Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Rosecharm Pty Ltd v Atanaskovic Hartnell [2006] FCA 329 ROSECHARM PTY LTD v ATANASKOVIC HARTNELL NSD2180 OF 2005 EMMETT J 17 MARCH 2006 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD2180 OF 2005
BETWEEN: ROSECHARM PTY LIMITED
PLAINTIFF
AND: ATANASKOVIC HARTNELL
DEFENDANT
JUDGE: EMMETT J
DATE OF ORDER: 17 MARCH 2006
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD2180 OF 2005
BETWEEN: ROSECHARM PTY LIMITED
PLAINTIFF
AND: ATANASKOVIC HARTNELL
DEFENDANT
JUDGE: EMMETT J
DATE: 17 MARCH 2006
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 The plaintiff seeks an order under s 459G of the Corporations Act 2001 (Cth) ('the Act') that a statutory demand served on it by the defendant be set aside. 2 Section 459G of the Act provides as follows: '(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 the 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 Section 459J(1) of the Act provides as follows: 'On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:
(a) because of a defect in the demand, substantial injustice will be caused unless the demand is set aside, or (b) there is some other reason why the demand should be set aside.' 4 The originating process filed on 11 November 2005 contains a claim by the plaintiff that: · a genuine dispute exists between the plaintiff and the defendant about the existence of a debt; · a genuine dispute exists between the parties about the amount of the debt, if any; and · the plaintiff and another company have a genuine claim for loss and damage against the defendant arising from negligence and delay on their part. 5 The only affidavit filed in support of the application was an affidavit by Mr Archer Field sworn on 11 November 2005. He relevantly says as follows: '1. I am the director of [the plaintiff].
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