty Ltd v Harcom Pty Ltd [1999] FCA 485 CORPORATIONS – statutory demand – application to set aside – whether "genuine dispute" as to existence or amount of debt – whether off-setting claim – whether "some other reason" why demand should be set aside. Corporations Law ss 459E(1)(b), 459E(2)(e), 459G, 459H(1)(a), 459H(1)(b), 459H(5), 459J(1)(b)
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452 at 464 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 787 John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd. (1994) 14 ACSR 250 at 252-253 Scanhill Pty Ltd v Century 21 Australasia Pty Limited (1993) 47 FCR 451 at 467 GEELONG GROVE RETIREMENT VILLAGE PTY LTD v HARCOM PTY LTD (ACN 004 790 167)
VG 3317 of 1998
WEINBERG J
MELBOURNE
23 APRIL 1999
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VG 3317 OF 1998
BETWEEN: GEELONG GROVE RETIREMENT VILLAGE PTY LTD
Applicant
AND: HARCOM PTY LTD (ACN 004 790 167)
Respondent
JUDGE: WEINBERG J
DATE OF ORDER: 23 APRIL 1999
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT: 1. The statutory demand of the respondent dated 27 August 1998 be set aside. 2. The respondent pay the applicant's costs of this application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VG 3317 OF 1998
BETWEEN: GEELONG GROVE RETIREMENT VILLAGE PTY LTD
Applicant
AND: HARCOM PTY LTD (ACN 004 790 167)
Respondent
JUDGE: WEINBERG J
DATE: 23 APRIL 1999
PLACE: MELBOURNE
REASONS FOR JUDGMENT 1 This is an application pursuant to s 459G of the Corporations Law seeking an order that a statutory demand of the respondent dated 27 August 1998 be set aside. 2 Section 459G provides as follows: "459G (1) A company may apply to the Court for an order setting aside a statutory demand served on the company. (2) An application may only be made within 21 days after the demand is so served. (3) An application is made in accordance with this section only if, within those 21 days: (a) an affidavit supporting the application is filed with the Court; and (b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company." 3 There is before the Court an affidavit sworn on 15 September 1998 by Stewart James Gull, a director of the applicant company. Mr Gull deposes that on 27 August 1998 the respondent served on the applicant the following statutory demand: "Paragraph 459E(2)(e) FORM 509H Corporations Law CREDITOR'S STATUTORY DEMAND FOR PAYMENT OF DEBT To: Geelong Grove Retirement Village Pty. Ltd. ACN 075 604 652 42 Lydiard Street South Ballarat, Victoria, 3350 1. The company owes Harcom Pty. Ltd. ACN 004 790 167 of Forest Road Corio Victoria 3214 ("the creditor") the amount of $100,241.00 being the total of the amounts of the debts described in the Schedule. 2. Attached is the Affidavit of Graham John Hart dated 27 August 1998 verifying that the amount is due and payable by the company. 3. The creditor requires the company, within 21 days after service on the company of this demand:- (a) To pay to the creditor the total of the amounts of the debts; or (b) To secure or compound for the total of the amounts of the debts, to the creditor's reasonable satisfaction., 4. The creditor may rely on a failure to comply with this demand within the period for compliance set out in sub-section 459F(2) as grounds for an application to a court having jurisdiction under the Corporations Law for the winding up of the company. 5. Section 459G of the Corporations Law provides that a company served with a demand may apply to a court having jurisdiction under the Corporations Law for an order setting the demand aside. An application must be made within 21 days after the demand is served and, within the same period:- (a) An affidavit supporting the application must be filed with the court; and (b) A copy of the application and copy of the affidavit must be served on the person who served the demand. 6. The address of the creditor for service of copies of any application and affidavit is Coulter Bourke Pty. Ltd., Legal Practitioners, of 77 Yarra Street Geelong Victoria 3220. SCHEDULE
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