Lords Holdings Pty Ltd v Brizzi [2004] NSWSC 371

New South Wales Supreme Court

CITATION : Lords Holdings Pty Ltd v Brizzi [2004] NSWSC 371 HEARING DATE(S) : 30 April 2004 JUDGMENT DATE : 30 April 2004 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Originating Process dismissed; Plaintiff to pay Defendant's costs on indemnity basis.

CATCHWORDS : CORPORATIONS - STATUTORY DEMAND - whether evidence not filed within the time required by s.459G(2) CA may be admitted. - INDEMNITY COSTS - where sole ground for alleged dispute is obviously untenable proposition of law. LEGISLATION CITED : Corporations Act 2001 (Cth) - s.459G(2) CASES CITED : Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 PARTIES : Lords Holdings Pty Ltd - Plaintiff Robert Brizzi - Defendant FILE NUMBER(S) : SC 1616/04 COUNSEL : L.J.W. Aitken - Plaintiff Ms J. Baxter - Defendant SOLICITORS : Stoikovich Macri - Plaintiff Agostino & Co - Defendant

Ex tempore

Late tender of affidavit

1 Mr Aitken, who appears for the Plaintiff, seeks to file in Court and to rely upon an affidavit of Sam Peter Cassaniti sworn on an unidentified date. The affidavit is tendered in support of the allegation that there is a genuine dispute as to the existence of the debt claimed by the Defendant. The affidavit is sought to be filed well out of the time for filing of an affidavit in support of the application to set aside the statutory demand which is prescribed by s.459G(2) of the Corporations Act 2001 (Cth). 2 There was in fact an affidavit filed within time in support of the present Originating Process. That is an affidavit of Travis Rourke which was sworn on 24 February 2004. The affidavit raises only one ground upon which it is said that a genuine dispute as to the existence of the debt arises. The affidavit deposes that Mr Rourke, who is a director and, indeed, the sole director of the Plaintiff, has inspected the Plaintiff's books and records and it appears that the Plaintiff has borrowed sums of money from the Defendant totalling $226,000. Mr Rourke says that the Plaintiff borrowed these monies from the Defendant, "in its capacity as trustee for the Securities Investment Trust and not in the Plaintiff's own right" . Paragraph 12 of the affidavit deposes: "The Plaintiff is not liable to the Defendant for the repayment of these amounts. It is no longer the Trustee of the Securities Investment Trust."