The plaintiff (Entech) made an application under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand issued by the defendant (Polytek) on the basis that there was a genuine dispute as to the debt the subject of the demand.
That debt was a judgment debt arising from a default judgment against Entech in the High Court of Malaya at Kuala Lumpur in proceedings brought by Polytek.
The director of Entech gave evidence by affidavit that Entech had never been served with any documents relating to the Malaysian proceedings and that he had not been aware of the Malaysian proceedings until served with the statutory demand: .
The director of Entech gave no evidence about what Entech intended to do in relation to the default judgment, nor any evidence about the procedure of having a default judgment set aside in Malaysia: .
The general manager of Polytek gave evidence by affidavit that Entech had made no application to have the default judgment set aside: .
Entech’s solicitor gave evidence by affidavit, filed after the affidavit of the general manager of Polytek, of steps taken by Entech to have the default judgment set aside: .
Polytek’s defence ‘really rest[ed] on [Entech’s] failure in [its director’s] affidavit to say that Entech intend[ed] to apply in Malaysia to have the judgment set aside’: .
An affidavit made under s 459G(3)(a) of the Corporations Act 2001 (Cth) must do more than merely assert that there is a genuine dispute as to the debt the subject of a statutory demand, and a supplementary affidavit sworn or affirmed outside the 21 day period provided in s 459G(3) of the Corporations Act 2001 (Cth) cannot raise any new grounds of objection: -.
In the present case, the affidavit sworn by Entech’s director provided evidence as to the lack of service of documents in relation to the Malaysian proceedings and as to the dispute which would arise in contested proceedings. Master Sanderson found that these matters were sufficient to ground a finding that there was a genuine dispute as to the debt: .
The statutory demand was set aside.
Relevant paragraphs of Ford
[27.062], [27.063], [27.066]