Category Archives: s. 170

Fitness First Australia Pty Ltd v Dubow [2011] NSWSC 531 (3 June 2011)

CORPORATIONS – application under s 459G Corporations Act 2001 (Cth) for order setting aside statutory demand – whether demand validly served in absence of an affidavit verifying debt – whether genuine dispute as to existence of debt or offsetting claim – whether “some other reason” established for the purposes of s 459J(1)(b) – HELD – demand not served in compliance with s 459E as no affidavit verifying that portion of the debt which was not a judgment debt – genuine dispute as to the proper construction of an order staying the execution of the initial costs order underlying the judgment debt and as to whether the debt had been released prior to the registration of the costs assessment certificates – therefore genuine dispute as to existence of the debt – entry into Deed of Release constitutes “some other reason” for the purposes of s 459J(1)(b) – statutory demand set aside

Huang v University of New South Wales [2010] FCAFC 104 (25 August 2010)

EVIDENCE – foreign evidence – application to obtain evidence from Korea for use in Federal Magistrates Court proceeding – whether appellant denied procedural fairness – interpreter present during morning, but absent in afternoon, when hearing continued and judgment given – application adjourned to enable appellant to apply to vacate trial date – application subsequently dismissed because appellant had not so applied – whether appellant failed to understand requirement to apply to vacate trial date before next mention of application – whether appeal court should deal with merits of application when primary judge had not done so – appellant could have made further application once trial date vacated, but did not do so – need to obtain evidence from Korea depends on course taken by respondents at trial in relation to statements of Korean witness in an exchange of emails with appellant and in an affidavit

Evidence Act 1995 (Cth), ss 27, 63, 63(2)(b), 67, 170, 173, 190(1)(b), 190(3), 190(4)