• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Legislation Cited: Corporations Act 2001 (Cth) ss 110C, 110D, 459E, 459G, 467A
Service and Execution of Process Act 1992 (Cth) ss 9, 15

Cases Cited: Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538
Beralt Pty Ltd v Joe Battaglia Plastering Pty Ltd [2001] 1 Qd R 232; [1999] QSC 202
Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344
CGI Information Systems v APRA Consulting Pty Ltd (2003) 47 ACSR 100; [2003] NSWSC 728
Clough Projects Australia Pty Ltd v Elecnor Australia Pty Ltd [2026] NSWCA 111
Creata (Aust) Pty Ltd v Faull (2017) 125 ACSR 212; [2017] NSWCA 300
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43
Elan Copra Trading Pty Ltd v J K International Pty Ltd (2005) 226 ALR 349; [2005] SASC 501
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Galaxidis v Galaxidis [2004] NSWCA 111
Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd (2019) 99 NSWLR 397; [2019] NSWCA 60
In the matter of 8D Pty Ltd [2013] NSWSC 1297
In the matter of B&B Legal Pty Ltd trading as Borthwick and Butler Solicitors [2025] NSWSC 587
In the matter of Black Tie Holdings Pty Ltd [2022] NSWSC 781
In the matter of International Materials & Technologies Pty Ltd (2013) 282 FLR 362; [2013] NSWSC 787
In the matter of Leasing Holdings Pty Ltd (formerly Charlie Lovett Pty Ltd) [2015] NSWSC 771
In the matter of Precise Training Pty Limited [2018] NSWSC 1383
In the matter of Riverina Solar Pty Ltd (2024) 387 FLR 101; [2024] NSWSC 480
In the matter of Urban Solutions Group Pty Ltd [2015] NSWSC 1940
In the matter of Wollongong Coal Limited; In the matter of Wongawilli Coal Pty Ltd; In the matter of Wollongong Coal Limited (2015) 110 ACSR 134; [2015] NSWSC 1680
Kookaburra Educational Resources Pty Limited v MacGear Limited Partnership trading as MacGear Australia, in the matter of Kookaburra Educational Resources Pty Limited [2021] FCA 797
Ligon 158 Pty Ltd v Huber (2016) 117 ACSR 495; [2016] NSWCA 330
Maybury v Plowman (1913) 16 CLR 468; [1913] HCA 43
Panel Tech Industries (Australia) Pty Ltd v Australian Skyreach Equipment Pty Ltd (No 2) [2003] NSWSC 896
Priestley v Priestley [2017] NSWCA 155
PrimeSpace Property Investment v Vienne Pty Ltd [2015] FCA 326
Re Lifestyle Residences Hobsons Bay Pty Ltd (recs & mgrs apptd) [2023] VSC 179
Seward v The Vera Cruz (1884) 10 App Cas 59
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466
Slap Corporation Pty Ltd v Civil, Infrastructure & Logistics Pty Ltd (2017) 50 VR 542; [2017] VSC 168
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452; [1997] FCA 681
SP Hay Pty Ltd v David Gray and Co Pty Ltd (2019) 133 ACSR 504; [2019] SASC 6
Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2010] NSWSC 776
Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 149
TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67; [2008] VSCA 70
Zhang v Shanghai Wool and Jute Textile Co Ltd (2006) 201 FLR 178; [2006] VSCA 133

Texts Cited: Explanatory Memorandum, Treasury Laws Amendment (Modernising Business Communications and Other Measures) Bill 2022 (Cth)
G E Dal Pont, Law of Agency (4th ed, 2020)
House of Representatives, Treasury Laws Amendment (Modernising Business Communications and Other Measures) Bill 2022, Second Reading Speech, 23 November 2022
P Herzfeld and T Prince, Interpretation (3rd ed, 2024)
S Wilken and T Villiers, The Law of Waiver, Variation and Estoppel (2nd ed, 2002)

Category: Principal judgment

Parties: Proceeding 2026/90750
GW Capital No. 2 Pty Ltd (Plaintiff)
Mark Andrew Mackenzie (First Defendant)
Jane Alison Mackenzie (Second Defendant)
Mackenzie Holding Company Pty Ltd trading as ATF Mackenzie Superannuation Fund (Third Defendant)
Proceeding 2026/119158
GW Capital No. 2 Pty Ltd (Plaintiff)
Tony Mackenzie (First Defendant)
MACA Australia Pty Ltd (Second Defendant)
Proceeding 2026/119167
GW Capital No. 2 Pty Ltd (Plaintiff)
Peter Mackenzie (First Defendant)
Wendy Mackenzie (Second Defendant)
WAPA SF Pty Ltd (Third Defendant)

Representation: Counsel:
Proceeding 2026/90750:
I King (Plaintiff)
M Rose and N Andrews (Defendants)
Proceeding 2026/119158 and 2026/119167:
I King (Plaintiff)
L Rich and S Rahimi (Defendants)
Solicitors:
Proceeding 2026/90750:
Connor & Co Lawyers (Plaintiff)
Griffins Lawyers (Defendants)
Proceedings 2026/119158 and 2026/119167:
Connor & Co Lawyers (Plaintiff)
Arnold Bloch Leibler (Defendants)

File Number(s): 2026/90750
2026/119158
2026/119167

Publication restriction: Nil

JUDGMENT

1. In these three related proceedings, the Plaintiff, GW Capital No 2 Pty Ltd, seeks orders setting aside three statutory demands which were issued by members of the Mackenzie family and which claimed debts said to be owing under a Settlement Deed dated 25 March 2025. For convenience, and without intending any disrespect, I will refer to the members of the Mackenzie family by their first names.

2. Proceeding 2026/119158 relates to a statutory demand issued by Mr Tony Mackenzie and MACA Australia Pty Ltd and dated 27 February 2026 (the Tony Statutory Demand). MACA is the trustee of Tony’s superannuation fund.

3. Proceeding 2026/119167 relates to a statutory demand issued by Mr Peter Mackenzie, Ms Wendy Mackenzie and WAPA SF Pty Ltd and dated 27 February 2026 (the P&W Statutory Demand). Peter and Wendy are married, and are the parents of Tony. WAPA is the trustee of Peter’s and Wendy’s superannuation fund.

4. Proceeding 2026/90750 relates to a statutory demand issued by Mr Mark Mackenzie, Ms Jane Mackenzie and Mackenzie Holding Company Pty Ltd (MHC) and dated 9 February 2026 (the M&J Statutory Demand). Mark and Jane are married, and MHC is the trustee of their superannuation fund. Mark is the brother of Tony, and the son of Peter and Wendy.

5. GW Capital sought to set aside each of the statutory demands on the basis that there was a genuine dispute as to the debts claimed in the statutory demands: s 459H(1)(a) of the Corporations Act 2001 (Cth).

6. GW Capital did not dispute that it had entered into the Settlement Deed and that it had failed to make payments in accordance with the Settlement Deed, but identified the following two matters as giving rise (separately or together) to a genuine dispute about the debts claimed in the Statutory Demands:

7. first, the Mackenzie parties were estopped from enforcing any rights under the Settlement Deed, by reason of a representation made by Mark on 18 February 2025; and

8. secondly, the Mackenzie parties had, by Tony’s words or conduct, waived the right to insist on compliance by GW Capital with the Schedule to the Settlement Deed which specified the dates for various payments to be made by GW Capital.

9. In addition, GW Capital submitted that it had a genuine offsetting claim against Mark. However, as outlined below, GW Capital did not articulate the legal basis for any such offsetting claim.

10. Finally, there was an issue as to whether the Originating Process in respect of the M&J Statutory Demand had been served within the time prescribed for bringing an application under s 459G of the Corporations Act. In the event that the Court found that the s 459G application had not been served within time, GW Capital sought, in the alternative, a declaration that the M&J Statutory Demand was null and void.

The Tony Statutory Demand and the P&W Statutory Demand

9. The issues that arise in the proceedings concerning the Tony Statutory Demand and the P&W Statutory Demand are identical.

10. Each of those statutory demands claimed amounts said to be due and payable under the Settlement Deed.

The Settlement Deed

11. GW Capital is the trustee and investment manager of the GW Capital Global Opportunities Fund (the GW Capital Fund). The GW Capital Fund is a unit trust.

12. The sole director of GW Capital is Mr Matthew Hegarty, who was a family friend of the Mackenzies.

13. In the period from 2016 to 2022, members of the Mackenzie family and their associated superannuation vehicles invested in the GW Capital Fund. The recitals to the Settlement Deed record that, as at the date of entry into that document, they were registered owners of units in the GW Capital Fund in the following approximated values:

14. Tony held $1.3m personally and his superannuation vehicle (MACA) held a further $1m;

15. Mark and Jane held $3.35m personally and their superannuation vehicle (MHC) held a further $1.3m; and

16. Peter and Wendy held $1.5m personally and their superannuation vehicle (WAPA) held a further $0.6m.

17. The Settlement Deed is dated 25 March 2025. The parties to the Settlement Deed are Mr Hegarty, GW Capital, Tony, Mark, Jane, Peter and Wendy, and their respective superannuation vehicles (MACA, MHC and WAPA).

18. The recitals record that the Settlement Deed was entered in circumstances where the Mackenzie parties had made, and GW Capital had failed to meet, requests for the redemption of their units in the GW Capital Fund:

“5. Requests for redemption of the Investors’ units have been made, jointly and separately, by each of the Investors, in the period from June 2024 to date.

6. GW Capital’s failure to meet the redemption requests as required, and its conduct more generally, has been the subject of extensive correspondence between the parties. In that correspondence, the Investors have alleged that GW Capital has breached its duties as trustee by failing to meet the redemption requests as required and that it, and Matthew, have engaged in misleading and deceptive conduct, which has resulted in the Investors suffering loss including by reason of interest which they have paid on loans, the discharge of which was intended to be made from funds received from the redemption of their units in GW Capital (Dispute).

7. GW Capital, through Matthew, has denied any wrongdoing and represented that the redemption requests will be met. The only payments which have been made in response to those redemption requests are two payments of $150,000 and $100,000 to Tony in or around November 2024 and February 2025, and one payment to Mark and Jane for $100,000 in or around February 2025. The redemption requests otherwise remain outstanding.

8. In December 2024, Matthew, on behalf of GW Capital, made an offer, which was accepted by the Investors, to pay (in addition to redemption payments) a total sum of $75,000 to the Investors by way of compensation for losses incurred by them by reason to GW Capital’s delay in meeting the redemption requests as required.

9. On 24 February 2025, Tony, by a letter from Arnold Bloch Leibler dated the same date, demanded that GW Capital redeem the units in GW Capital that were the subject of the redemption requests without further delay, and enclosed redemption requests for the balance of Tony’s and his associated entities’ investments in the Fund.

10. GW Capital seeks to provide the Investor with as much assurance as possible that their redemption requests will be met as quickly as is reasonably possible and has agreed to the payments to the Investors totalling $9,050,000.00 in accordance with the schedule of payments as set out in clause 2 of this Deed.

11. To avoid the costs, inconvenience and uncertainty of litigation, the parties have agreed to settle the Dispute on the terms set out in this Deed without any admission of liability by any Party.”

16. Clauses 2.1-2.2 of the Settlement Deed provided as follows:

“2.1 In consideration for the releases set out in this Deed, GW Capital will pay (and Matthew must procure that GW Capital pays) to the Investors the sum of $9.05 million in instalments on the dates set out in Schedule 1 (Redemption payment instalments) in full and final settlement of the Dispute.

2.2 Each Redemption payment instalment must be received in cleared funds by no later than the date stipulated in Schedule 1 for each such redemption payment instalment, and to the bank accounts nominated in each original redemption request made by Investor.”

17. Schedule 1, which was headed “Redemption Payment Requirements”, provided as follows:

| Claimant | Amount Due and Date (This represents the minimum amounts required by these dates. Payments later than these dates or smaller than the amounts stipulated will enliven the rights set out in clause 5 of this Deed) | | | 31****st March 2025 | 30****th April 2025 | 31****st May 2025 | 30****th June 2025 | | Tony Mackenzie in his personal capacity and as trustee for the Mackenzie Family Trust, and his capacity as director of MACA Australia Pty Ltd (ACN 624 325 275) as trustee for the MACA Superannuation Fund | $100,000 | $500,000 | $500,000 | An amount representing the value of the balance of the units held by Tony and/or the Tony Super Funds in the Fund as at 30 June 2025. | | Mark and Jane Mackenzie in their personal capacities and as trustees for the Mackenzie Family Trust and their capacity as directors of the Mackenzie Holding Company (ACN 619 757 283) as trustee for the Mackenzie Superannuation Fund | $100,000 | $500,000 | $500,000 | An amount representing the value of the balance of the units held by Mark and Jane and/or the Mark and Jane Super Funds in the Fund as at 30 June 2025. | | Peter and Wendy Mackenzie in their personal capacities and their capacity as directors of WAPA SF Pty Ltd (ACN 635 434 794) as trustee for the Wendy and Peter Super Fund | | $300,000 | $500,000 | An amount representing the value of the balance of the units held by Peter and Wendy and/or the Wendy and Peter Fund in the Fund as at 30 June 2025. |

18. The reference in the opening row of this Schedule to “clause 5” of the Settlement Deed is patently an error. Clause 5 provides that the parties make no admission of liability. It is obvious that the parties intended to refer to cl 6, which is headed “Default”, and which addresses the consequences of a failure to pay the amounts set out in Sch 1 by the stipulated dates.

19. Clause 3 is headed “Releases”. Clause 3.1 of the Settlement Deed provided as follows:

“3.1 On and from the Completion Date, each of the Investors irrevocably and unconditionally release and forever discharge GW Capital and Matthew from all or any Claims which the Investors have or but for the execution of this Deed may have had against GW Capital and Matthew in relation to the matters the subject of the Dispute.”

20. The “Completion Date” is defined as the date on which all of the Redemption payment instalments referred to in cl 2.1 (and set out in Sch 1) “have been received in full … by all investors”.

21. The Settlement Deed also included the following provisions:

“10.1 Paramountcy of Deed

If this Deed conflicts with any other document, agreement or arrangement, this Deed prevails to the extent of this inconsistency.

…

10.4 Amendment

This Deed may not be amended or varied unless the amendment or variation is in writing signed by all Parties.

10.5 Entire agreement

This Deed constitutes the entire agreement between the Parties in relation to the Dispute. All discussions, undertakings, agreements, representations, warranties and indemnities giving rise to Dispute, made in connection with the Dispute or relating to the settlement of it are replaced by this Deed and have no further effect.

…

10.8 Waiver

Waiver of any power or right under the Deed:

(a) must be in writing signed by the Party entitled to the benefit of that power or right; and

(b) is effective only to the extent set out in that written waiver.”

22. On 31 March 2025, GW Capital made the two payments of $100,000 which are set out in Sch 1 to the Settlement Deed as being payable on that date.

23. In the period from April to June 2025, GW Capital paid an additional $375,000 to Tony and an additional $325,000 to Peter and Wendy. No further payments have been paid to any of them since 23 June 2025.

The issuing of the Tony Statutory Demand and the P&W Statutory Demand

24. On 27 February 2026, Tony and MACA issued the Tony Statutory Demand, claiming a debt of $1,996,230. This debt was stated to be the amount owing by GW Capital to Tony and MACA pursuant to the Settlement Deed.

25. One of the amounts payable to Tony and MACA pursuant to Sch 1 to the Settlement Deed was a payment on 30 June 2025 of the “value of the balance of the units held by Tony and/or the Tony Super Funds in the [GW Capital] Fund as at 30 June 2025” (see paragraph [17] above). Tony and MACA calculated the amount of this payment by reference to the distribution statements issued by GW Capital in December 2025, which recorded the value of the units held by Tony and MACA as at 30 June 2025. GW Capital did not, in its submissions, raise any dispute about the quantification of this element of the debts claimed in the Tony Statutory Demand.

26. On 27 February 2026, Peter, Wendy and WAPA issued the P&W Statutory Demand, claiming a debt of $2,475,274. This debt was stated to be the amount owing by GW Capital to Peter, Wendy and WAPA pursuant to the Settlement Deed.

27. One of the amounts payable to Peter, Wendy and WAPA pursuant to Sch 1 of the Settlement Deed was the “value of the balance of the units held by Peter and Wendy and/or the Wendy and Peter Fund in the [GW Capital] Fund as at 30 June 2025” (see paragraph [17] above). Peter, Wendy and WAPA calculated the amount of this payment by the same methodology as used for the Tony Statutory Demand (and, again, GW Capital did not raise any issue in its submissions regarding that calculation).

28. It was common ground that the P&W Statutory Demand failed to take account of a payment of $150,000 which was made to Peter on 13 May 2025. Accordingly, the parties agreed that, if the P&W Statutory Demand is not set aside, the debt claimed in the Statutory Demand should be varied from “$2,475,274” to “$2,325,275” in order to take account of this payment.

29. On 23 March 2026, GW Capital commenced the proceedings in respect of the Tony Statutory Demand and the P&W Statutory Demand. As noted above, it was common ground that each of those proceedings was commenced and served within time.

Relevant principles – Genuine Dispute

30. The relevant principles were not in dispute.

31. In Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452 at 464; [1997] FCA 681, the Full Court of the Federal Court observed that a genuine dispute must be bona fide and truly exist in fact, and that the grounds for the dispute must be real and not spurious, hypothetical, illusory or misconceived.

32. The threshold to establish a genuine dispute is not high. The task faced by a company in challenging a statutory demand on the genuine dispute ground “is by no means … a difficult or demanding one”: CGI Information Systems v APRA Consulting Pty Ltd (2003) 47 ACSR 100; [2003] NSWSC 728 at [16] (Barrett J).

33. In Panel Tech Industries (Australia) Pty Ltd v Australian Skyreach Equipment Pty Ltd (No 2) [2003] NSWSC 896 at [18], Barrett J said:

“Once the company shows that even one issue has a sufficient degree of cogency to be arguable, a finding of genuine dispute must follow. The Court does not engage in any form of balancing exercise between the strengths of competing contentions. If it sees any factor that, on rational grounds, indicates an arguable case on the part of the company, it must find that a genuine dispute exists, even where any case apparently available to be advanced against the company seems stronger.”

34. In Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344, the Court of Appeal reviewed the relevant authorities and observed (at [36]) that “there must be evidence that satisfies the court that there is ‘a serious question to be tried’, or ‘an issue deserving of hearing’, or a ‘plausible contention requiring investigation’”. The Court emphasised (at [38]) that the issue in such a proceeding is “not whether a debt to which the statutory demand relates is owed”, but rather “whether there is a genuine dispute about whether a debt is owed”. The Court added (at [47]) that “the court’s concern [is] to determine whether there [is] plausible evidence to establish the existence of a genuine dispute, not whether the evidence [is] disputed or even likely to be accepted on a final hearing of any such claim.”

35. Where a company contends that a genuine dispute exists, “it is not necessary for the company to advance ‘a fully evidenced claim’” and “something between mere assertion and the proof that would be necessary in a court of law may suffice”: Creata (Aust) Pty Ltd v Faull (2017) 125 ACSR 212; [2017] NSWCA 300 at [41] per Barrett AJA (with whom Gleeson and White JJA agreed), referring to TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67; [2008] VSCA 70 at [71] per Dodds-Streeton JA (with whom Neave and Kellam JJA agreed).

36. While the expression “genuine dispute” connotes “a plausible contention requiring investigation”, it does not mean that the Court “must accept uncritically … every statement in an affidavit ‘however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be’ … or ‘a patently feeble legal argument or an assertion of facts unsupported by evidence’”: Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 787 (McLelland CJ in Eq), quoted with approval by Bell P (as his Honour then was) in Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd (2019) 99 NSWLR 397; [2019] NSWCA 60 at [63].

37. In Ligon 158 Pty Ltd v Huber (2016) 117 ACSR 495; [2016] NSWCA 330 at [8], Barrett AJA (with whom McColl and Meagher JJA agreed) endorsed the following summary of the applicable principles (based on Black J’s judgment in In the matter of Wollongong Coal Limited; In the matter of Wongawilli Coal Pty Ltd; In the matter of Wollongong Coal Limited (2015) 110 ACSR 134; [2015] NSWSC 1680 at [9]-[22]):

“(1) A dispute is ‘genuine’ if it is not ‘plainly vexatious or frivolous’ or ‘may have some substance’ or ‘involves a plausible contention requiring investigation’. A genuine dispute requires that it be bona fide and, to that effect, be premised on sufficiently particularised grounds that are ‘real and not spurious, hypothetical, illusory or misconceived’ and which demonstrate the dispute’s ‘objective existence’ and ‘prima facie plausibility’.

(2) The test is governed by principles analogous to those which underpin an application for an interlocutory injunction or summary judgment. The court must, however, guard against setting the threshold too low for that is liable to defeat the legislative purpose of the section.

(3) The task faced by a company challenging a statutory demand on the genuine dispute ground is by no means at all a difficult or demanding one. Once the company shows that even one issue has a sufficient degree of cogency to be arguable, a finding of genuine dispute must follow and the demand will be set aside. A finding to the contrary could only be arrived at if the contentions advanced are so devoid of substance that no further investigation is warranted.

(4) The function of the court is merely to determine the existence of a genuine dispute. While this neither requires nor invites it to weigh or assess the merits of the dispute, the court will not exceed its legitimate function by having regard to evidence which bears upon whether the asserted dispute is genuine.”

Genuine Dispute – Estoppel?

Evidence of Mr Hegarty

38. On 4 March 2026, Mr Hegarty filed affidavits in each of the proceedings which were in relevantly identical terms. Mr Hegarty deposed as follows:

39. on 27 March 2020, GW Capital acquired a 25% shareholding in Jaymak Pty Ltd for $350,000 from The Hygiene Services Group Pty Ltd, and Mr Hegarty became a director of Jaymak;

40. Mark was the CEO and co-founder of Jaymak, and Hygiene Services is “an entity related to the Defendants”;

41. on 18 February 2025, Mark met with Mr Hegarty and handed him a Share Sale and Purchase Agreement under which GW Capital was to sell its 25% shareholding in Jaymak to Hygiene Services for $25, together with a share transfer form and a form for Mr Hegarty’s immediate resignation as a director of Jaymak;

42. at this meeting, Mark “said words to the effect that [Mr Hegarty] should sign the documents so that [he] would still be seen as a ‘good bloke’ and the Mackenzie investors would not take legal action against [him] if [he] did so”; and

43. Mr Hegarty then signed those documents.

44. On 23 March 2026, Mr Hegarty filed additional affidavits in each of the proceedings regarding the Tony Statutory Demand and the P&W Statutory Demand, which were again in relevantly identical terms. In those affidavits, Mr Hegarty largely repeated the evidence in his 4 March 2026 affidavits, but added that he “understood that the representation made by Mark Mackenzie was made on behalf of all of the Mackenzie Investors”, and that he signed the share sale documentation and resigned as a director of Jaymak “in reliance on that promise”.

45. On 26 May 2026, Mr Hegarty filed a further affidavit in reply, in which he gave the following evidence in relation to his conversation with Mark on 18 February 2025 concerning the sale of GW Capital’s shareholding in Jaymak:

“Upon seeing the sale price represented in those documents, I said words to the effect of: ‘How can $25 be anywhere near fair value?’

I also reminded him that GW Capital had paid $350,000 for its shares and that Jaymak was doing well financially.

Mark said words to the effect that if I signed the documents I would be seen as being a ‘good bloke’ by his family.

He also said words to the effect: ‘I will continue keeping you updated on Jaymak’s ongoing financial position and performance.’

Mark also said words to the effect that if I signed there would be no legal action taken against me or against GW Capital in relation to the Fund redemptions.

What I understood from this conversation was that if I signed the Jaymak share transfer documents, there would be no legal action taken against me or the Fund and that we could deal with matters on a cooperative basis from that point on.

That is why I signed the documents despite not having had time to receive proper legal advice.”

41. Mr Hegarty asserted that the sale of the Jaymak shares occurred at an undervalue. In this regard, he relied on his own opinion as to value, based on his recollection of figures which he had seen in financial records of Jaymak which were not in evidence.

Determination – Estoppel assertion

42. GW Capital stated in its written submissions that the “undervalue sale of the Jaymak shares” gave rise to the following issue:

“Whether a Court would consider that the Mackenzie Investors could rely in good conscience on the Settlement Deed to issue a Statutory Demand in circumstances where that Statutory Demand involved a departure from a representation made by Mark Mackenzie”.

43. There was otherwise no articulation in GW Capital’s written submissions of any estoppel claim, including the legal or factual basis for such a claim.

44. It is uncontroversial that an estoppel may give rise to a genuine dispute as to a creditor’s statutory demand: In the matter of Precise Training Pty Limited [2018] NSWSC 1383 at [25] (Black J).

45. In Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 at 472, Priestley JA (with whom Hope and McHugh JJA agreed) observed that an estoppel may be established where there is:

“the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable.”

46. In Priestley v Priestley [2017] NSWCA 155 at [141], Emmett AJA (with whom McColl JA agreed) observed as follows (citations omitted):

“A party claiming the benefit of an estoppel must establish a promise or representation by the party said to be bound that conveys the relevant meaning in clear and unambiguous terms. Further, the conduct of the party seeking to establish an estoppel, in relying on the alleged words or conduct said to constitute a promise or representation, must be reasonable. In addition, the promisor or representor must be shown to have known or intended that the promise or representee or would act or abstain from acting in reliance upon the words or conduct said to constitute the promise or representation.”

(See also Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2010] NSWSC 776 at [42] (Pembroke J), upheld on appeal in Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 149.)

47. Notwithstanding the low bar for establishing the existence of a genuine dispute, there were a number of fundamental problems with GW Capital’s estoppel claim.

48. First, GW Capital did not identify any basis for the contention that Mark was, at the meeting on 18 February 2025, making representations with the actual or ostensible authority of any of Tony, Peter or Wendy.

49. On Mr Hegarty’s account, the 18 February 2025 meeting primarily related to Jaymak and, in particular, the transfer of GW Capital’s shares in Jaymak to Hygiene Services. None of Tony, Peter or Wendy was an officer of Jaymak. Further, none of them was a shareholder of Hygiene Services.

50. Mr Hegarty gave evidence that Mark had stated that “the Mackenzie Investors” would not take legal action against him and GW Capital if he executed the share sale documents. However, it is not sufficient to establish ostensible authority for a third party to show reliance on an agent’s representation of authority from the principal; what must be shown is reliance on the representation of the principal that the agent had the necessary authority: see G E Dal Pont, Law of Agency (4th ed, 2020) at [20.32], and the cases there cited.

51. Mr Hegarty did not give evidence of any statement made by any of Tony, Peter or Wendy to the effect that Mark was, when dealing with Mr Hegarty in relation to Jaymak, acting as their agent.

52. Instead, Mr Hegarty gave evidence that during 2023 and 2024 (that is, for the two years prior to his meeting with Mark on 18 February 2025), he observed “conflict” between Mark and Tony which “affected the way Mark and Tony communicated with [Mr Hegarty] about the investments in their respective family interests held in GW Capital”. In particular, Mr Hegarty deposed that: “I generally received separate and at times inconsistent communications from each of [Mark and Tony] about the same subject matter”.

53. Further, so far as concerns the specific subject matter of GW Capital’s shareholding in Jaymak, Mr Hegarty exhibited to his affidavit of 26 May 2026 various text messages between him and Tony, including the following exchange on 11 December 2024:

Mr Hegarty: “I’d like to get my funds out of Jaymak too in order to further assist [with meeting the redemption requests made by Tony] but I’m also told that’s not an option?”

…

Tony: “The Jaymak issue has nothing to do with me …”

54. Those matters are inconsistent with any assertion that Tony, by words or conduct, held out Mark as having authority to act on Tony’s or MACA’s behalf when dealing with Mr Hegarty in relation to Jaymak on 18 February 2025.

55. Secondly, GW Capital did not identify with any precision the promise or representation alleged to have been made by Mark on 18 February 2025 which was said to give rise to an estoppel.

56. At its highest, Mr Hegarty’s evidence was that Mark told him that if he executed the share sale documentation and resigned as a director of Jaymak, “there would be no legal action taken against [him] or against GW Capital in relation to the Fund redemptions”. Mark was not alleged to have referred to any particular legal action, or to have given any further content to what was meant by “in relation to the Fund redemptions”.

57. In response to the contention that Mark’s representation was “unclear”, GW Capital relied on the following observations of Tobias JA (with whom Giles and Hodgson JJA agreed) in Galaxidis v Galaxidis [2004] NSWCA 111 at [93] (emphasis in original):

“… even if a representation is insufficiently precise to give rise to a contract (as in the present case), that fact does not necessarily disqualify the representation from founding a promissory estoppel. Much will depend upon the circumstances in which the representation is made and the context against which it is to be considered. In its context, the representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely. In these circumstances, it would be unconscionable for the representor to deny responsibility for the detriment that arises because of that reliance.”

58. This statement of principle requires that the person asserting an estoppel claim to establish that “it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely” (emphasis added).

59. GW Capital did not identify precisely the manner in which Mr Hegarty interpreted Mark’s alleged representation that the Mackenzie parties would take “no legal action against [Mr Hegarty] or against GW Capital in relation to the Fund redemptions”, or explain why this was a meaning which the representation was clearly capable of bearing.

60. When asked to specify the defence to a claim for breach of the Settlement Deed which was said to be available by reason of Mark’s representation, Counsel for GW Capital replied as follows: “the defence would be that the person seeking to enforce the contract is estopped from relying on the contract because of the prior representation that they would not sue in relation to the subject matter of the contract”.

61. It is difficult to see how Mark’s representation on 18 February 2025 could possibly be interpreted by Mr Hegarty on that date, let alone be reasonably interpreted, as a representation that the Mackenzie parties would “not sue in relation to the subject matter of the [Settlement Deed]”, given that the Settlement Deed did not exist at the time of the representation (and was not entered until late March 2025).

62. GW Capital’s contention appeared to be that Mark’s representation had ambulatory effect. That is, it was a promise not only to refrain from taking legal action in respect of the redemption requests which had been made prior to 18 February 2025, and with which GW Capital had failed to comply, but also to refrain from taking any action against GW Capital or Mr Hegarty in respect of any potential future breach of their obligations “in relation to Fund redemptions”, including obligations under any agreement that might be entered in the future.

63. However, Mr Hegarty did not give any evidence to the effect that he understood from Mark’s statement that, if GW Capital entered into a contract with the Mackenzie parties at some time in the future which imposed obligations on GW Capital to make specific redemption payments on specific dates, and GW Capital breached those obligations, none of the members of the Mackenzie family or their associated superannuation vehicles would sue GW Capital in respect of any such breach. Nor did GW Capital explain how any such interpretation of Mark’s statement would be reasonable.

64. Thirdly, the parties’ contemporaneous conduct is directly inconsistent with any contention that any such promise was made by Mark or understood by Mr Hegarty to have been made.

65. For example, on 21 February 2025, only a short time after Mark allegedly promised Mr Hegarty that the “Mackenzie Investors” would not take any legal action “in relation to the Fund redemptions”, Mark and Mr Hegarty exchanged the following text messages:

Mark: “Hello mate. The natives are sharpening their knives for the kill…please help yourself and get that transfer done today”.

Mr Hegarty: “Mate don’t I know it! Have some good news, buzz you within the hour.”

“Hey mate, I’m still awaiting a transfer confirm both to and from the trust account, keep you posted yet all seems ok.”

66. Mr Hegarty stated in his evidence that he understood “the natives” to be a reference to the “Mackenzie investor group”. Mr Hegarty did not respond to Mark’s message by saying that the Mackenzie parties had (through Mark) promised not to sue him in relation to the redemption of their interests in the GW Capital Fund. Instead, he responded by indicating that he was aware that the Mackenzie parties would take action against him if he failed to transfer funds in response to their redemption requests (“Mate don’t I know it”) and that he was taking steps to transfer those funds. No such transfer was made at that time.

67. On 24 February 2025, Tony’s solicitors sent a letter addressed to Mr Hegarty as director of GW Capital, which:

68. set out allegations that GW Capital had, in its capacity as trustee of the GW Capital Fund, breached its duties and obligations to Tony “by making misleading representations about the process to redeem money from the Fund and failing to properly and in a timely manner make payments in accordance with Tony’s redemption request [in June 2024]”;

69. stated that Tony had suffered loss “as a result of GW Capital’s failure to make the payment in accordance with his redemption request within the timeframe that the [Information Memorandum] represented applied to such requests”;

70. demanded that GW Capital pay, in respect of Tony’s redemption request, an amount of $850,000 by 28 February 2025, with the balance being paid by 4 April 2025; and

71. stated as follows: “If you do not comply with these demands, we expect to receive instructions to initiate proceedings against you and GW Capital to enforce our clients’ rights …”.

72. On 26 February 2025, Mark sent a further text message to Mr Hegarty, stating as follows:

“Morning Hegs.

FYI

The money is still not in our account

Firstly…why are you doing this to us? I thought you had a conscience and some integrity!!

Secondly…you do realize Tony will not stop until he gets his money or he sees you in jail”

69. Again, Mr Hegarty did not respond to either Tony’s letter or Mark’s message by stating that Mark had promised him, and he had understood, that the “Mackenzie Investors” (including Tony) would not take any legal action against him or GW Capital “in relation to Fund redemptions”.

70. Instead, Mr Hegarty and GW Capital proceeded to enter into the Settlement Deed with the Mackenzie parties on 26 March 2025. The recitals to this deed state that there is a dispute between the parties regarding the redemption of the interests of the Mackenzie parties in the GW Capital Fund, and that the parties have agreed to resolve this dispute on the terms recorded in the Settlement Deed (see paragraph [15] above).

71. Fourthly, by cl 3.1 of the Settlement Deed, the Mackenzie parties gave releases to GW Capital and Mr Hegarty in relation to the dispute regarding the redemption of their units in the GW Capital Fund in consideration for GW Capital’s agreement to make the redemption payments set out in Sch 1 to the Settlement Deed on the dates specified, with the releases to take effect only when all of those payments had been made (see paragraph [19] above). Accordingly, the promise by the Mackenzie parties not to sue GW Capital is conditioned on GW Capital’s fulfilment of the payment obligations in the Settlement Deed.

72. Further, the Settlement Deed provided that all “discussions, undertakings, representations” made in connection with this dispute or relating to the settlement of it were replaced by the Settlement Deed and had no further effect (cl 10.5); and that the Settlement Deed prevailed over any other “arrangement” between the parties, to the extent of any inconsistency (cl 10.1) (see paragraph [21] above).

73. It is implausible that Mr Hegarty understood any alleged representation by Mark on 18 February 2025 that the Mackenzie investors would not take legal action against him and GW Capital in relation to the Fund redemptions as meaning that the Mackenzie parties would not take legal action to enforce the Settlement Deed, which was subsequently entered in March 2025, and which comprehensively set out the terms on which the Mackenzie parties agreed not to take such action.

74. Having regard to the matters set out above, I am not satisfied that GW Capital has established a serious question to be tried that the Mackenzie parties are, by reason of any statement made by Mark on 18 February 2025, estopped from enforcing their contractual rights under the Settlement Deed to receive the payments specified in Sch 1 to that deed.

75. It follows that GW Capital has failed to establish any genuine dispute on this ground.

Offsetting claim?

76. In its written submissions, GW Capital contended that the events concerning the sale of its shares in Jaymak at an undervalue “gives rise to two legal consequences”. The first was the alleged estoppel, which has been addressed above. The second was said to be: “Whether [GW Capital] has an offsetting claim for the value of the Jaymak shares”.

77. GW Capital did not, in its written submissions, provide any further information about this “offsetting claim”, including the nature of the claim; the person against whom the claim was available; and the basis on which it was alleged that the elements of any such claim were, or might plausibly be, established.

78. In oral address, Counsel for GW Capital stated that any such offsetting claim would be available only against Mark, and not against any of the other Mackenzie parties. However, she did not identify, with any precision, the legal or factual basis on which the Court would be able to conclude that a genuine offsetting claim was available against Mark in relation to this sale.

79. Such a claim could not be based on any contention that Mr Hegarty was misled as to the value of the Jaymak shares at the time of entry into the sale agreement, since it was his evidence that he was aware that GW Capital was selling those shares at an undervalue, but that he nonetheless agreed to the sale because Mark represented that he would be seen as a “good bloke” if he did so, and no legal action would be taken against him or GW Capital (see paragraph [40] above). At the conclusion of her brief oral submissions on this issue, Counsel for GW Capital stated that: “The preferable formulation is that it doesn’t fall under an offsetting claim, but that instead it is an actionable estoppel based on the representation that there would not be suing occurring in the future.”.

80. Accordingly, I have not further considered any alleged offsetting claim (which, in any case, related only to the M&J Statutory Demand).

Genuine Dispute – Waiver?

81. GW Capital contended that there was a genuine dispute as to whether Tony Mackenzie had, on behalf of all of the Mackenzie parties, waived the right to insist on GW Capital’s compliance with its obligation under cl 2.1 of the Settlement Deed to make payments to the Mackenzie parties on the dates set out in Sch 1 to the Settlement Deed.

82. In general terms, waiver comprises “the deliberate, intentional and unequivocal release or abandonment of the right that is later sought to be enforced”: Clough Projects Australia Pty Ltd v Elecnor Australia Pty Ltd [2026] NSWCA 111 at [67] per Bell CJ (with whom Ward P and Free JA agreed), citing Zhang v Shanghai Wool and Jute Textile Co Ltd (2006) 201 FLR 178; [2006] VSCA 133 at [14] per Chernov JA (with whom Ashley JA and Bongiorno AJA agreed).

83. In Zhang, Chernov JA (at [14]), referred with approval to the observation made by Wilken and Villiers in The Law of Waiver, Variation and Estoppel (2nd ed, 2002) at 68 [4.45] that:

“the elements that are common to all waivers ‘in the true sense of the word’ are:

1. an unequivocal representation by X either by words or conduct that it will forgo certain rights;

2. X makes that representation when it is aware of the facts that give rise to the rights which are being forgone, of the right to forgo those rights and the connection between the two.”

84. When considering whether any such “unequivocal representation” was conveyed by any words or conduct of Tony, it is necessary to have regard to cl 10.8 of the Settlement Deed, which provided that waiver of any power or right under the deed “must be in writing signed by the Party entitled to the benefit of that power or right” and “is effective only to the extent set out in that written waiver” (see paragraph [21] above).

85. The only matters identified in GW Capital’s written submissions as giving rise to the alleged waiver were as follows:

86. on 19 October 2025, Tony sent a text message in which he “invite[d] Matthew Hegarty to provide an ‘updated redemption plan’”;

87. on 16 and 19 December 2025, Mark sent text messages which were “consistent with acquiescence in the waiver of the payment schedule”; and

88. Tony deposed in his affidavit that “short extensions of time were agreed or tolerated by me”.

89. Each of the relevant statements must be considered in the context in which it was made.

Communications leading up to Tony’s 19 October 2025 Message

87. On 6 June 2025, Tony sent an email to Mr Hegarty, copied to Mark, Peter and Jane, responding to Mr Hegarty’s promise that an amount of $400,000 would be distributed to the Mackenzie parties. Tony stated that: “we need to re-emphasise the requirement under the [Settlement] Deed to have the majority of the redemption amounts paid out by the 30th of June”.

88. On 12 June 2025, Tony sent a further email to Mr Hegarty, copied to Mark, Peter and Jane, in which he stated that there was “still no sign of the recent redemption payments that were promised last week”. Tony continued as follows:

“we are now quite behind on the redemption payment schedule as per the [Settlement] Deed, we have all agreed that we need to enforce the requirements of the Deed to stay on track … we are now at the end of our patience and well behind on where we all agreed and signed off in regard to the Deed. We now require a payment of $500,000 each by close of business Friday to avoid a legal enforcement of the Deed.”

89. Following this email, GW Capital made the following payments:

| | 20 June 2025 | 23 June 2025 | | Tony | $50,000 | $50,000 | | Mark and Jane | $50,000 | $75,000 | | Peter and Wendy | $50,000 | $75,000 |

90. No further payments have been made to any of the Mackenzie parties since 23 June 2025.

91. On 3 July 2025, Tony sent a text message to Mr Hegarty stating that if “the larger payment” which had been promised for the following day “doesn’t come through as promised”, “I don’t think we have much room for compromise moving forward”.

92. On 25 July 2025, Tony set an email to Mr Hegarty regarding a discussion between them on the previous day, recording that “we both agree that there needs to be clarity around how we proceed with ensuring the redemptions occur within a mutually agreed time frame”. The email set out “the key points of the discussion” as including that:

93. Mr Hegarty would “establish a redemption payment plan in line with the requirements of the Deed in order to pay out those amounts in full within the mutually agreed timeframe”;

94. Mr Hegarty would work with GW Capital’s solicitor to “include a clause as an amendment to the Deed that gives us priority redemption payment”; and

95. solicitors would be involved on both sides “to ensure that there is formality and transparency of the process”.

96. These matters all serve to underline that the Mackenzie parties were willing to consider an amendment to the Settlement Deed, but such an amendment would need to be formally agreed by the Mackenzie parties and documented (consistently with the requirements of cll 10.4 and 10.8 of the Settlement Deed: see paragraph [21] above). Tony’s email concluded that: “This all hinges on you being able to meet the outcomes detailed within the redemption plan.”

97. No such “redemption payment plan” was provided for the Mackenzie parties’ consideration at that time.

98. On 20 August 2025, Tony sent a further email to Mr Hegarty, copied to Mark, Peter and the Mackenzie parties’ solicitor, requesting that Mr Hegarty “with haste, send us the plan for redemption finalisation so that we can all move forward”. Tony’s email concluded as follows: “Our expectation is that there will be a redemption payment this Friday so please let us know what this amount will be so that we can all avoid costly and time consuming legal enforcements of the [Settlement] Deed”. Tony followed up this email with a text message to Mr Hegarty on the following day stating that he needed the redemption payment plan “today so we can move forward in a logical and sensible way rather than going into battle”.

99. This message did not result in any proposed redemption plan being provided for the Mackenzie parties’ consideration.

100. On 19 October 2025, Tony sent a text message to Mr Hegarty, which stated as follows:

“Hi Matt

Let me know what time suits you for Tuesday and also if you have the updated redemption plan

Cheers”

98. Tony sent a number of messages over the following days chasing up Mr Hegarty for a proposed redemption plan, which he ultimately received on 25 October 2025.

99. As noted above, GW Capital, in its written submissions, identified the text message from Tony on 19 October 2025, set out in paragraph [97] above, as giving rise to a waiver by the Mackenzie parties of their right to enforce the payment obligations under the Settlement Deed. In oral address, Counsel for GW Capital submitted that, by this message, “Tony represented in writing to Mr Hegarty that he was not enforcing the settlement deed in its terms and that a new redemption schedule could be negotiated and that in those circumstances that [a]ct [by Tony] could constitute a waiver of the terms of the settlement deed”.

100. I am not satisfied that any such contention is seriously arguable. Tony’s text message of 19 October 2025 contained a request for a proposed payment plan, which, by that point, had been promised by Mr Hegarty for a considerable period of time. Tony’s request was made in a context where Tony had made clear to Mr Hegarty, over the preceding months, that any amended payment plan would need to be accepted by the Mackenzie parties and formally documented, and that, unless there was an amended payment plan which was agreed (and performed), then the Mackenzie parties intended to enforce their legal rights under the Settlement Deed. Given those matters, GW Capital’s contention that Tony’s message of 19 October 2025 constituted the deliberate, intentional and unequivocal release or abandonment of the right of the Mackenzie Parties to enforce the payment obligations in the Settlement Deed is implausible and accordingly, does not give rise to a genuine dispute.

Communications leading up to Mark’s December 2025 Messages

101. On 30 October 2025, Tony sent an email to Mr Hegarty, copied to Mr Hegarty’s lawyer, summarising their discussions and their “in principle” agreement to a number of “deliverables”, which included:

102. the completion of an audit of “the fund’s financials” by an “experienced third party”, with the audit report being provided to the Mackenzie parties “for assurance purposes and to help explain any hold ups for redemption payments”; and

103. “Payment of the first redemption amount as stated within the Redemption Plan i.e. $500,000 to $700,000 prior to the end of December – preference would be to have this paid ASAP as a matter of good faith”.

104. Tony’s email concluded as follows:

“There will necessarily be an essence of urgency for these deliverables to be complied with in order to avoid any unnecessary legal enforcement from any of the parties. Please respond with time frames.”

103. The requested “time frames” do not appear to have been provided by Mr Hegarty, as Tony sent a further message to Mr Hegarty on 14 November 2025, stating as follows (emphasis added):

“I need a definitive date for redemptions as otherwise we are just procrastinating and not providing assurity – this will likely lead to legal enforcement of the deed”

104. On 10 December 2025, Tony sent a further email to Mr Hegarty, referring again to the need for “3 critical deliverables before Xmas”, namely, a “More detailed redemption plan”, the “Finalised fund audit” and the “Redemption payment ($500-700K)”.

105. It is against that background that Mark sent the two text messages to Mr Hegarty on 16 and 19 December 2025, on which GW Capital relied in support of its waiver contention:

106. on 16 December 2025, Mark sent a message to Mr Hegarty, which included the following statements:

“I know we haven’t communicated since July and we have purposely not hassled you about the money on the off chance that you would do the honorable thing and just pay us out however this has not been the case.

Utter disappointment would be an understatement to the current situation and the breakdown in our 20+ year friendship

If you still have any interest in trying to rebuild trust between us then I implore you to make some further redemption payments before the year is out”

2. on 19 December 2025, Mr Hegarty replied that he had been dealing with Tony as “the point of contact for all matters relating to the redemptions and payment schedule”, and was “continu[ing] to work through the redemption process with Tony”;
3. within half an hour of receiving this message, Mark responded, stating that:

“We have not received any communication on this matter from Tony for months and we are unaware of any new timeframe agreed and why further payments have not been made to us.

Can you please provide me with all the recent correspondence and/or communication you have had with Tony as well as the new agreement in relation to timeframes and amounts.”

106. Mark’s messages are not, as GW Capital submitted, “consistent with acquiescence in the waiver of the payment schedule” by Tony. First, there had been no such waiver by Tony. Secondly, Mark stated that he had no knowledge of any amended repayment plan that may have been proposed by Mr Hegarty to Tony. Thirdly, Mark made clear that Tony did not act on his behalf in relation to these matters.

107. The last of these points is supported by an email sent by Tony to Mr Hegarty on 21 December 2025, which stated as follows (emphasis added):

“As I have discussed several times with both you and Marcus [GW Capital’s solicitor], Mark and I are handling this matter independently of one another and I have no responsibility or authority to speak on his behalf or consider him in these matters.”

108. All of those matters are inconsistent with GW Capital’s assertion that Tony had, on behalf of all of the Mackenzie investors, waived the right to insist on GW Capital’s compliance with the payment obligations in Sch 1 of the Settlement Deed. As at this time, neither Tony nor Mark had been provided with, let alone indicated any agreement to, the “[m]ore detailed redemption plan” which Tony had sought in his email of 10 December 2025. Further, Tony repeatedly made clear to Mr Hegarty that if he did not receive a definitive timeline for redemption payments, the likely consequence would be the enforcement of the Settlement Deed (see, for example, paragraphs [102]-[103] above).

109. No such detailed redemption plan was provided, and the Defendants subsequently issued their respective statutory demands in February 2026.

Statements in Tony’s Affidavit

110. The passages in Tony’s affidavit on which GW Capital relied do not assist with, and instead undermine, its waiver contention.

111. For example, GW Capital relied on Tony’s statement that his communications with Mr Hegarty from April 2025 to January 2026 “included times where short extensions of time were agreed or tolerated by me on the basis that if the extensions or conditions we discussed were not met, enforcement of the legal requirements under the Settlement Deed would occur” (emphasis added).

112. Further, in a subsequent part of the same paragraph, Tony stated as follows:

“at no time did I agree to forego any rights under the Settlement Deed. On the contrary, I repeatedly made reference to having to, and being willing to, enforce those rights if Mr Hegarty did not follow through on the timelines and conditions we were discussing; and

Mr Hegarty repeatedly failed to follow through on what he had indicated would be done such that I then, in February 2026, proceeded to take steps to enforce the debt due under the Settlement Deed.”

Determination - Waiver

113. I am comfortably satisfied that GW Capital has not established a serious question to be tried, or a plausible contention requiring investigation, so far as waiver is concerned.

114. In essence, GW Capital’s submission was that, by indicating a willingness to extend the time for payment and to consider an alternative payment plan, Tony (on behalf of all of the Mackenzie parties) waived the right of the Mackenzie parties to insist on GW Capital’s compliance with the payment obligations in Sch 1 to the Settlement Deed, such that the amounts set out in Sch 1 were not due and payable by the dates stipulated in Sch 1 (and, moreover, would never become due and payable unless and until an alternative payment plan was agreed). Such a contention is not seriously arguable, having regard to the matters set out above.

115. It follows that GW Capital has failed to establish any genuine dispute on this ground.

Conclusions

116. GW Capital has failed to establish a genuine dispute in respect of the debts claimed in either the Tony Statutory Demand or the P&W Statutory Demand.

117. I will make, as agreed by the parties, orders varying the amount claimed by the P&W Statutory Demand (see paragraph [28] above), and declare that the P&W Statutory Demand take effect, as varied, from the date of service upon GW Capital.

118. Otherwise, I will make orders in each of the proceedings concerning, respectively, the Tony Statutory Demand and the P&W Statutory Demand that GW Capital’s application is dismissed, with costs.

The M&J Statutory Demand

Was the s 459G application served within the required period?

Relevant facts

119. On 11 February 2026, the M&J Statutory Demand was served on GW Capital at its registered office in New South Wales. Service was effected by registered mail, under cover of a letter from Mr Denis Marjas of Griffins Lawyers, who were the solicitors for Mark, Jane and MHC.

120. The M&J Statutory Demand claimed that debts were owing to Mark, Jane and MHC, and gave the address of each of Mark and Jane as being a property in Main Beach, Queensland.

121. The M&J Statutory Demand purported to be in accordance with Form 509H (as required by s 459E(2)(e) of the Corporations Act).

122. Form 509H requires a creditor’s statutory demand to include, in paragraph 5, a statement of the requirements for making an application under s 459G of the Corporations Act to set aside a statutory demand, and to include, in paragraph 6, the following information (emphasis added):

“6. The address of the creditor for service of copies of any application and affidavit is (insert the address for service of the documents in the State or Territory in which the demand is served on the company, being, if solicitors are acting for the creditor, the address of the solicitors).”

123. The M&J Statutory Demand did not provide an address in NSW for service of any s 459G application and therefore did not satisfy the requirement of Form 509H to specify an “address for service of the documents in the State … in which the demand is served on the company”.

124. Instead, paragraph 6 of the M&J Statutory Demand was in the following terms:

“6. The address of the creditor for service of copies of any application and affidavit is:

Griffins Lawyers

49 Flinders Street

ADELAIDE SA 5000

Email: ggriffin@griffins.com.au”

125. On 4 March 2026, being exactly 21 days after service of the M&J Statutory Demand, GW Capital filed with the Court its s 459G application in respect of the M&J Statutory Demand and the supporting affidavit of Mr Hegarty. On the evening of the same day, GW Capital purported to serve its s 459G application and supporting affidavit on Mark, Jane and MHC by emailing those documents to the email address of Griffins Lawyers specified in the M&J Statutory Demand.

126. The email to Griffins Lawyers was accompanied by a notice to Mark, Jane and MHC under the Service and Execution of Process Act 1992 (Cth) (SEP Act).

127. On 5 March 2026, GW Capital’s solicitor sent, by registered post, hard copies of the application and supporting affidavit to MHC at its registered office (being JY Accountants Pty Ltd, Southport Central Tower 3, Level 5, 9 Lawson St, Southport, Queensland). On 6 March 2026, the package containing those documents was delivered to this address.

Provisions regarding service and Parties’ submissions

128. Section 459G(3) of the Corporations Act relevantly provides that, an application to set aside a statutory demand is made in accordance with s 459G “only if”, within 21 days after the demand is served on the company, “a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company”.

129. GW Capital suggested, somewhat faintly, that in this case “the person who served the demand on the company” was Mr Marjas of Griffins Lawyers, and therefore the application and supporting affidavit were, by email, served on “the person who served the demand”.

130. I do not accept this submission. Section 459E of the Corporations Act provides that “[a] person may serve on a company a demand relating to” a debt or debts “that the company owes to the person”. It is plain that the reference to “the person who served the demand” in s 459G is a reference to the person who serves a statutory demand under s 459E claiming that a debt or debts is owed to them. In this case, the relevant “person” was Mark, Jane and MHC. Griffins Lawyers was acting as their agent in serving the demand.

131. Accordingly, it is necessary to consider whether the s 459G application and supporting affidavit were served on Mark, Jane and MHC within the 21-day period stipulated by s 459G(2).

132. Further, since each of Mark and Jane resides in Queensland, and the registered office of MHC is in Queensland, it is necessary to consider the provisions of the SEP Act.

133. Section 15 of the SEP Act relevantly provides as follows:

(1) An initiating process issued in a State may be served in another State.

(2) Service on an individual must be effected in the same way as service of such an initiating process in the place of issue.

(3) Service on a company or a registered body must be effected in accordance with section 9.

134. Section 9 of the SEP Act relevantly provides as follows:

9 Service on companies and registered bodies

(1) Service of a process, order or document under this Act on a company is to be effected by leaving it at, or by sending it by post to, the company’s registered office.

(2) Without limiting the operation of subsection (1), a process, order or document may be served on a company by delivering a copy of it personally to a director of the company who resides in Australia.

…

(9) Subsections 109X(1) and (2) and section 601CX of the Corporations Act 2001 do not apply to a process, order or document that may be served under this Act.

…

135. GW Capital submitted that the service of the s 459G application and supporting affidavit on Mark and Jane by way of an email to Griffins Lawyers complied with the requirements of s 15(2) of the SEP Act for service on an individual and, in this regard, relied on the decision in In the matter of B&B Legal Pty Ltd trading as Borthwick and Butler Solicitors [2025] NSWSC 587 at [17]-[21] (Brereton J). The Defendants submitted that the observations in that decision regarding electronic service were obiter (since his Honour held that the documents were physically served on the individual within the 21-day period: at [13]-[16]), and should not be applied in this case having regard to the requirements for service on individuals under the Uniform Civil Procedure Rules 2005 (NSW).

136. It is unnecessary to resolve the issue as to whether the s 459G application was served on Mark and Jane in accordance with the requirements of s 15(2) of the SEP Act, since GW Capital:

137. accepted that the s 459G application was not served on MHC in accordance with the requirements of s 15(3) of the SEP Act; and

138. did not advance any contention to the effect that the requirements of s 459G of the Corporations Act would be satisfied in circumstances where the s 459G application was served on Mark and Jane, but not on MHC.

139. Instead, GW Capital submitted that ss 110C and 110D of the Corporations Act, which permit service of documents on companies by email, prevail over the requirements of s 15 of the SEP Act, and that the s 459G application was served on MHC in accordance with the requirements of s 110D.

140. Section 110C of the Corporations Act relevantly provides as follows:

110C Documents to which this Division applies

Sending documents

(1) This Division applies to any document covered by subsection (3) or (4) that is required or permitted under this Act to be sent by a person or entity (the sender) to another person or entity (the recipient).

…

Covered documents

(3) This subsection covers a document that is required or permitted be sent by the sender to the recipient under:

…

(c) Chapters 5 to 5D; or

…

References to sending documents

(6) This Division applies to a requirement or permission to send a document, whether the expression send, give, serve or dispatch, or any other expression, is used.

139. Section 110D of the Corporations Act relevantly provides as follows:

110D Technology neutral sending of documents

(1) The document may be sent to the recipient:

(a) by sending the document in a physical form; or

…

(c) if subsection (2) is satisfied—by sending the document in electronic form by means of an electronic communication; or

…

(2) This subsection is satisfied if, at the time the document is sent, it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference.

…

(6) Paragraphs (1)(c) and (d) apply only if:

…

(b) where the recipient is not covered by subsection (7)—the sending of the document mentioned in paragraph (1)(c), or the sending of the information mentioned in paragraph (1)(d), is to a nominated electronic address of the recipient.

140. GW Capital submitted that the effect of s 110D(6)(b) and s 110D(1)(c) is that the s 459G application and supporting affidavit (being documents which are permitted to be served under Ch 5 of the Corporations Act: see ss 110C(1), (3)(c) and (6)) could be served by email to the email address nominated by MHC (being the email address of Griffins Lawyers).

Determination – Service

141. GW Capital’s contention relies on there being an inconsistency between s 110D of the Corporations Act, insofar as it permits service of documents upon companies by email, and s 15 of the SEP Act, insofar as it requires service of an interstate process on a company by leaving it, or sending it by post to, the company’s registered address.

142. In Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 553, the Privy Council made the following observations regarding “the interrelation in law of two statutes whose field of application is different”:

“The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject-matter; is it to override the earlier statute in [the] case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?”

143. In performing this task of ascertaining the legislative intention, it is generally presumed that where there are general words in a later Act which are capable of reasonable and sensible application without extending them to a subject specially dealt with by an earlier Act, the later Act does not impliedly repeal the earlier Act: P Herzfeld and T Prince, Interpretation (3rd ed, 2024) at [11.140]; see also Maybury v Plowman (1913) 16 CLR 468 at 473-474; [1913] HCA 43 (Barton ACJ). One of the authorities cited by the learned authors in respect of this presumption is Seward v The Vera Cruz (1884) 10 App Cas 59 at 68, where the Earl of Selborne LC observed that:

“Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.”

144. In In the matter of Riverina Solar Pty Ltd (2024) 387 FLR 101; [2024] NSWSC 480, Williams J considered whether the former s 600G of the Corporations Act (which permitted a wide range of documents – including, relevantly, any document permitted to be given under Ch 5 of the Corporations Act – to be given by electronic communication) was inconsistent with s 15(3) of the SEP Act. Her Honour determined that the legislature is not to be taken, by the subsequent enactment of the amended s 600G of the Corporations Act, to have intended to derogate from s 15 of the SEP Act. In particular, her Honour reasoned as follows (at [73], [88]; emphasis in original):

“[73] … Section 600G of the Corporations Act, as amended by the 2020 Amendment Act, is a general provision that permits a very wide range of documents – including, but not limited to, any document required or permitted to be given under any provision of Chapter 5 of the Corporations Act – to be given by electronic communication. Section 15(3) of the SEP Act is an earlier provision that is limited to initiating process that it is to be served in a State other than the State in which it was filed, and requires that specific, narrower class of documents to be served by one of the means stipulated in s 9 of the SEP Act. The means stipulated in s 9 of the SEP Act do not include electronic communication. Potential inconsistency between s 600G of the Corporations Act and s 15(3) of the SEP Act is limited to cases where an application to set aside a statutory demand under s 459G of the Corporations Act is filed in one State, and is required to be served in another State. … that potential inconsistency is avoided by construing the facultative s 600G of the Corporations Act as subject to the mandatory s 15(3) of the SEP Act in the narrower classes of case to which s 15(3) applies. That is because, in passing Division 1 of Part 2 of the SEP Act, the legislature was directing their attention to the specific case of interstate service of initiating process in civil proceedings that s 15 of the SEPA Act was expressly directed to. Having made provision for that specific case in s 15 of the SEP Act, the legislature is not to be taken by the subsequent enactment of the amended s 600G of the Corporations Act to have intended to derogate from s 15 of the SEP Act: Maybury v Plowman (1913) 16 CLR 468 at 473-474; [1913] HCA 43 (Barton ACJ); see also P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [11.140]. … the potential inconsistency between s 600G of the Corporations Act and s 15(3) of the SEP Act does not warrant s 600G being read as inapplicable to the service of any and all applications to set aside statutory demands. Such a construction of s 600G would strain the ordinary meaning of the language of the section, understood in the context of Chapter 5 of the Corporations Act which provides for the issue of statutory demands and service of applications to set aside statutory demands in Part 5.4, which governs winding up companies in insolvency.

…

[88] … s 9(9) of the SEP Act expressly excludes the operation of those provisions of the Corporations Act that cover the same field as, but inconsistent with, s 9 of the SEP Act. The fact that s 9 of the SEP Act does not expressly exclude s 600G of the Corporations Act, provides no support for construing the general, facultative provisions of s 600G as overriding the specific, mandatory provisions of s 15(3) of the SEP Act where the two provisions intersect. Nor is such a construction warranted by the fact that the general, facultative s 600G does not expressly provide that it is subject to the earlier, specific, mandatory provisions of s 15(3) of the SEP Act.”

145. GW Capital did not submit that Riverina Solar was wrongly decided or take issue with any aspect of her Honour’s reasoning. Instead, GW Capital contended that there was a significant difference between ss 110C-110D and the former s 600G of the Corporations Act, in that s 110C(6) expressly provided that s 110D applied to “a requirement or permission to send a document, whether the expression send, give, serve or dispatch, or any other expression, is used” (emphasis added).

146. I do not consider this to be a significant point of distinction. In Riverina Solar, Williams J proceeded on the basis that s 600G permitted “a very wide range of documents … to be given by electronic communication”, “including, but not limited to, any document required or permitted to be given under any provision of Chapter 5 of the Corporations Act” (at [73]). Her Honour expressly rejected a submission that an application to set aside a statutory demand was not a document that is “required or permitted to be given to a person” under Chapter 5 of the Corporations Act (at [75]), and concluded that s 600G “applied to the service of a s 459G application and supporting affidavit, save in cases in which s 15(3) of the SEP Act required that initiating process to be served by means other than the means permitted by s 600G” (at [78], (emphasis added)).

147. As set out above, the critical thread in her Honour’s reasoning was that s 600G of the Corporations Act was expressed in permissive terms and applied generally to a wide range of documents, while s 15(3) of the SEP Act was expressed in mandatory terms and applied specifically to a narrow class of documents. Her Honour concluded, consistently with the authorities identified at paragraphs [142]-[143] above, that having made provision for the specific case of interstate service of initiating process in civil proceedings in s 15 of the SEP Act, the legislature is not to be taken, by the subsequent enactment of s 600G of the Corporations Act, to have intended to derogate from s 15 of the SEP Act.

148. That reasoning is equally applicable to any potential inconsistency between s 110D of the Corporations Act and s 15 of the SEP Act. Such potential inconsistency can be avoided by construing the facultative s 110D of the Corporations Act as subject to the mandatory s 15(3) of the SEP Act in the specific and narrow class of cases in which the latter provision applies.

149. This conclusion flows from the language of the relevant provisions and the application of well-established principles of statutory interpretation.

150. In support of its submission, GW Capital relied on the following secondary materials.

151. In the Second Reading Speech for the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Bill 2022 (Cth) on 23 November 2022, the Assistant Treasurer and Minister for Financial Services made the following statements in relation to Schedule 1 to the Bill (which included the proposed ss 110C-110D):

“Schedule 1 to the bill will modernise several Treasury portfolio laws to improve their technology neutrality and address unnecessary barriers to the use of digital communications.

These amendments build on temporary changes—and many of them make permanent the temporary changes—introduced in response to the COVID-19 pandemic to allow businesses greater flexibility in how they conduct operations and engage with consumers. ...

Together, these reforms will facilitate the use of digital technologies and provide greater choice to individuals and businesses in how they communicate and operate.”

2. Paragraphs 1.13-1.14 of the Explanatory Memorandum for the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Bill 2022 (Cth) stated as follows in relation to the proposed introduction of ss 110C-110D:

“Technology neutral requirements for sending documents

1.13 Specifically, the amendments provide that any document that is required or permitted to be sent under Chapters 2A to 2M, 5 to 5D, 6 to 6C, 8A, 8B or 9 or Schedule 2 to the Corporations Act may be sent in any of the following ways:

• hard copy;

• electronically to an electronic address;

• by sending, in hard copy, details sufficient to enable the recipient to access the document electronically;

• by sending, in electronic form, details sufficient to enable the recipient to access the document electronically.

[Schedule 1, item 9, subsections 110C(1)–(3) of the Corporations Act]

1.14 The new rules apply to a requirement or permission to send a document, whether the expression ‘send, ‘give’, ‘serve’ or ‘dispatch’ or any other expression is used. The new rules also apply to a class of documents specified in the Regulations. [Schedule 1, item 9, subsections 110C(4) and (6) of the Corporations Act]”.

151. There is nothing in those secondary materials – which express generalised aims of removing “unnecessary barriers to the use of digital communications” and allowing businesses “greater flexibility in how they conduct operations and engage with consumers” – to indicate that the legislature intended, by the introduction of ss 110C-110D of the Corporations Act, to derogate from the application of s 15(3) of the SEP Act to the specific case of the interstate service of an initiating process on a corporation.

152. For those reasons, I reject GW Capital’s contention that ss 110C-110D of the Corporations Act should be construed as amending the mandatory requirements of ss 9 and 15(3) of the SEP Act.

153. It follows that:

154. it was necessary, in order for service of the s 459G application on MHC to be effective, to comply with the requirements for service set out in ss 9 and 15(3) of the SEP Act;

155. the sending of the s 459G application to MHC’s solicitors in Adelaide, by email, did not comply with those requirements; and

156. therefore, GW Capital’s application to set aside the M&J Statutory Demand was not served on MHC within the 21-day period as required by s 459G of the Corporations Act.

157. Although the s 459G application and supporting affidavit were received by MHC at its registered address on 6 March 2026, such receipt occurred more than 21 days after the service of the M&J Statutory Demand. Where the Court’s jurisdiction has not been validly invoked, because the creditor has not been served with the s 459G application within the 21-day period as required by s 459G(3), subsequent service of the application on the creditor in accordance with the SEP Act will not validly invoke that jurisdiction: In the matter of 8D Pty Ltd [2013] NSWSC 1297 at [10] (Black J), referring to David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 276-277; [1995] HCA 43 per Gummow J (with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed).

Declaratory relief?

155. GW Capital sought, in the event that the Court determined the issue of service adversely to GW Capital, a declaration that the M&J Statutory Demand was null and void.

156. This relief was sought on the basis that the M&J Statutory Demand failed to comply with the requirements of Form 509H, as required by s 459E(2)(e) of the Corporations Act. In particular, it did not specify – as required by paragraph 6 of Form 509H – an address for service of a s 459G application “in the State … in which the demand is served on the company” (being New South Wales).

157. A similar issue arose in In the matter of International Materials & Technologies Pty Ltd (2013) 282 FLR 362; [2013] NSWSC 787. Brereton J there observed as follows (at [16]):

“… the demand was served on the company in New South Wales. The address for service specified in paragraph 6 ought to have been an address in New South Wales. In that event, no difficulty with service outside the jurisdiction, nor any need to rely on the Service and Execution of Process Act, would have arisen. Moreover, the address for service specified in Victoria was not the registered office of the company but the address of solicitors acting for it. In those circumstances, service at that address for service could not have been effective service under the Service and Execution of Process Act. In other words, paragraph 6, by inviting service at the offices of the solicitor, effectively was calculated to entrap the debtor into failing to comply with the requirements of the Service and Execution of Process Act and thereby precluding it from making a valid and effective application to set aside the creditor’s statutory demand. I do not for a moment suggest that this was intended, but that is the plain effect of the use in paragraph 6 of an address for service other than one in the state and even, if out of the state, other than the registered office. This is what Byrne J referred to as potentially misleading. In my view, it goes far beyond potentially to be positively misleading and, as I have said, practically having the effect of entrapping the debtor into not making a valid application to set aside the demand.”

158. His Honour referred (at [19]) to Beralt Pty Ltd v Joe Battaglia Plastering Pty Ltd [2001] 1 Qd R 232; [1999] QSC 202, where Ambrose J held that a purported statutory demand was fundamentally deficient because it did not contain the requisite words referred to in paragraph 5 of Form 509H “that the application must be made within 21 days after the demand was served”, and was therefore ineffective for the purposes of s 459E. Brereton J concluded that this reasoning was equally applicable to the failure to apply with the requirements of paragraph 6 of Form 509H (at [20]-[21]):

“In my view, the defect in the present case is at least as serious and fundamental as the one referred to by his Honour in Beralt. Both of those requirements of Form 509H are intended to enable a debtor to make a valid application to set aside the demand. Just as the failure to include the words referred to in paragraph 5 failed to notify the debtor of that matter in Beralt, so in this case the non-compliance with the requirement to provide an address for service within the state in which the demand was served deprived the debtor company of the ability to make a valid application to set aside the demand, and was calculated to mislead it into making an ineffective application. That defect was in my view so serious and fundamental as to deprive the demand of the quality or character of a demand under s 459E in that it failed, in a material and fundamental way, to comply with the prescribed form referred to in s 459E(2)(e).

As it is a nullity, in my view the appropriate course is to declare that the demand is null and void, which will have the effect of precluding any subsequent reliance on it.”

159. GW Capital submitted that this reasoning should be applied in the present case, and that the Court should declare the M&J Statutory Demand null and void.

160. In response, Counsel for Mark, Jane and MHC raised a number of matters, which were, in summary, as follows.

161. First, the approach in International Materials has not been met with universal approval and a number of cases have declined to follow that decision: see, for example, PrimeSpace Property Investment v Vienne Pty Ltd [2015] FCA 326 at [24]; Slap Corporation Pty Ltd v Civil, Infrastructure & Logistics Pty Ltd (2017) 50 VR 542; [2017] VSC 168 at [38]-[74]; SP Hay Pty Ltd v David Gray and Co Pty Ltd (2019) 133 ACSR 504; [2019] SASC 6 at [23]-[26]; and Re Lifestyle Residences Hobsons Bay Pty Ltd (recs & mgrs apptd*)* [2023] VSC 179 at [59]-[66]; and see also the review of authorities by Black J in In the matter of Leasing Holdings Pty Ltd (formerly Charlie Lovett Pty Ltd) [2015] NSWSC 771 at [15]-[28].

162. Secondly, it has been observed in a number of those decisions that the reasoning in International Materials may be inconsistent with the intermediate appellate decision in Elan Copra Trading Pty Ltd v J K International Pty Ltd (2005) 226 ALR 349; [2005] SASC 501: see, in particular, Slap Corporation at [59]-[70], SP Hay at [24]-[26] and Lifestyle Residences at [63]-[66].

163. Thirdly, in In the matter of Urban Solutions Group Pty Ltd [2015] NSWSC 1940 at [3], Black J observed that, while the Court may “in exceptional circumstances” make some form of declaration regarding a statutory demand in circumstances where a valid s 459G application is not before the Court (referring to International Materials), this “is the exception rather than the rule, and cannot be permitted to become the rule, lest the time limit within which an application to set aside a creditor’s statutory demand under s 459G of the Act must be brought is subverted and the legislative purpose which it is intended to achieve is defeated”.

164. Fourthly, where an application to set aside a statutory demand is brought out of time, the proper forum to raise alleged defects in the demand – including alleged defects as to the specification of an interstate address for service contrary to the requirements of Form 509H – is at the hearing of any winding up application: Urban Solutions at [13]; and Kookaburra Educational Resources Pty Limited v MacGear Limited Partnership trading as MacGear Australia, in the matter of Kookaburra Educational Resources Pty Limited [2021] FCA 797 at [74].

165. Fifthly, whether the specification in a statutory demand of an address for service outside the State is misleading, to the extent necessary to either invalidate the demand or give rise to substantial injustice (within the meaning of s 467A of the Corporations Act), will depend upon the circumstances of each case. In particular, a relevant consideration is whether the defect was causative of an applicant’s failure to make an application to set aside the demand in accordance with the requirements of s 459G of the Corporations Act: Leasing Holdings at [16], [27]; and In the matter of Black Tie Holdings Pty Ltd [2022] NSWSC 781 at [171]-[172].

166. It is unnecessary, for the purpose of disposing of the present application, to address any conflict between the authorities regarding the consequences of a failure to comply with the requirements of paragraph 6 of Form 509H.

167. GW Capital accepted that, where there is a defect in a statutory demand, the Court has a discretion as to whether to make a declaration that the statutory demand is null and void, and that the Court would only do so in exceptional circumstances.

168. In the present case, GW Capital’s application in respect of the M&J Statutory Demand has been heard with its applications in respect of the Tony Statutory Demand and the P&W Statutory Demand (with evidence in each application being evidence in the others). Further, GW Capital raised the same matters as giving rise to a genuine dispute in respect of each of those statutory demands (being the contentions raised in relation to estoppel and waiver).

169. Accordingly, I have not only determined that GW Capital’s s 459G application in respect of the M&J Statutory Demand was not served in accordance with the requirements of s 459G(3) of the Corporations Act (which is a matter going to jurisdiction), but I have also determined – in resolving the applications in respect of the Tony Statutory Demand and the P&W Statutory Demand – that none of the matters relied upon to give rise to a genuine dispute in respect of the M&J Statutory Demand has been established.

170. Given that this is so, GW Capital cannot establish that it has suffered any prejudice as a result of the failure of the M&J Statutory Demand to specify an address in NSW. That is because, even assuming that this defect was causative of GW Capital’s failure to comply with the requirements of s 459G(3), the only consequence of such failure is that GW Capital has not validly invoked the Court’s jurisdiction in respect of its application concerning the M&J Statutory Demand, and this application would have, in any case, failed on the merits.

171. Counsel for GW Capital submitted that, in those circumstances, the Court might nonetheless exercise its discretion to grant declaratory relief in respect of the M&J Statutory Demand:

“All I can say is that the injustice is that a [creditor] isn’t able to proceed with a misleading statutory demand that leads a debtor into error, and that that is a matter where the Court may wish to indicate their disapproval of such an approach. That is as high as I can put it, but I expressly concede that it is an exercise of discretion on the part of the Court to make the declaration that we seek.”

172. However, there is no reason to find (and GW Capital did not submit) that Mark, Jane, MHC or their solicitors were aware that there was a defect in the M&J Statutory Demand, let alone that there was any intention to lead GW Capital into error so far as concerns the need to comply with the requirements of the SEP Act. Further, the evidence establishes that GW Capital’s solicitor was aware of the need to comply with the requirements of the SEP Act as, when sending the s 459G application and supporting affidavit to Griffins Lawyers by email, he attached a copy of the notice required under s 16 of the SEP Act (see paragraph [126] above). Further, GW Capital’s solicitor served those same materials on MHC – including the notice under the SEP Act – to MHC by mail to its registered office, but, for reasons that were not explained, only sent those materials one day after the statutory period had expired (see paragraph [127] above).

173. Having regard to the matters set out above, I am not satisfied that the Court should, in the exercise of its discretion, grant the declaratory relief sought.

Conclusion – M&J Statutory Demand

174. For the reasons set out above, I have determined that the s 459G application in respect of the M&J Statutory Demand was not served on MHC in accordance with the requirements of the SEP Act within the 21-day period required by s 459G(3) of the Corporations Act, and I have declined to make any declaration that the M&J Statutory Demand is null and void.

175. Further, if (contrary to my conclusions) GW Capital’s application to set aside the M&J Statutory Demand was served in accordance with the requirements of s 459G of the Corporations Act, I would have rejected this application on the basis that GW Capital had failed to establish the existence of any genuine dispute about the debts claimed in the M&J Statutory Demand or any genuine offsetting claim.

176. Accordingly, I will make orders in proceeding 2026/90750 that the Amended Originating Process is dismissed, with costs.

Orders

177. For the reasons set out above, I make the following orders.

178. In proceeding 2026/90750:

179. The Amended Originating Process filed on 31 July 2026 be dismissed.

180. The Plaintiff pay the Defendants’ costs of the proceeding, as agreed or assessed.

181. In proceeding 2026/119158:

182. The Originating Process filed on 23 March 2026 be dismissed.

183. The Plaintiff pay the Defendants’ costs of the proceeding, as agreed or assessed.

184. In proceeding 2026/119167:

185. Order that the creditor’s statutory demand dated 27 February 2026 issued by the Defendants be varied by amending the amount of $2,475,274.00 claimed to $2,325,275.00.

186. Declare that the creditor’s statutory demand dated 27 February 2026 issued by the Defendants take effect, as varied by Order 1 above, from when the demand was served on the Plaintiff.

187. The Originating Process filed on 23 March 2026 otherwise be dismissed.

188. The Plaintiff pay the Defendants’ costs of the proceeding, as agreed or assessed.

**********

Amendments

13 August 2026

Certification clause removed