Dubow v Fitness First Australia Pty Ltd

This case concerned an application for leave to appeal from a decision of Ward J in the Supreme Court of New South Wales. The applicant, Dubow, sought to set aside a statutory demand issued by Fitness First Australia Pty Ltd. The primary judge had found that there was a genuine dispute about the debt claimed, which constituted "some other reason" for setting aside the demand under section 459J(1)(b) of the *Corporations Act 2001* (Cth).

The legal issues before the Court of Appeal involved whether the primary judge erred in finding a genuine dispute about the debt. This dispute arose from two distinct matters: a disagreement concerning the effect of a stay order previously made by Hulme J, and a question as to whether a deed of release extinguished the applicant's entitlement to costs previously ordered. The applicant's proposed grounds of appeal challenged aspects of the primary judge's detailed findings and the overall justice of her conclusion, rather than directly confronting the finding of a genuine dispute.

Campbell and Meagher JJA applied the test for a "genuine dispute" as articulated in *Eyota Pty Ltd v Hanave Pty Ltd*, requiring a "plausible contention requiring investigation". The Court found no realistic prospect of overturning the primary judge's finding that such a dispute existed. Many of the grounds of appeal were directed at resolving the underlying debt dispute, which were not appropriate for consideration on an application to set aside a statutory demand. Consequently, the Court concluded that the appeal lacked merit.

The application for leave to appeal was dismissed. The Court ordered that the applicant pay the respondent's costs, noting that the defence was manifestly hopeless and that an indemnity costs order had been made below.