Faji (Australia) Constructions Pty Ltd v AC Professional Accounting Pty Ltd; Faji (Australia) Trading Pty Ltd v AC Professional Accounting Pty Ltd [2009] NSWSC 180

Faji (Australia) Constructions Pty Ltd v AC Professional Accounting Pty Ltd; Faji (Australia) Trading Pty Ltd v AC Professional Accounting Pty Ltd [2009] NSWSC 180

The plaintiffs did not establish a genuine dispute about the existence of either debt, but each statutory demand was set aside under s 459J(1)(b) because the accompanying solicitor affidavit was based on matters of which the solicitor had no first-hand knowledge and therefore failed to provide the sworn assurance about the debt, its due and payable character, and the absence of genuine dispute that the recipient of a statutory demand is entitled to expect.

Jurisdiction
Australia
Judgment Date
18 March 2009
Procedural Posture
Applications Under S 459 G of the Corporations Act 2001 (cth) to Set Aside Statutory Demands / Principal Judgment
Outcome
Statutory demands set aside; defendant ordered to pay plaintiffs' costs subject to exceptions concerning affidavits not relied on and responsive affidavits.
Legal Topics
['statutory Demand' 'genuine Dispute as to Existence of Debt' 'some Other Reason to Set Aside Statutory Demand' 'affidavit Accompanying Statutory Demand' 'hearsay Evidence in Verifying Affidavit']
['corporations' 'insolvency'] ['statutory Demand' 'genuine Dispute as to Existence of Debt' 'some Other Reason to Set Aside Statutory Demand' 'affidavit Accompanying Statutory Demand' 'hearsay Evidence in Verifying Affidavit']

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Procedural Posture

Applications Under S 459 G of the Corporations Act 2001 (cth) to Set Aside Statutory Demands / Principal Judgment

Legal Issues

  1. 1 ['Whether there was a genuine dispute about the existence of the debts claimed in the statutory demands under s 459H(1)(a) of the Corporations Act 2001 (Cth).' 'Whether the documents accompanying the statutory demands were affidavits despite using the word "affirm" in the body and "Sworn" in the jurat.' 'Whether solicitor affidavits based on matters outside the solicitor\'s first-hand knowledge provided a sufficient sworn assurance for s 459E purposes, or gave rise to "some other reason" to set aside the demands under s 459J(1)(b).']

Ratio Decidendi

The plaintiffs did not establish a genuine dispute about the existence of either debt, but each statutory demand was set aside under s 459J(1)(b) because the accompanying solicitor affidavit was based on matters of which the solicitor had no first-hand knowledge and therefore failed to provide the sworn assurance about the debt, its due and payable character, and the absence of genuine dispute that the recipient of a statutory demand is entitled to expect.

Court Disposition

Statutory demands set aside; defendant ordered to pay plaintiffs' costs subject to exceptions concerning affidavits not relied on and responsive affidavits.

Orders

  • ['In each proceeding, the statutory demand served by the defendant on the plaintiff be set aside.' "The defendant pay the plaintiff's costs of the proceedings, provided that the plaintiff shall not be entitled to costs associated with the preparation of affidavits filed and served but not relied on, and the...