Fitness First Australia Pty Ltd v Dubow

The applicant, Fitness First Australia Pty Ltd, applied to set aside a statutory demand served by the respondent, Mr Dubow. The demand sought payment of $54,606.83, being an unpaid balance of a judgment debt, plus interest and costs. The matter was heard in the Federal Circuit Court of Australia. The applicant argued that the demand was not validly served, as it was not accompanied by an affidavit verifying the portion of the debt that was not a judgment debt. Additionally, the applicant claimed that there was a genuine dispute as to the existence of the debt or offsetting claim, and that there was "some other reason" for setting aside the demand under section 459J(1)(b) of the Corporations Act 2001 (Cth).

The court found that the demand was not served in compliance with section 459E of the Corporations Act because it lacked an affidavit verifying the portion of the debt that was not a judgment debt. The court also found that there was a genuine dispute as to the proper construction of an order staying the execution of an initial costs order underlying the judgment debt and whether the debt had been released prior to the registration of the costs assessment certificates. Therefore, there was a genuine dispute as to the existence of the debt. Finally, the court found that the entry into a Deed of Release constituted "some other reason" for the purposes of section 459J(1)(b) of the Corporations Act.

The court set aside the statutory demand, finding that it was not validly served and that there was a genuine dispute as to the existence of the debt. The court also found that the entry into the Deed of Release constituted "some other reason" for setting aside the demand. Therefore, the applicant's application to set aside the demand was successful. The court ordered that the statutory demand be set aside and that the applicant pay the respondent's costs of the application.