Grace Consulting Pty Ltd v Bourke Constructions Pty Ltd; Grace Consulting Pty Ltd v JLB Projects Pty Ltd [2005] NSWSC 836

Grace Consulting Pty Ltd v Bourke Constructions Pty Ltd; Grace Consulting Pty Ltd v JLB Projects Pty Ltd [2005] NSWSC 836

A defect in the affidavit verifying a statutory demand, specifically expressing belief rather than a positive assertion that the debt is due and payable, is a technicality and does not invalidate the statutory demand. Such defect is curable and not fatal to a winding up application based on failure to comply with the demand.

Jurisdiction
Australia
Judgment Date
24 August 2005
Procedural Posture
Corporations – Winding Up Application / Ruling on Separate Question Concerning Validity of Statutory Demand
Outcome
Declaration that statutory demand is valid. Application for interlocutory relief dismissed.
Legal Topics
['statutory Demands' 'affidavit Verifying Debt' 'defect or Irregularity' 'winding Up in Insolvency']
['corporations Law'] ['statutory Demands' 'affidavit Verifying Debt' 'defect or Irregularity' 'winding Up in Insolvency']

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Procedural Posture

Corporations – Winding Up Application / Ruling on Separate Question Concerning Validity of Statutory Demand

Legal Issues

  1. 1 ["Whether an affidavit accompanying a statutory demand that states 'I believe the debt is due and payable' is sufficient verification under s 459E(3) of the Corporations Act 2001 (Cth)" 'Whether any defect in such affidavit renders the statutory demand invalid or a nullity' 'Effect of affidavit defects on subsequent winding up applications']

Ratio Decidendi

A defect in the affidavit verifying a statutory demand, specifically expressing belief rather than a positive assertion that the debt is due and payable, is a technicality and does not invalidate the statutory demand. Such defect is curable and not fatal to a winding up application based on failure to comply with the demand.

Court Disposition

Declaration that statutory demand is valid. Application for interlocutory relief dismissed.

Orders

  • ["The Court declares that the document entitled 'Statutory Demand' served on the defendant on 7 April 2005 constitutes for the purposes of the present proceedings a valid statutory demand pursuant to s 459E of the Corporations Act." "Order that the applicant pay the respondent's costs of the interlocutory process."]