Trycala Pty Ltd v Nature's Realm (Australia) Pty Ltd

[1998] FCA 1787

FEDERAL COURT OF AUSTRALIA

CORPORATIONS LAW – statutory demand – application to set aside – whether a genuine dispute about existence or amount of the debt to which the demand related.

Corporations Law s 459G

TRYCALA PTY LTD v NATURE’S REALM (AUSTRALIA) PTY LTD
VG 3184 of 1998

KENNY J
MELBOURNE
9 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 3184 of 1998

BETWEEN:	TRYCALA PTY LTD Applicant
AND:	NATURE'S REALM (AUSTRALIA) PTY LTD Respondent
JUDGE:	KENNY J
DATE OF ORDER:	9 NOVEMBER 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The statutory demand dated 6 May 1998 be set aside.

2. The respondent pay the applicant’s costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 3184 of 1998

BETWEEN:	TRYCALA PTY LTD Applicant
AND:	NATURE'S REALM (AUSTRALIA) PTY LTD Respondent

JUDGE:	KENNY J
DATE:	9 NOVEMBER 1998
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

This is an application made pursuant to s 459G of the Corporations Law for an order setting aside a statutory demand dated 6 May 1998 served on the applicant by the respondent.  The application was supported by affidavits sworn 28 May 1998 and 5 November 1998 by Nicholas Kritsonis, a director of the applicant.  There was also an affidavit in opposition sworn on 28 October 1998 by Philip Reed, marketing director of the respondent.

Although the respondent by its counsel formally opposed the application, it did not submit that there was no genuine dispute between the applicant and the respondent about the existence or amount of the debt to which the demand related.

Having read the affidavits to which I have referred, I am satisfied that there is a genuine dispute between the applicant and respondent about the existence or amount of the debt to which the demand relates.

Accordingly I order that the statutory demand dated 6 May 1998 served on the applicant by the respondent be set aside.

I order that the respondent pay the applicant’s costs of the application.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny

Associate:

Dated:             9 November 1998

Counsel for the Applicant:	Mr C R Northrop
Solicitor for the Applicant:	Bazzani Brand
Counsel for the Respondent:	Mr R L Moore
Solicitor for the Respondent:	Mills Oakley
Date of Hearing:	9 November 1998
Date of Judgment:	9 November 1998