JSBG Developments Pty Ltd v Kozlowski [2009] NSWSC 1128

JSBG Developments Pty Ltd v Kozlowski [2009] NSWSC 1128

The failure to comply with the requirement for filing an affidavit verifying a director's authority for company litigation at commencement constitutes a procedural irregularity which, under s 1322(2) and s 467A of the Corporations Act, does not invalidate proceedings unless substantial injustice is or may be caused. As no such injustice is established, and as the proceedings were served within New South Wales, the proceedings are validly constituted and compliance with the Service and Execution of Process Act was unnecessary.

Jurisdiction
Australia
Judgment Date
27 October 2009
Procedural Posture
Civil Proceeding (corporations Act Statutory Demand) / Determination of Separate Questions Prior to Substantive Hearing
Outcome
Separate questions answered: (1) Yes; (2) Not necessary to answer; (3) No. Proceedings are validly constituted.
Legal Topics
['statutory Demand' 'procedural Irregularity' 'company Litigation Procedure' 'service of Process']
['corporations Law' 'civil Procedure'] ['statutory Demand' 'procedural Irregularity' 'company Litigation Procedure' 'service of Process']

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Procedural Posture

Civil Proceeding (corporations Act Statutory Demand) / Determination of Separate Questions Prior to Substantive Hearing

Legal Issues

  1. 1 ['Whether proceedings are validly constituted when a company commences proceedings by originating process signed by its sole director without a solicitor and without filing an affidavit under rule 7.2(1) at commencement' 'Whether subsequent filing of affidavit pursuant to rule 7.2(1) rectifies any defect' 'Whether service and compliance with the Service and Execution of Process Act 1992 (Cth) was necessary where defendant was resident outside but served within New South Wales']

Ratio Decidendi

The failure to comply with the requirement for filing an affidavit verifying a director's authority for company litigation at commencement constitutes a procedural irregularity which, under s 1322(2) and s 467A of the Corporations Act, does not invalidate proceedings unless substantial injustice is or may be caused. As no such injustice is established, and as the proceedings were served within New South Wales, the proceedings are validly constituted and compliance with the Service and Execution of Process Act was unnecessary.

Court Disposition

Separate questions answered: (1) Yes; (2) Not necessary to answer; (3) No. Proceedings are validly constituted.

Orders

  • ['Question 1: In the absence of the filing of an affidavit as referred to in rule 7.2(1), proceedings are validly constituted.' 'Question 2: Not necessary to answer.' 'Question 3: Compliance with the Service and Execution of Process Act 1992 (Cth) was not necessary.']