Fingal Glen Pty Ltd v Riviera Holdings Pty Ltd

[2012] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

FINGAL GLEN PTY LTD  v  RIVIERA HOLDINGS PTY LTD

[2012] SASC 156

Reasons of Judge Lunn a Master of the Supreme Court

7 September 2012

CORPORATIONS

Application under s 459G of Corporations Act 2001 to set aside statutory demand – supporting affidavit referred to another affidavit sworn by a different deponent in another action albeit between the same parties, but which not served in this action within the 21 days allowed by s 459G(3) – held plaintiff could not rely on affidavit in the other action.

Held: affidavit in support did not depose to any admissible evidence of a ground to set the demand aside and so requirement of s 459G(3) for the filing and service within the 21 day period of a supporting affidavit had not been satisfied – action dismissed.

CORPORATIONS

Application under s 459G of Act to set aside statutory demand – affidavit in support.

Held:  need not be sworn by a director of the plaintiff and can be from any deponent able to give admissible evidence.

PROCEDURE

Payment into court – notice of payment in said paid in pursuant to 6R 187(5), but no offer filed – no authorisation under any Act or Rule, or any order of the Court, for the payment in.

Held: improperly paid into Court and to be paid back.

FINGAL GLEN PTY LTD  v  RIVIERA HOLDINGS PTY LTD
[2012] SASC 156

JUDGE LUNN:

Reasons on application to set aside statutory demand

1. The defendant, Riviera Holdings Pty Ltd (“Riviera”), is the owner of the property at 31-34 North Terrace Adelaide, on which is situated the “Comfort Hotel Adelaide Riviera” (“the Motel”) and of the adjacent land which is used as a car park (“the car park”).  The plaintiff, Fingal Glen Pty Ltd (“Fingal”) held leases from Riviera of each of the Motel and the car park (“the leases”).[1]  On 4 June 2012 Riviera effected re-entries (“the re-entries”) of the Motel and the car park, but Fingal remains in occupation of them.  Riviera claims to have been entitled to re-enter because Fingal was in default in payment of rent due under the leases.

   [1]    It is generally not necessary in these Reasons to differentiate between the leases and they will be referred to collectively unless there is some point of differentiation.

2. On 6 June 2012 Riviera instituted action SCCIV-12-795 seeking a declaration that the re-entries on the Motel and the car park were effective and orders that Fingal deliver up possession of them to it.  No monetary amount was claimed in the Summons other than costs.  On 27 June 2012 Fingal filed a Defence and Counterclaim in this action (“the Defence and Counterclaim”).  It pleaded by way of defence that the re-entries were contrary to “mutual assumptions” between the parties, of which more will be said later.  In the counterclaim it sought a declaration that it has at all material times been lawfully entitled to possession of the Motel and the car park and, in the alternative, orders for relief against forfeiture.  Interlocutory applications by Riviera for summary judgment, and by Fingal for relief against forfeiture, have been held over by agreement pending the resolution of this action.

3. Riviera served a statutory demand dated 18 June 2012[2]  (“the statutory demand”) on Fingal claiming $141,426.66.  This debt was particularised in the statutory demand as being an amount due by Fingal to Riviera for unpaid rent and outgoings under the leases which were the subject of five invoices from Riviera to Fingal, which will be referred to in more detail later.

   [2] In the absence of evidence to the contrary, I presume that this demand was served on 18 June 2012 and thus the last day for service under s 459G(3) was 9 July 2012.

4. On 9 July 2012 Fingal instituted this action under s 459G of the Corporations Act 2001 (“the Act”) seeking to set aside the statutory demand.  It was supported by an affidavit sworn on 6 July 2012 by John Buff (“the Buff affidavit”).  He is the accountant for Fingal, but he has not been an officer of it since 2009. 

5. On 28 June 2012 Fingal filed in SCCIV-12-795 an affidavit of its sole director, Leslie Hammond, FDN8, (“the Hammond affidavit”), which had been sworn on 27 June somewhere in Victoria.[3]  Fingal has asserted that this affidavit and its numerous exhibits were served on Riviera’s solicitors.[4]  The covering letter from Fingal’s solicitors of 28 June stated:

   We have sought leave to file this affidavit notwithstanding that it has not been properly executed.  Mr Hammond has sworn the affidavit again today.

   On 28 June another Master made a fiat allowing the original affidavit to be filed notwithstanding the defects in it.  Thus, it appears that the copy of the affidavit served on 28 June was a copy of the affidavit as filed.  On 10 July 2012 Riviera’s solicitors wrote to Fingal’s solicitors disputing that they had been served with the Hammond affidavit, but this was on the incorrect assumption (albeit induced by Fingal’s solicitors) that a second version of the Hammond affidavit had been filed with which they had not been served.  I find for the purposes of SCCIV-12-795 that the Hammond affidavit was duly served on 28 June.

   [3]    The jurat does not disclose the place of swearing, but it was sworn before a Victorian Justice of the Peace.

   [4]    Paragraph 23 of the Buff affidavit.

6. The Buff affidavit made a number of references to the Hammond affidavit and seeks to rely on part of its contents and some of the documents exhibited to it.  Riviera disputes Fingal’s right in this action to so rely on the Hammond affidavit. 

7. Under s 459G(3)(b) of the Act Fingal had to serve on Riviera a copy of its supporting affidavit for the originating process in this action by no later than 9 July 2012. The statutory demand gave the address for the service of any application as the offices of the solicitors for Riviera. The registered office of Riviera was to the knowledge of Fingal at Doncaster East in Victoria. However, on 9 July Fingal’s solicitors purported to serve copies of the originating process, the Buff affidavit and the Hammond affidavit at the business premises of Riviera at 10 Burnett Street in Adelaide. This was not a mode of service authorised by the Act or the Rules, and was ineffective.[5]

   [5]    I need not go into a further submission raised by Riviera that the documents were left at the wrong place at the premises at 10 Burnett Street Adelaide.

8. Fingal filed an affidavit of Anne Horvath, an employee of its solicitors, about her service of these documents.  In paragraph 2 of that affidavit she defined “the Documents” as being the originating process, the Buff affidavit and the Hammond affidavit.  She deposed that shortly after 3.15pm on 9 July she couriered copies of “the Documents” to the offices of Riviera’s solicitors.  However, a copy of the letter from Fingal’s solicitors, which accompanied those documents which were couriered, only stated that the originating process and the Buff affidavit were being served.  It said:

   A copy of these documents along with a copy of the [Hammond affidavit] … has been delivered today to the offices of Riviera ….[6]

   This contradicted the affidavit of Ms Horvath that the Hammond affidavit was couriered to the solicitors for Riviera on 9 July. I find that no copy of that affidavit was served for the purposes of this action within the 21 day period allowed by s 459G(3)(b) of the Act, but Riviera’s solicitors did have a copy of it as a result of its service on them on 28 June 2012 in SCCIV-12-795. A copy of the Hammond affidavit was delivered to the Adelaide office of Riviera on 10 July, but this was too late to comply with s 459G(3)(b) and it was not by an authorised method of service.

   [6]    The letter is in Exhibit NE2 to the affidavit of Nicholas Economou (FDN4).

9. Riviera objects to the admissibility of the whole of each of the Buff affidavit and the Hammond affidavit in this action.  It was implicitly agreed that I would deal with these questions of admissibility in my final reasons.

10. In paragraph 3 of the Buff affidavit Mr Buff said:

    I am authorised to swear this affidavit on behalf of the plaintiff pursuant to a power of attorney executed by the company on Tuesday 3 July 2012.

11. The power of attorney was exhibited to the affidavit. Counsel for Riviera objected that the power of attorney did not authorise Mr Buff to give evidence on behalf of the plaintiff. Even if this objection is correct, it does not make the Buff affidavit inadmissible. Section 459G(3) of the Act merely refers to “a supporting affidavit”. It does not require that it be sworn by an officer of the company. It is sufficient that the deponent is someone who can give admissible evidence in support of the application.[7]  As the accountant for Fingal, Mr Buff had some standing to be able to give evidence about its affairs.  What admissible evidence he did give will be dealt with later.

    [7]    Farid Assaf, Statutory Demands and Winding Up in Insolvency (2nd ed, 2012) [4.18].

12. Even if the power of attorney did not authorise Mr Buff to give evidence on behalf of Fingal, it did authorise him to make decisions for it in relation to the statutory demand in this action.  Insofar as he made those decisions, he could give evidence of them in his affidavit provided they were relevant. 

13. While it may usually be desirable for an officer of the plaintiff company to swear an affidavit in support of a s 459G application, it is not essential. In some instances the Court will more readily assume that a director can speak of his or her own knowledge about the affairs of the company than some other deponent.[8]

    [8]    Saferack Pty Ltd v Marketing Heads Australia Pty Ltd (2007) 25 ACLC 1392 at 1402; Ceduna Marina Development Company Pty Ltd v Umilo Bria Kourakis CJ, 2 July 2012, [2012] SASC 115.

14. Information and belief evidence may be given on an s 459G application.[9] However, such information and belief evidence must comply with 6R 162(2) Exception 1 in that it can only contain statements that the witness honestly believes to be true if the witness also states the grounds of his belief.[10]  The Buff affidavit has made no attempt to comply with these prerequisites for information and belief evidence in purporting to depose to matters which are not shown to be within the deponent’s own knowledge.

    [9]    Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408.

    [10]   Hyundai Multicav Pty Ltd v PC Club Australia Pty Limited, Lunn M, 12 April 2005, [2005] SASC 128. That case was decided on earlier Rules, but there was no material difference from the requirements of the present Rules on this topic.

15. Courts have usually been fairly lenient about the formal requirement for affidavits in support of s 459G applications because of the limited time in which they have to be prepared and filed.[11]  However, this does not mean that the Court will countenance wholesale departures from the requirements of the Rules.  The Buff affidavit said at paragraph 2 that Mr Hammond was travelling outside of Australia and would not return to Australia until 23 July.  However, Mr Hammond executed the power of attorney on 3 July.  There is no evidence about where he executed it, but, if it was not in Victoria, it was in a place where documents could be got to him and he could communicate with Mr Buff and his solicitors.  It would have been a fairly simple exercise to have cut and pasted the relevant paragraphs from his affidavit of 28 June in SCCIV-12-795 into an affidavit for this action and for him to have sworn it by no later than when he executed the power of attorney.  Alternatively, he could have communicated to Mr Buff the relevant information to which Mr Buff could then properly have deposed on information and belief.

    [11]   Farid Assaf, Statutory Demands and Winding Up in Insolvency, above, [4.47].

16. In the following paragraphs I deal with the significant objections to the admissibility of various parts of the Buff affidavit.  It is generally not necessary to quote its contents verbatim.  Many of the objections fall into particular categories which can be dealt with together.

17. Paragraphs 11, 12, 16, 17 and 38 exhibit various documents. As Mr Buff is the accountant for Fingal, I infer that these documents came from the business records of Fingal. Accordingly, they would be admissible in evidence under s 45A of the Evidence Act 1929.  Riviera did not challenge their authenticity.[12]   Accordingly, I find these paragraphs and the exhibits referred to in them to be admissible.

    [12]   Its primary objection was that the documents were not all of the relevant documents, but it has put further documents in evidence itself.

18. Paragraphs 5, 13, 25, 26, 27, 28, 29, 32, 33.4, 34.2, 35.1, 35.3, 36.3 and 40 are assertions of various kinds by Fingal.  For the reasons given, I find that Mr Buff can speak on behalf of Fingal insofar as it needs to make assertions.  Insofar as these paragraphs deal with relevant assertions, they are admissible.  However, they are only admissible as to the fact that this was the position taken by Fingal.  Insofar as they are argumentative, or seek to establish the facts asserted, they are inadmissible.

19. Paragraphs 14, 15, 18, 19, 20, 21, 22, 24, 30 and 31 speak of what has occurred in action SCCIV-12-795.  No proper foundation has been laid for Mr Buff to be able to give evidence of what has occurred in that action.  Therefore these paragraphs are not admissible.  However, as the documents filed in that action are part of the records of this Court, I am able to take judicial notice of the pleadings in that action, the orders made by the Court and the fact of the filing of affidavits in that action, but not of their contents as facts.

20. Paragraphs 22, 33.2, 33.3, 34.1, 36.2 and 37.1 are cross-references to the Hammond affidavit and which purport to summarise what it says.  It does not qualify as information and belief evidence under 6R 160(1).  There is no authority of which I am aware that enables an affidavit filed in one action to be used as evidence in another action, even where the two actions are between the same parties, unless the Court has given permission to do so.[13]  The point is important because the only evidence given by Fingal in support of any genuine dispute based on the “mutual assumption” ground is by these cross-references to the Hammond affidavit.  These paragraphs are all inadmissible.

    [13]   On 8 August I directed that Fingal need not file any duplicate of the Hammond affidavit in this action, but that was merely to stop an unnecessary extra document being put onto this file when I already had the document before me in SCCIV-12-795.  It was not any retrospective permission enabling the Hammond affidavit to be used as evidence in this action.

21. The affidavit filed and served by Fingal within the 21 days allowed by s 459G(3) had to depose to admissible evidence of grounds of dispute relied upon by Fingal under s 459H of the Act.[14]  The primary issue here is whether the Buff affidavit contains any admissible evidence of the genuine disputes on which Fingal seeks to rely.[15] 

    [14]   Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 at 460; Bentham Management Pty Ltd v Union Finance Pty Ltd (2007) 247 LSJS 103 at [24].

    [15]   On the facts of this matter it is not necessary to go into the more difficult question of whether if the Buff affidavit raised some ground on which to set aside the demand, subsequent affidavits could set up other grounds.  See the discussion of the authorities in 185L6 Pty Ltd v Strata Corporation 07176 Inc, Blue J, 4 October 2011, [2011] SASC 164 at [16]-[20]. As will be stated later, the admissible evidence in the Buff affidavit does not provide any sufficient ground to set aside the statutory demand.

22. On the authorities, it is sufficient to satisfy the “Graywinter” test that the evidence for a ground is contained in admissible documents exhibited to the affidavit filed and served within time, even though the ground is not identified as such in the body of the affidavits.[16] However, there was no authority cited that a ground could be relied upon where the only admissible evidence of it was in an affidavit in another action and in documents exhibited to the affidavit in that other action. While some leniency has been extended by the Courts to applicants under s 459G in the preparation of their affidavits because of the 21 day strict time limit[17] there is no good reason, at least in the circumstances of this matter, to extend that leniency to incorporating into the supporting affidavit the contents of an affidavit of another deponent in a different action, albeit between the same parties.  Thus, on this ground also, I reject the admissibility of those paragraphs of the Buff affidavit which seek to incorporate by cross-reference the contents of the Hammond affidavit.

    [16]   POS Media v B Family (2003) 21 ACLC 533; Saferack Pty Ltd v Marketing Heads Australia Pty Ltd , above; Callite Pty Ltd v Adams [2001] NSWSC 52 which is quoted in Saferack at 1397; SMEC International Pty Ltd v CMS Engineering Inc (2001) 38 ACSR 595.

    [17]   Farid Assaf, Statutory Demands and Winding Up in Insolvency, above, [4.47].

23. I now deal with the admissibility of some other paragraphs of the Buff affidavit which do not fit into the above categories.

24. Paragraph 33.1 deposes:

    33.1.the plaintiff tendered payment of the amount of $45,985.38 to the defendant by EFT payment on Tuesday 5 June 2012 which payment was rejected by the defendant, which invoice and factual issue is referred to and pleaded in paragraphs 6 – 7 of the Statement of Claim of Riviera Holdings and paragraph 6 of the defence of Fingal Glen in action number 795 of 2012; and;

    Mr Buff gives no basis from which it can be seen that he was deposing to this tender and its rejection of his own knowledge.  He does not lay a proper foundation for it to be admissible as information and belief evidence.  The references to the pleadings in SCCIV-12-795 are not evidence of the truth of the facts pleaded.  As I have said above, it is not for Mr Buff to give evidence of what has occurred in SCCIV-12-595, but I can take judicial notice of it.  The paragraphs referred to about the pleadings in that action do not amount to evidence of the facts and are merely assertions and counter-assertions.  In any event, an admission for the purpose of one action is not to be taken as an admission for the purpose of another action.[18]

    [18]   Laws v Australian Broadcasting Tribunal (1990) 93 ALR 435.

25. Paragraph 35.2 deposes that Fingal has not been provided with proper particulars of the basis upon which the legal costs are asserted to be due and payable.  Again, Mr Buff provides no basis upon which he can depose to that of his own knowledge or on information and belief.

26. Paragraph 36.1 deposes that Riviera had refused to accept rent from Fingal.  The sub-paragraph does not identify what rent, although as it is in the context of an answer to the claim in invoice 69, it is probably the rent for the Motel and the car park referred to in that invoice.  As is deposed to in the affidavit of Nicholas Economos (FDN4) filed by Riviera, there were correspondence and documents relating to this topic, of which Fingal must have been aware, but which were not referred to in the Buff affidavit.  Again, no proper foundation has been laid for Mr Buff to swear to this sub-paragraph of his own knowledge or on information and belief. 

27. I reject the admissibility of each of paragraphs 33.1, 35.2 and 36.1.

28. The upshot of this is that the few paragraphs of the Buff affidavit which are admissible do not depose to any facts which can be even one ground to set aside, or reduce, the statutory demand. The references in it to purported defences based on “mutual assumptions”, the refusal of payments tendered, the incorrect calculation of interest and the denials of liability to reimburse legal costs are mere assertions and are not supported by any evidence upon which any finding of a genuine dispute under s 459H or of any other ground to set aside the statutory demand could be made. Hence, the action fails because the pre-condition required by s 459G(3) of the filing and service of an affidavit deposing to grounds to set aside the statutory demand within the 21 day period have not been satisfied.

1. In summary, I hold that Fingal has not satisfied the jurisdictional prerequisites in s 459G(3) because:

   ·Under s 459G some supporting affidavit must be filed and served within 21 days of the service of the demand;

   ·That supporting affidavit and/or its exhibits must disclose some sufficient ground to set aside the demand;

   ·The Buff affidavit did not disclose any such sufficient ground;

   ·Therefore Fingal has not satisfied s 459G and so the action must be dismissed;

   ·Even if the Hammond affidavit could be treated as part of the Buff affidavit, s 459G(3) would still not be satisfied because no copy of the Hammond affidavit was served for the purposes of this action within the 21 day period.

   For these reasons the action must be dismissed.

2. On 16 August 2012, the day before the argument in this matter, Fingal paid into Court in SCCIV-12-795 the sum of $141,426.66.  The Notice of Payment in read in part:

   Fingal … has unconditionally paid the sum of $141,426.66 into the Supreme Court … for the full amount demanded by the plaintiff from the defendant in the statutory demand dated 18 June 2012 on a without admission basis.  Pursuant to Rule 187(5).

   When this payment was brought to my attention by counsel for Fingal at the outset of the hearing on 17 August, I ruled that it was not a proper payment into Court and that it was to be refunded.  Money can only be paid into Court where it is authorised by an Act or a Rule or is pursuant to a direction of the Court.[19]

   [19]   Tindall Gask Bentley v KH International Traders Pty Ltd, Lunn M, 16 December 2009, [2009] SASC 387.

3. This payment into Court could not be justified under 6R 187(5) which was stated to be the purported justification for the payment in.  That sub-rule provides:

   (5)If a defendant makes an offer of settlement for a specified amount, the offer may be accompanied by a payment into Court of the relevant amount.

4. An offer of settlement in sub-r (5) means an offer in accordance with 6R 187.[20]  No such offer was filed.  It is unlikely an offer under 6R 187 could properly be made, as Riviera seeks no monetary judgment in SCCIV-12-795 other than an ancillary order for costs.  Furthermore, the statutory demand is not relevant to action SCCIV-12-795, and no condition relevant to this action could be included in any offer under 6R 187 filed in SCCIV-12-795.  Accordingly, I directed that all these monies be paid back to Riviera.[21]   It is of no relevance to what I have to decide in this action.

   [20]   Blake v Leondiou & Anor (No 2), Blue J, 27 July 2012, [2012] SASC 131 at [32].

   [21]   The order for payment out was not made until 4 September 2012 because of the absence of the Registrar.

5. In the alternative, even if the Hammond affidavit had been admissible in this action, and could have been properly treated as part of the evidence in the Buff affidavit, for the brief reasons which follow, no sufficient ground was made out to justify setting aside the statutory demand.

6. The only ground relied upon by Fingal was that there were genuine disputes within s 459H of the Act. Counsel for Fingal cited the test of a genuine dispute as that laid down by McLelland CJ Eq in Eyota Pty Ltd v Hanave Pty Ltd[22] where he said:

   In my opinion that expression connotes a plausible contention requiring investigation, and raises much the same sort of considerations as the “serious question to be tried” criterion which arises on an application for interlocutory injunction … this does not mean that the court must accept uncritically as giving rise to a genuine dispute, every statement and affidavit “however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be” not having “sufficient prima facie plausibility to merit further investigation as to [its] truth” … or “a patently feeble legal argument or an assertion of facts unsupported by evidence”…[23]

   [22] (1994) 12 ACSR 785 at 786.

   [23]   There are many other formulations of the test which are to similar effect.  See Civil Procedure South Australia Volume 2 [20,925.1].

7. The statutory demand gave particulars of the debt claimed by reference to five invoices which had been rendered by Riviera to Fingal.  These were invoices 65, 66 and 67, each dated 23 April 2012 and invoices 69 and 70, each dated 8 June 2012.  Invoice 65 was for rent on both leases payable on 1 May 2012.  Invoices 66 and 70 were for the balance of outgoings, rates, taxes and the like which had been paid by Riviera.  Invoice 67 was for legal expenses incurred by Riviera which were recoverable under the terms of the leases.  Invoice 69 was for the amount of the monthly rent which became due under the leases on 1 June 2012.  Each of the invoices also claimed amounts for interest and GST.  Rather than go through each item in each of the invoices individually, it is sufficient to deal with the various heads of dispute which were hinted at by Fingal and many of which were common to more than one item in various of the invoices. 

8. A defence pleaded by Fingal in SCCIV-12-795 was that the re-entries were in breach of “mutual assumptions” acted on by the parties over a number of years which allowed for late payments of rent and outgoings.  The pleading in SCCIV-12-795 only relates to the invoice 65 for the defaults on which the re-entries were based, and not invoices 69 and 70 which were only issued after the re-entries were effected.  The defence based on the “mutual assumptions”, as pleaded in SCCIV-12-795, was only raised to deny the right of Riviera to re-enter under the leases.  There was no pleading that the amounts outstanding by Fingal were not due and payable.[24]  In the pleadings in SCCIV-12-795 Fingal did not allege that the debts by the time of the re-entries were not due and payable.  No sufficient “genuine dispute” has been raised based on any of the alleged “mutual assumptions”.

   [24]   This is subject to the issues about tender of the amounts, which will be dealt with later.

9. On various occasions Fingal tendered amounts to Riviera for rent and outgoings which were rejected by Riviera.  I do not need to go into the detailed history of these tenders and the correspondence relating to them.  The documents disclose that every tender was either expressly or potentially conditional upon its acceptance by Riviera being a waiver of the forfeiture of the leases effected by re-entries.  Riviera was entitled to insist that its acceptance of any monies tendered were not inconsistent with its position that it had validly forfeited the leases.  No sufficient “genuine dispute” is made out by the allegations of tender.

10. In relation to invoice 67 for legal expenses, paragraph 35 of the Buff affidavit alleged that Fingal had not been provided with proper particulars of the basis of the legal costs and asserted that it was not liable to reimburse Riviera for those costs. No grounds were given as to why Riviera was required to supply proper particulars of the costs to Fingal, or why such costs were not payable. Under the terms of the leases, Riviera was entitled to reimbursement of such legal expenses. If the complaint of Fingal was that the amounts claimed for the legal expenses were excessive, no material has been put forward on which I could assess that there was a genuine dispute as to part of the amount claimed on the basis that it was excessive for the purposes of s 459H[4] of the Act. Fingal has not made out any “genuine dispute” on this ground.

11. The only dispute raised about the GST claimed in the five invoices was in the oral submissions of counsel for Fingal.  He said in respect of the GST claimed in invoice 69 that it was not due and payable when that invoice was issued, as under clause 18 of the leases there was no liability to pay it until receipt of the tax invoice.  However, there was no evidence that the tax invoice had not been received before the service of the statutory demand.  Fingal has not made out any “genuine dispute” on this ground.

12. The Buff affidavit asserts that Riviera is not entitled to any of the interest claimed in the five invoices, but does not give any grounds for the assertion.  Fingal argued that the interest claimed was not properly calculated under the leases.  The leases give an entitlement to interest for overdue payments and payments were overdue.  If Fingal sought to dispute part of the claim for interest, it was required to give me some calculations about the amounts which it said were justified and unjustified, but it did not do so.  Fingal has not made out any “genuine dispute” on this ground.

13. As no genuine dispute, or other possible ground to set aside the statutory demand, has been made out by Fingal, there is no proper basis upon which to order that the demand be set aside under s 459H of the Act on condition of payment of the amount claimed into Court under s 459M of the Act. Fingal does not want to have to pay the debt and then risk being refused relief against forfeiture in SCCIV-12-795. However, issues in this action are separate from those in SCCIV-12-795 and if Fingal does not now pay out the statutory demand, it will be presumed to be insolvent under s 459C of the Act.

14. The action will be dismissed.