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Fortrus Pty Ltd v Barraigh Pty Ltd; Fortrus Pty Ltd v Mosman Services Pty Ltd [2010] QSC 478

by Martha.Ware 2. February 2011 09:06


This matter included two proceedings with the same applicant but two different respondents. In each, a statutory demand had been served by the relevant respondent on the applicant on 21 September 2010.


In each proceeding, there was a preliminary question as to whether the affidavit filed with each originating application (the affidavit) supported the application, as required by s 459G(3)(a) of the Corporations Act: at [3].


The affidavit asserted the deponent's belief that there was a genuine dispute as to the amount of the debt in relation to each statutory demand: at [27]. This belief was said to be on the basis of reasons set out in the affidavit.


Mullins J referred to the authorities, particularly Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452, 459 (Graywinter), and noted that the Court would not have jurisdiction to set aside the statutory demand if the affidavit purported to comply with s 459G(3)(a) of the Corporations Act merely stated that there was a genuine dispute as to the debt – it was necessary for the affidavit to disclose facts to support that assertion: at [29]–[30].


Her Honour found that the affidavit "sufficiently asserted the matters that relate[d] to" one ground of dispute such that it satisfied s 459G(3)(a) of the Corporations Act by virtue of the test in Graywinter: at [34]. In order to make that finding, her Honour relied on an inference drawn from exhibits and assertions in the affidavit that the deponent had the authority to make the assertions he made, even though he did not give explicit evidence of that authority.


Her Honour found that the affidavit did not satisfy s 459G(3)(a) of the Corporations Act in relation to the other ground on which the affidavit asserted that there was a genuine dispute as to the debt, as there was no evidence to the terms of the agreement asserted in that regard: at [35].


Mullins J was then required to consider whether there was a genuine dispute as to the debts the subject of the statutory demands: at [4].


Her Honour outlined the evidence and then noted that the role of the court in determining an application to set aside a statutory demand is to determine whether there is a genuine dispute as to the debt, not to decide the dispute itself: at [53].



Her Honour held that there was a genuine dispute (at [56]) as to each debt for a number of reasons, including the lack of correspondence between each invoice and its respective consultancy agreement and the applicant's denial as to the provision of services by the respondents (at [54]), and that, although the applicant's conduct was such that it "should not, in the normal course, be rewarded", the respondents had not made a clear case for payment of the debts (at [55]).



Relevant paragraphs of Ford

[27.062], [27.063], [27.066]


Ford's Principles of Corporations Law


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