SURFTV v BELMONTE [2002] NSWSC 252

New South Wales Supreme Court

CITATION : SURFTV v BELMONTE [2002] NSWSC 252 CURRENT JURISDICTION: 4953/2001 FILE NUMBER(S) : SC 4953/2001 HEARING DATE(S) : 26/03/2002 JUDGMENT DATE : 28 March 2002

PARTIES : SURFTV PTY LIMITED v TONY BELMONTE JUDGMENT OF : Master Macready at 1

COUNSEL : Mr Peter McCook in person for the plaintiff Mr Dubler for the defendant SOLICITORS : Sally Nash & Co for defendant

CATCHWORDS : Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Law. Demand set aside. No question of principle. DECISION : Paragraph 16

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

THURSDAY 28 MARCH 2002

4953/2001 SURFTV PTY LTD v TONY BELMONTE

JUDGMENT

1 MASTER: This is an application to set aside a demand under section 459G of the Corporations Act. The demand was dated 19 September 2001 and sought recovery of $40,000 by way of consultancy fees over the period from February to June 2000. 2 The application was made and served within time and was supported by affidavits of Mr Peter McCook of 10 October 2001, a director of the plaintiff, and of Mr Devlin of 10 October 2001, the managing director of the plaintiff. Mr McCook appeared for the plaintiff. 3 The defendant called no evidence and submitted that the plaintiff's evidence disclosed no genuine dispute as claimed in the originating process and therefore the Court did not have jurisdiction to grant relief.

4 The law in this regard is conveniently set out in the judgment of Sunburg J in Graywinter Properties Pty Limited v Gas and Fuel Corporation Superannuation Fund, 21 ACSR, 581. At 587.8 his Honour had the following to say: "Is a complying affidavit a condition of jurisdiction?