McPherson Project Services Pty Ltd v Nine2Three Employment Solutions Pty Ltd [2008] NSWSC 384

McPherson Project Services Pty Ltd v Nine2Three Employment Solutions Pty Ltd [2008] NSWSC 384

The document relied on by the plaintiff did not show on its face that it was sworn before an authorised official and no extrinsic evidence of due swearing was adduced, so it was not an affidavit. Because s 459G(3)(a) required a supporting affidavit to be filed within the statutory period and non-compliance could not be cured, the application to set aside the statutory demand had to be dismissed. The alleged irregularities also did not produce relevant injustice and the material disclosed no facts showing a genuine dispute.

Jurisdiction
Australia
Judgment Date
28 April 2008
Procedural Posture
Application Under S 459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Hearing of Application
Outcome
Application dismissed with costs.
Legal Topics
['winding Up' 'statutory Demand' 'application to Set Aside Statutory Demand' 'supporting Affidavit Under S 459 G(3)(a)' 'irregularity Under S 459 J' 'genuine Dispute Under S 459 H' 'service of Statutory Demand']
['corporations Law'] ['winding Up' 'statutory Demand' 'application to Set Aside Statutory Demand' 'supporting Affidavit Under S 459 G(3)(a)' 'irregularity Under S 459 J' 'genuine Dispute Under S 459 H' 'service of Statutory Demand']

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Procedural Posture

Application Under S 459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Hearing of Application

Legal Issues

  1. 1 ['Whether the plaintiff had filed an affidavit supporting the s 459G application within the meaning of s 459G(3)(a).' 'Whether alleged irregularities in service and documents justified setting aside the statutory demand under s 459J.' 'Whether the plaintiff showed a genuine dispute about the existence or amount of the debt under s 459H.']

Ratio Decidendi

The document relied on by the plaintiff did not show on its face that it was sworn before an authorised official and no extrinsic evidence of due swearing was adduced, so it was not an affidavit. Because s 459G(3)(a) required a supporting affidavit to be filed within the statutory period and non-compliance could not be cured, the application to set aside the statutory demand had to be dismissed. The alleged irregularities also did not produce relevant injustice and the material disclosed no facts showing a genuine dispute.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application for an order setting aside the statutory demand is dismissed with costs.']