In the matter of Hoatson Maxwell (No. 1) Pty Limited [2012] NSWSC 563

In the matter of Hoatson Maxwell (No. 1) Pty Limited [2012] NSWSC 563

The Plaintiff could not rely on the alleged defect that the statutory demand was verified by a solicitor without the relevant basis for belief because that ground was not raised, expressly or by necessary or reasonably available inference, in an affidavit filed and served within the 21 day period required by s 459G. The only deficiency arguably raised by the first affidavit was that the demand as served was incomplete, but that contention failed because the later affidavit showed the demand and supporting affidavit had in fact been served complete. The genuine dispute ground remained to be determined.

Jurisdiction
Australia
Judgment Date
07 May 2012
Procedural Posture
Application to Set Aside a Statutory Demand / Interlocutory Application
Outcome
Argument that the statutory demand should be set aside for defect in the supporting affidavit was not open to the Plaintiff; the matter was to be listed for argument on whether a genuine dispute exists as to the debt; costs reserved.
Legal Topics
['statutory Demand' 'application to Set Aside Statutory Demand' 'supporting Affidavit' 'genuine Dispute' 'defect Causing Substantial Injustice or Other Reason Under S 459 J']
['corporations' 'winding Up'] ['statutory Demand' 'application to Set Aside Statutory Demand' 'supporting Affidavit' 'genuine Dispute' 'defect Causing Substantial Injustice or Other Reason Under S 459 J']

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Procedural Posture

Application to Set Aside a Statutory Demand / Interlocutory Application

Legal Issues

  1. 1 ['Whether the Plaintiff could rely on an alleged defect in the affidavit supporting the statutory demand when that ground was not identified in an affidavit filed and served within the 21 day period under s 459G of the Corporations Act 2001 (Cth).' 'Whether the alleged incomplete service of the statutory demand and supporting affidavit could support setting aside the demand.' 'Whether the remaining ground of a genuine dispute as to the debt should be determined separately.']

Ratio Decidendi

The Plaintiff could not rely on the alleged defect that the statutory demand was verified by a solicitor without the relevant basis for belief because that ground was not raised, expressly or by necessary or reasonably available inference, in an affidavit filed and served within the 21 day period required by s 459G. The only deficiency arguably raised by the first affidavit was that the demand as served was incomplete, but that contention failed because the later affidavit showed the demand and supporting affidavit had in fact been served complete. The genuine dispute ground remained to be determined.

Court Disposition

Argument that the statutory demand should be set aside for defect in the supporting affidavit was not open to the Plaintiff; the matter was to be listed for argument on whether a genuine dispute exists as to the debt; costs reserved.

Orders

  • ['Argument that the statutory demand should be set aside for defect in the supporting affidavit not open to the applicants.' 'Matter listed for argument as to whether a genuine dispute exists as to the debt the subject of the statutory demand.' 'Costs reserved.']