Document ID: chunk:federal_register_of_legislation:C2004A04501:schedule:3:p54
Version: federal_register_of_legislation:C2004A04501
Segment Type: schedule
Provision Reference: sch 3 (pt 54/110)
Character Range: 289930–292651

the demand is served and ending 7 days after the application under section 459G is finally determined or otherwise disposed of; or

   (b) otherwise—21 days after the demand is served.

"Division 3—Application to set aside statutory demand

Company may apply

"459G.(1) A company may apply to the Court for an order setting aside a statutory demand served on the company.

"(2) An application may only be made within 21 days after the demand is so served.

"(3) An application is made in accordance with this section only if, within those 21 days:

     (a)     an affidavit supporting the application is filed with the Court; and

     (b)     a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.

Determination of application where there is a dispute or offsetting claim

"459H.(1) This section applies where, on an application under section 459G, the Court is satisfied of either or both of the following:

     (a)     that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates;

   (b)     that the company has an offsetting claim.

"(2) The Court must calculate the substantiated amount of the demand in accordance with the formula:

where:

'Admitted total' means:

  (a)     the admitted amount of the debt: or

(b)     the total of the respective admitted amounts of the debts; as the case requires, to which the demand relates;

'Offsetting total' means:

    (a)     if the Court is satisfied that the company has only one offsetting claim—the amount of that claim; or

    (b)     if the Court is satisfied that the company has 2 or more offsetting claims—the total of the amounts of those claims; or

  (c)     otherwise—a nil amount.

"(3) If the substantiated amount is less than the statutory minimum, the Court must, by order, set aside the demand.

"(4) If the substantiated amount is at least as great as the statutory minimum, the Court may make an order:

  (a)     varying the demand as specified in the order; and

    (b)     declaring the demand to have had effect, as so varied, as from when the demand was served on the company.

  "(5) In this section:

'admitted amount', in relation to a debt, means:

    (a)     if the Court is satisfied that there is a genuine dispute between the company and the respondent about the existence of the debt—a nil amount; or

    (b)     if the Court is satisfied that there is a genuine dispute between the company and the respondent about the amount of the

     debt—so much of that amount as the Court is satisfied is not the subject of such a dispute; or

   (c) otherwise—the amount of the