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CORPORATIONS ACT 2001 - SECT 459H

Determination of application where there is a dispute or offsetting claim

             (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 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.



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