How estimate may be reduced or revoked—statutory declaration or affidavit
268-40 How estimate may be reduced or revoked—statutory declaration or affidavit
Scope
This section applies as set out in the following table:
Statutory declaration or affidavit | |||
|---|---|---|---|
Item | This section applies if ... | and ... | within ... |
1 | the Commissioner gives you notice of the estimate | you give the Commissioner a statutory declaration for the purposes of this section | (a) 7 days after the Commissioner gives you the notice; or (b) a longer period allowed by the Commissioner. |
2 | you are a party to proceedings before a court that relate to the recovery of the unpaid amount of the estimate | you: (a) file an affidavit for the purposes of this section; and (b) serve a copy on the Commissioner | (a) 14 days after you first take a procedural step as a party to the proceedings; or (b) a longer period allowed by the court. |
3 | (a) the estimate is of the unpaid amount of a liability of a company; and (b) the Commissioner serves on the company a *statutory demand relating to the company’s liability to pay the unpaid amount of the estimate; and (c) an application is made to a court under section 234, 459P, 462 or 464 of the Corporations Act 2001 for the company to be wound up | the company: (a) files an affidavit for the purposes of this section; and (b) serves a copy on the applicant | (a) 14 days after notice of the application was served on the company; or (b) a longer period allowed by the court. |
For the purposes of item 2 of the table, taking a procedural step as a party to proceedings includes entering an appearance, filing a notice of intention to defend, or applying to set aside judgment entered in default of appearance.
Section 459C of the Corporations Act 2001 creates a presumption that a company is insolvent, and may be wound up, if the company fails to comply with a statutory demand.
See section 268‑90 for what the statutory declaration or affidavit must contain and who must make, swear or affirm it.
Reduction
The amount of the estimate is reduced if the statutory declaration is to the effect, or the affidavit verifies facts sufficient to prove, that a specified lesser amount is the unpaid amount of the underlying liability.
Subsection (2) will apply if the statutory declaration etc. is to the effect that the underlying liability has been discharged in full (and therefore the unpaid amount of the liability is nil).
The amount of the reduction is the amount by which the unpaid amount of the estimate (just before the reduction) exceeds the amount specified.
The effect of subsection (3) is to reduce the unpaid amount of the estimate to the amount specified.
Revocation
The estimate is revoked if the statutory declaration is to the effect, or the affidavit verifies facts sufficient to prove, that the underlying liability never existed.
This Act’s bill:Second reading speech
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