Main Camp v Australian Rural

[2002] NSWSC 219

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. Corporations
2. › Winding up
3. › Statutory demand — defects
1. Corporations
2. › Winding up
3. › Statutory demand — accompanying affidavit — verification that debt is due and payable
1. Corporations
2. › Winding up
3. › Statutory demand — setting aside — s.459J(1)(a) substantial injustice
1. Corporations
2. › Winding up
3. › Statutory demand — setting aside — s.459J(1)(b) some other reason

An affidavit accompanying a statutory demand must verify that the debt is 'due and payable' — a statement that the debtor 'is indebted' or 'owes' a sum asserts only the existence of a debt and does not convey that the obligation is presently due or payable; failure to convey this message (whether in those words or equivalent language) constitutes a defect activating s.459J(1)(b) as 'some other reason' to set aside the demand.
Where a statutory demand contains internally inconsistent amounts (here, a 'grand total' of $1,150,079 and a 'total amount' of $57,470.89), this constitutes a defect causing substantial injustice under s.459J(1)(a), as the recipient cannot know with certainty how much it is expected to pay; pre-existing knowledge from correspondence does not cure such ambiguity.
A defect in the accompanying affidavit (as distinct from the demand itself) cannot be attacked under s.459J(1)(a) but may ground setting aside under s.459J(1)(b), following Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd.