In the matter of Nanevski Developments Pty Limited (No 2) [2019] NSWSC 1217

In the matter of Nanevski Developments Pty Limited (No 2) [2019] NSWSC 1217

The statutory demand was set aside because the verifying affidavit was sworn two days prior to the demand, rendering it non-compliant with section 459E(3) of the Corporations Act 2001 (Cth). According to well-established authority, such non-compliance constitutes 'some other reason' for setting aside the demand under section 459J(1)(b). No updating affidavit was timely served to cure the defect, and the proper outcome is to set aside the demand regardless of whether substantial injustice is established.

Jurisdiction
Australia
Judgment Date
16 September 2019
Procedural Posture
Application to Set Aside Statutory Demand / Principal Judgment
Outcome
Statutory demand set aside
Legal Topics
['winding Up' 'statutory Demand' 'affidavit Verification' 'setting Aside Statutory Demand' 'costs']
['corporations Law'] ['winding Up' 'statutory Demand' 'affidavit Verification' 'setting Aside Statutory Demand' 'costs']

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Procedural Posture

Application to Set Aside Statutory Demand / Principal Judgment

Legal Issues

  1. 1 ['Whether the affidavit verifying the statutory demand, sworn two days before the demand was issued, renders the demand liable to be set aside under section 459J(1)(b) of the Corporations Act 2001 (Cth)']

Ratio Decidendi

The statutory demand was set aside because the verifying affidavit was sworn two days prior to the demand, rendering it non-compliant with section 459E(3) of the Corporations Act 2001 (Cth). According to well-established authority, such non-compliance constitutes 'some other reason' for setting aside the demand under section 459J(1)(b). No updating affidavit was timely served to cure the defect, and the proper outcome is to set aside the demand regardless of whether substantial injustice is established.

Court Disposition

Statutory demand set aside

Orders

  • ['Pursuant to section 459J(1)(b) of the Corporations Act 2001 (Cth), set aside the statutory demand issued by the defendant dated 29 March 2019.' 'Vacate Order 2 made on 16 July 2019.' 'Make no order as to the costs of these proceedings.' 'Grant liberty to the defendant, within seven days, to vary Order 3 by...