Delta Beta Pty Ltd v Vissers, Everhard [1996] FCA 330

Delta Beta Pty Ltd v Vissers, Everhard [1996] FCA 330

The statutory demand was defective for failing to provide a description of individual debts and omitting the required Schedule, which, on the facts, caused substantial injustice as the applicant could not determine the amounts owing. Further, the verifying affidavit was based on hearsay and not personal knowledge as...

Source-derived case information.

Parties
Applicant: DELTA BETA PTY LTD (ACN 009 434 968); Respondent: EVERHARD VISSERS
Jurisdiction
Australia
Judgment Date
09 May 1996
Procedural Posture
Corporations – Application to Set Aside Statutory Demand / Hearing and Judgment at First Instance
Outcome
Application granted; statutory demand set aside
Legal Topics
Statutory Demand, Defect in Demand, Affidavit Verifying Demand, Setting Aside Statutory Demand, Substantial Injustice, Other Reason to Set Aside Demand, Abuse of Process
Corporations Law Statutory Demand Defect in Demand Affidavit Verifying Demand Setting Aside Statutory Demand Substantial Injustice Other Reason to Set Aside Demand Abuse of Process

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Parties

DELTA BETA PTY LTD (ACN 009 434 968)

Applicant

EVERHARD VISSERS

Respondent

Procedural Posture

Corporations – Application to Set Aside Statutory Demand / Hearing and Judgment at First Instance

Legal Issues

  1. 1 Whether defect in the description of debt in the statutory demand causes substantial injustice
  2. 2 Whether there is a defect in the confirming affidavit sufficient to set aside the demand
  3. 3 Whether such defects constitute 'other reason' to set aside the demand under the Corporations Law

Ratio Decidendi

The statutory demand was defective for failing to provide a description of individual debts and omitting the required Schedule, which, on the facts, caused substantial injustice as the applicant could not determine the amounts owing. Further, the verifying affidavit was based on hearsay and not personal knowledge as required, and constituted a sufficient 'other reason' to set aside the demand. These defects justified granting the application to set aside the statutory demand under s459J(1)(a) and (b) of the Corporations Law.

Court Disposition

Application granted; statutory demand set aside

Orders

  • The statutory demand for payment of debt served upon the applicant by the respondent on 8 January 1996 pursuant to s459E of the Corporations Law be set aside pursuant to s459H and 459J(1).
  • The respondent pay the applicant's costs of the application.