Reported Decision : [2001] NSWSC 909 [2001] ACL Rep 120 NSW 138 New South Wales Supreme Court CITATION : Bendent v Don Fox [2001] NSWSC 909 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4460/01 HEARING DATE(S) : 16/10/01 JUDGMENT DATE : 16 October 2001 PARTIES : Bendent Pty Limited v Don Fox Planning Pty Limited JUDGMENT OF : Master Macready at 1 COUNSEL : Mr R. Tregenza for plaintiff Mr J. Armfield for defendant Carbone & Assocates for plaintiff DX 25117 Fairfield SOLICITORS : Murrays Lawyers for defendant DX 8485 Castle Hill CATCHWORDS : Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Act. Demand set aside. No matter of principle. DECISION : Paragraph 9 - 1- 1 MASTER: This is an application to set aside a statutory demand. The statutory demand was served by letter posted on 14 August. In the ordinary course of post the evidence before me shows that it would be delivered at least by the 16th or under s 160 of the Evidence Act it would be four days after having been posted. 2 The evidence shows that the usual course of post was two days which would mean that the time for filing the application and the affidavit in support expired on 6 September. Both were filed on the 7th. There is also a problem in relation to service in that the actual summons that was filed and the affidavit were in fact served on 14 September, although I faxed copy of what was proposed to be filed was sent on the 6th. That was not sufficient as the section requires both filing and subsequent service. 3 There is another reason why the proceedings should be dismissed. The proceedings concern a debt as a result of a judgment in the Local Court. The history demonstrates that the plaintiff was aware of the proceedings and sought an adjournment application in the Local Court which it lost, and thereafter it proceeded ex parte. 4 The matter proceeded ex parte and it was sought to set aside the order made before another magistrate and that application was unsuccessful. It then sought to file an application for a review of the decision of the Local Court in the Supreme Court and that application was struck out through the non-appearance of the plaintiff. 5 There is an application for leave to reinstate that application that comes on before the Court tomorrow. I think in those circumstances I would not grant an adjournment because of the lack of explanation before me as to those failures. 6 The relevance of that is that while there is still a judgment which has not been set aside or indeed no stay granted there is no genuine dispute. 7 The principles were referred to in the case of Barclays Australia (Finance) Pty Ltd v Gaffikin Marine Pty Ltd 21 ACSR 235. At p 238 the Chief Judge in Equity McLelland J had the following to say: 'The assertion that there is a genuine dispute about the existence of the debt is in turn based on two grounds. The first relies on the existence of the undetermined appeal, in which orders are sought by Dan (inter alia) that the proceedings brought by Gaffikin Marine be dismissed and that Gaffikin Marine pay the costs of those proceedings. If the appeal succeeds, it is possible that the costs orders of 16 July 1995 (including the order against Barclays, although it is not an appellant) may be set aside. The answer to this submission is that the possibility that a presently existing and enforceable debt may be set aside in the future pursuant to a subsisting appeal does not give rise to a genuine dispute about the existence of the debt within the meaning of s 459H; see eg Hoare Bros Pty Ltd v DCT (1995) 16 ACSR 213; 13 ASCLC 358; Wilden Pty Ltd v Greenco Pty Ltd (1995) 13 ACLC 1039. The position would of course be different if there were a stay of proceedings under, or stay of execution of, the costs order against Barclays, but there is not, and in the absence of any such stay and notwithstanding the pendency of the appeal, the costs orders of 16 July 1995 against Barclays (together with the judgment of 16 May 1996), unless and until set aside on appeal, operate as res judicata determining the matter of Barclays' costs liability to Gaffikin Marine; see Spencer-Bower & Turner Res Judicata 2nd ed p 144; Lahoud v B & M Quality Constructions (22 July 1994, SC (NSW) McClelland CJ in Eq, unreported).'" 8 In the circumstances there is no genuine dispute and accordingly I dismiss the summons with costs. 9 There has been an application for indemnity costs in circumstances where some of the affidavits were only served this morning. I will not make an order for indemnity costs. oOo Last Modified: 12/06/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.