McPherson Project Services Pty Ltd v Nine2Three Employment Solutions Pty Ltd

CATCHWORDS : CORPORATIONS - winding up - statutory demand - application for order setting aside - requirement under s 459G(3)(a) for affidavit - document not showing on its face that it was sworn before anyone - no extrinsic evidence of swearing - various irregularities asserted - none productive of injustice - allegation of genuine dispute - no facts showing dispute deposed to in supposed affidavit

LEGISLATION CITED : Corporations Act 2001 (Cth), ss 109X. 459G, 459H. 459J Oaths Act 1900

David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 CASES CITED : Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299 Graywinter Properties Pty Ltd v Gas and Fuel Corporation of Victoria (1996) 21 ACSR 581 R & R Consultants Pty Ltd v Deputy Commissioner of Taxation [2006] NSWSC 1152

PARTIES : McPherson Project Services Pty Limited - Plaintiff Nine2Three Employment Solutions Pty Limited - Defendant

COUNSEL : Mr M McPherson (director in person) - Plaintiff Ms V E Whittaker - Defendant

SOLICITORS : Mr M McPherson (director in person) - Plaintiff Clayton Utz - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

2136/08 McPHERSON PROJECT SERVICES PTY LIMITED v NINE2THREE EMPLOYMENT SOLUTIONS PTY LIMITED

1 The plaintiff makes application under s 459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on it by the defendant. The debt or alleged debt to which the statutory demand relates is in the sum of $7,239.39, being the aggregate of sums claimed in five invoices to which reference is made in the schedule to the statutory demand.

2 The defendant has raised a threshold objection to the competency of the s 459G application. 3 It is provided by s 459G(3) that an application is made in accordance with s 459G only if, within the period of 21 days to which the section refers, two things have happened. One of them is "an affidavit supporting the application is filed with the court": s 459G(3)(a).

4 The document the plaintiff relies upon as an affidavit supporting the application is a document which begins, "I Mark McPherson of Level 1/317 The Kingsway, Caringbah in the State of New South Wales make oath and say". Then follow nine numbered paragraphs. After that there is a space for a date, but no date appears. There is then a signature under which are the typewritten words "Signature of Mark McPherson, Director of the plaintiff".

5 The defendant takes the point that this is not an affidavit at all. I had occasion recently in Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299, a decision of 8 April 2008, to examine the requirement imposed by s 459G(3)(a) that there be "an affidavit", noting that, in the present context, the question whether a document is an affidavit is to be determined according to the law of New South Wales. I need not go again into the detailed analysis. 6 One of the essential characteristics of an affidavit that is sworn (rather than affirmed), as this one purports to be, is that it is sworn in the presence of an official having authority under the Oaths Act 1900 to administer an oath who then appends his or her signature to show that the deponent has actually appeared before that person, been put upon his or her oath and, while on oath, has signed the document.

7 The absence of any indication that the deponent or supposed deponent appeared before any official recognised by the Oaths Act and that an oath was administered, so that the affidavit was sworn before that official, is fatal to the contention that the document is an affidavit - unless extrinsic evidence is tendered and received to prove those matters. No attempt has been made to adduce extrinsic evidence to show that the requirement of due swearing was observed.

8 The absence of an affidavit is fatal to the plaintiff's claim. The High Court made it clear in David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 that non-compliance with s 459G(3) cannot be the subject of extension of time or other dispensation by the court. On this ground alone, therefore, the present application for an order under s 459G must be dismissed.

9 I proceed nevertheless to deal briefly with the merits of the case. The grounds relied on by the plaintiff are the irregularity ground made available by section 459J and the genuine dispute ground made available by section 459H.

10 In relation to the former, there are several aspects. First it is said that the statutory demand and supporting affidavit as actually served were photocopies. The served documents have now been produced to the court. In the case of the statutory demand it is clearly not a photocopy. It is signed in blue ink. In the case of the accompanying affidavit, there may be some doubt, but to my eye it appears to be an original signed with a black ballpoint pen. In any event, as the decision of White J in R & R Consultants Pty Ltd v Deputy Commissioner of Taxation [2006] NSWSC 1152 makes clear, the fact that a photocopy document rather than an original had been delivered would not be productive of the kind of injustice that is necessary to warrant an order based on a ground in s 459J.

11 The second point raised by the plaintiff is that the statutory demand was not delivered to the registered office of the plaintiff. It was served at the office of Crimmins & Co, a firm of accountants. 12 Search materials obtained from ASIC and put into evidence show that, at the date of service, the registered office was at the office of Crimmins & Co, Unit 8/64 Croydon Street, Cronulla. It had been there, according to the search, since 14 August 2005. By virtue of a subsequent lodgement, the address of the registered office was altered to an address in Caringbah as from 17 April 2008, which is after service of the statutory demand. Having regard to the provisions of s 109X of the Corporations Act, service at the accountants' office that was then the registered office was good service.

13 The third matter raised by reference to s 459J is that an alteration to the affidavit accompanying the statutory demand was not initialled. The alteration is in the jurat to the affidavit where it says, "Sworn at Sydney this second day of March 2008", with a typewritten "February" having been crossed out and "March" having been substituted by hand - from which one may infer that the document was prepared and typed in the expectation that swearing would occur in February, whereas it did not occur until 2 March. That cannot in any sense be productive of the kind of injustice with which s 459J is concerned.

14 Turning to the s 459H ground and the question of genuine dispute as to the existence or amount of the debt, the point made on behalf of the defendant is that the affidavit supporting the s 459G application (which, as I have said, is not in truth an affidavit at all) does not state any basis for the assertion that there exists any such genuine. Paragraphs 7, 8 and 9 of the affidavit are as follows: "7. I have made extensive enquiries into the alleged claims which is the subject of the Creditor's Statutory Demand, and verily believe that there is a general dispute between the Plaintiff and the Defendant in relation these claims. 8. Correspondence has been forwarded to the Legal Representative of the Defendant detailing the dispute and a request made to set aside the Creditor's Statutory Demand by Consent. 9. The Defendant by its Legal Representative, has advised in writing that they would not consent to set aside the Demand." 15 These paragraphs assert the existence of a dispute, but do not describe it or allow the reader of the supposed affidavit to obtain any insight into the nature of the dispute of or the grounds on which it is said that it exists. The content of the affidavit therefore fails the test laid down in Graywinter Properties Pty Ltd v Gas and Fuel Corporation of Victoria (1996) 21 ACSR 581. Sundberg J there said: "In a section 459H(1)(a) case, the affidavit must in my view disclose facts showing there is a genuine dispute between the parties. A mere assertion that there is a genuine dispute is not enough, nor is a bare claim that the debt is disputed sufficient. It follows from the fact that the affidavit need not go into evidence, which is the customary function of an affidavit that it may read like a pleading.

An affidavit which exhibits an exchange of correspondence between the parties or between their solicitors, from which it appears that a claim is made and rejected for reasons given, can qualify as a supporting affidavit and an affidavit therefore in the pleadings in an action may qualify." 16 In this case, the supposed affidavit amounts to no more than mere assertion. It refers to but does not annex correspondence "detailing the dispute" (para 8). There is thus no statement of the facts showing dispute. 17 As I have said, my finding about the absence of the affidavit made necessary by s 459G(3)(a) is itself sufficient to cause the plaintiff's application to be dismissed. The other matters to which I have referred reinforce that conclusion.

18 The application for an order setting aside the statutory demand is dismissed with costs. **********

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