Bendent v Don Fox [2001] NSWSC 909

Bendent v Don Fox [2001] NSWSC 909

The summons was dismissed because the application and supporting affidavit were not filed within the required time, the filed summons and affidavit were not served in time, and the debt was an existing Local Court judgment debt which had not been set aside or stayed, so there was no genuine dispute about the debt.

Jurisdiction
Australia
Judgment Date
16 October 2001
Procedural Posture
Application to Set Aside a Statutory Demand Under S 459 G of the Corporations Act / Summons Heard and Dismissed
Outcome
Summons dismissed with costs; indemnity costs refused.
Legal Topics
['statutory Demand' 'application to Set Aside Statutory Demand' 'time for Filing and Service' 'genuine Dispute' 'judgment Debt' 'indemnity Costs']
['corporations Law' 'insolvency' 'civil Procedure'] ['statutory Demand' 'application to Set Aside Statutory Demand' 'time for Filing and Service' 'genuine Dispute' 'judgment Debt' 'indemnity Costs']

Case Brief

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Procedural Posture

Application to Set Aside a Statutory Demand Under S 459 G of the Corporations Act / Summons Heard and Dismissed

Legal Issues

  1. 1 ['Whether the application and supporting affidavit to set aside the statutory demand were filed and served within the time required by s 459G of the Corporations Act.' 'Whether there was a genuine dispute about the existence of the debt where the debt arose from a Local Court judgment that had not been set aside and was not stayed.' 'Whether the proceedings should be adjourned because an application for leave to reinstate Supreme Court review proceedings was listed for the following day.' 'Whether indemnity costs should be ordered.']

Ratio Decidendi

The summons was dismissed because the application and supporting affidavit were not filed within the required time, the filed summons and affidavit were not served in time, and the debt was an existing Local Court judgment debt which had not been set aside or stayed, so there was no genuine dispute about the debt.

Court Disposition

Summons dismissed with costs; indemnity costs refused.

Orders

  • ['The summons is dismissed with costs.' 'No order for indemnity costs.']