Document ID: chunk:federal_register_of_legislation:C2004A04501:schedule:3:p55
Version: federal_register_of_legislation:C2004A04501
Segment Type: schedule
Provision Reference: sch 3 (pt 55/110)
Character Range: 292423–295129

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 debt;

'offsetting claim' means a genuine claim that the company has against the respondent by way of counterclaim, set-off or cross-demand (even if it does not arise out of the same transaction or circumstances as a debt to which the demand relates);

  'respondent' means the person who served the demand on the company.

  "(6) This section has effect subject to section 459J.

Setting aside demand on other grounds

"459J.(1) On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:

    (a)     because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or

  (b)     there is some other reason why the demand should be set aside.

"(2) Except as provided in subsection (1), the Court must not set aside a statutory demand merely because of a defect.

Effect of order setting aside demand

"459K. A statutory demand has no effect while there is in force under section 459H or 459J an order setting aside the demand.

Dismissal of application

"459L. Unless the Court makes, on an application under section 459J, an order under section 459H or 459J, the Court is to dismiss the application.

Order subject to conditions

"459M. An order under section 459H or 459J may be made subject to conditions.

Costs where company successful

"459N. Where, on an application under section 459G, the Court sets aside the demand, it may order the person who served the demand to pay the company's costs in relation to the application.

"Division 4—Application for order to wind up company in insolvency

Who may apply for order under section 459A

"459P.(1) Any one or more of the following may apply to the Court for a company to be wound up in insolvency:

  (a)     the company;

    (b)     a creditor (even if the creditor is a secured creditor or is only a contingent or prospective creditor);

  (c)     a contributory;

  (d)     a director;

  (e)     a liquidator or provisional liquidator of the company;

  (f)      the Commission;

   (g) a prescribed agency.

"(2) An application by any of the following, or by persons including any of the following, may only be made with the leave of the Court:

    (a)     a person who is a creditor only because of a contingent or prospective debt;

  (b)     a contributory;

  (c)     a director;

  (d)     the Commission.

"(3) The Court may give leave if satisfied that there is a prima facie case that the company is insolvent, but