- On 26 July 1996, Gas & Fuel Corp Superannuation Fund (“Gas & Fuel“) served on Graywinter Properties Pty Ltd (“Graywinter“) a statutory demand under s 459E of the Corporations Law.
- The demand stated that the applicant owed the respondent $127,500.00 for a judgment debt, and required the applicant within 21 days to pay the amount or secure or compound for the debt to Gas & Fuel’s reasonable satisfaction.
- On 15 August 1996, Graywinter filed an application to set aside the statutory demand and an affidavit sworn by Garrick Lewis Gray purporting to be “in support of” the application.
- S459H of the Corporations Law required the supporting affidavit to set out the evidence for the grounds that the demand should be set aside.
- The affidavit was short and stated that Mr Gray believed the judgment “was entered erroneously and have given instructions for an application to be made to set aside the judgment.“
- At the first return date before the Registrar, Graywinter wanted to adduce more evidence. Gas & Fuel objected. The question of whether there was a valid application before the Court and whether Graywinter should have further time to file supplementary material was referred to a Judge.
- Was there a valid application to set aside judgment and should Graywinter be permitted to file supplementary material?
- Sundberg J held that the requirement in s 459G(3) that the affidavit supporting the application to set aside the demand was required to disclose “material facts” on which the alleged debtor intends to rely to show that there is a genuine dispute between the parties.
- It is not open for a plaintiff to introduce at a hearing a new ground not supported by the affidavit filed in support of the application.
“In order to be a “supporting affidavit”, an affidavit must say something that promotes the company’s case. An affidavit which merely says “I am a director of the company but am too busy at present to make a full affidavit, and I will do so later” would not support the application. It would in no way advance, further or assist the company’s cause, which is to have the notice set aside. At the other extreme, the affidavit need not detail, in admissible form, all the evidence that supports the contention of a genuine dispute: John Holland. That evidence must be available at the hearing of the application to set aside, because that application is for final and not interlocutory relief: 71 Paisley Street.
In a s 459H(1)(a) case, the affidavit must in my view disclose facts showing there is a genuine dispute between the parties. A mere assertion that there is a genuine dispute is not enough. Nor is a bare claim that the debt is disputed sufficient. It follows from the fact that the affidavit need not go into evidence, which is the customary function of an affidavit, that it may read like a pleading.”
(Sundberg J (emphasis added))
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