McDermott Projects Pty Ltd v Chadwell Pty Ltd

[2001] QSC 322

Supreme Court of Queensland

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For Australian Law.

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Interrogate

Catchwords

1. Corporations
2. › Winding up
3. › Statutory demand
4. › Verification requirements
5. › Whether affidavit sworn before date of demand satisfies s 459E(3)
6. › Whether non-concurrence of dates constitutes defect under s 459J
7. › Whether substantial injustice caused
8. › Corporations Act 2001 (Cth), ss 459E(3), 459J
1. Corporations
2. › Winding up
3. › Statutory demand
4. › Application to set aside
5. › Whether amount claimed excessive
6. › Mortgage covenant defining 'secured money'
7. › Corporations Act 2001 (Cth), s 459J(1)(b)
1. Mortgages
2. › Covenants
3. › Payment of secured money
4. › Whether agreement for payment of interest existed
5. › Whether mortgagee entitled to rely on agreement in serving notice to remedy default
6. › Property Law Act 1974 (Qld)
1. Contract
2. › Formation
3. › Offer and acceptance
4. › Whether concluded agreement to extend mortgage reached
5. › Whether offer accepted by conduct
6. › Whether conditions of offer met
7. › Whether third party agreement required

Quick Take

A four-day gap between the date of the verifying affidavit and the date of service of a statutory demand does not invalidate the demand; it constitutes a 'defect' under s 459J of the Corporations Act 2001 which will not justify setting aside the demand where no substantial injustice is caused. This departs from the approach taken by [name withheld] in Technology Licensing v Climit. The amount claimed in a statutory demand may be based on the mortgagor's personal covenant and the definition of 'secured money' therein, rather than the face amount of the mortgage.