Ozone Manufacturing Pty Ltd v Workcover Corporation

[2013] FCA 87

FEDERAL COURT OF AUSTRALIA

Ozone Manufacturing Pty Ltd v Workcover Corporation [2013] FCA 87

Citation:		Ozone Manufacturing Pty Ltd v Workcover Corporation [2013] FCA 87
Parties:		OZONE MANUFACTURING PTY LTD ACN 008 006 433 v WORKCOVER CORPORATION ABN 83 687 563 395
File number:		NSD 1491 of 2012
Judge:		ROBERTSON J
Date of judgment:		13 February 2013
Legislation:		Corporations Act 2001 (Cth) s 459G
Cases cited:
Date of hearing:	13 February 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Plaintiff:	The Plaintiff did not appear
Solicitor for the Defendant:	Mr D Colovic of Kelly & Co

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1491 of 2012

BETWEEN:	OZONE MANUFACTURING PTY LTD ACN 008 006 433 Plaintiff
AND:	WORKCOVER CORPORATION ABN 83 687 563 395 Defendant

JUDGE:	ROBERTSON J
DATE OF ORDER:	13 FEBRUARY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The plaintiff’s application to set aside the statutory demand be dismissed.

2.The plaintiff pay the defendant’s costs of the application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1491 of 2012

BETWEEN:	OZONE MANUFACTURING PTY LTD ACN 008 006 433 Plaintiff
AND:	WORKCOVER CORPORATION ABN 83 687 563 395 Defendant

JUDGE:	ROBERTSON J
DATE:	13 FEBRUARY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 2 October 2012 the plaintiff company filed an application under s 459G of the Corporations Act 2001 (Cth) to set aside the statutory demand, dated 4 September 2012 but received on 14 September 2012,which is Annexure SF01 to the affidavit of Mr Simon Forbes Oake sworn 2 October 2012.

2. There being no appearance by or on behalf of the plaintiff company, in the circumstances described below, I dismiss the application to set aside the statutory demand, with costs.

3. The brief history of the matter is that it came before the Registrar on 26 October 2012 by telephone and orders were made as to the filing and service of material. There was also a query as to whether or not the plaintiff could appear by its director at the next directions hearing.

4. That next directions hearing was fixed for 19 December 2012. On that date, again by telephone to Adelaide, the District Registrar referred the matter to my docket and adjourned it until 9.30 am on 13 February 2013 and directed that the plaintiff comply with rule 4.01(2) of the Federal Court Rules 2011 by being represented by a lawyer on 13 February 2013.

5. I also note, as part of the history of the matter, a letter dated 21 December 2012 from the lawyers for the defendant to the plaintiff company drawing the company’s attention to the hearing before the Registrar to which I have referred and the direction that the Registrar then made as to legal representation by the company. That letter also gave notice to the plaintiff company that the defendant would oppose any further adjournment to permit the lawyer to become appraised of the matter, given the time that had elapsed and the seriousness of the matter.

6. At 9.30 am this morning the matter was called and there was no appearance on behalf of the plaintiff. I asked Mr Colovic for the defendant to seek to communicate with Mr Oake by telephone while I dealt with another matter in the list.

7. At 10.15 am the matter was again called and again there was no appearance on behalf of the plaintiff. Mr Colovic told me that he had been able to telephone the number of Mr Oake and left a message but had not spoken to Mr Oake directly.

8. In the circumstances, the plaintiff company has had the opportunity to be heard and to make submissions in support of its application to set aside the statutory demand and that opportunity has not been taken. I therefore make the orders I have indicated, that is that the application to set aside the statutory demand be dismissed and the defendant have its costs of the application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:        13 February 2013