Missay Pty Ltd v Seventh Cameo Nominees Pty Ltd

Supreme Court of Victoria|2000-09-08|Before: Mandie J

PRACTICE AND PROCEDURE - appeal from Master - whether special leave should be granted to rely upon further affidavits. CORPORATIONS - application to set aside statutory demand - new ground raised on appeal.

In my view this appeal from the Senior Master should be dismissed. The application before the Senior Master was an application under s.459G Corporations Law to set aside a statutory demand and it was made on the basis that there was a genuine dispute as to the debt. That ground having been ventilated before the Master and dismissed an appeal is now brought and I am told by counsel for the appellant that the ground relied upon before the Master is no longer relied upon but instead the appellant seeks special leave to rely on new affidavits not before the Master which raise a new ground for the application which was not relied on before the Master, namely that there are offsetting credits arising from other transactions.

It seems to me that that course of conduct by the appellant is the very course of conduct which Rule 77.05(7)(b) of Chapter 1 is designed to prevent, namely, to enable an applicant to have a run before the Master and then to run completely new points before the Judge on appeal. That to my mind is sufficient reason in itself to refuse the special leave which the appellant needs and if that special leave is refused, namely to rely upon affidavits and evidence not used or given before the Master, there is no other basis for the appeal to succeed and it would necessarily have to be dismissed. I think that there is another reason for refusing special leave because it seems to me that the interpretation of the Corporations Law contained in D&S Group of Companies Pty Ltd v O'Connor Investments Pty Ltd (1997) 15 ACLC 1794 at 1798 is applicable and should be followed by this court. If a ground in support of an application to set aside a statutory demand is not identified within the period provided by the Corporations Law then it seems to me that it cannot be relied upon out of time upon appeal. So that is an additional reason why special leave should be refused.

There is a further point of somewhat more fundamental nature which I need not decide and that is whether the time for compliance with the statutory demand keeps on running if a notice of appeal is given within the time for compliance with the statutory demand, the argument being that the application to set aside the statutory notice is not finally determined if an appeal is put in while time is still running. That is an interesting question but I need not determine it on this appeal. The appeal is dismissed.

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