Newsnet Pty Limited v Patching

Background Facts 6The statutory demand was served on the plaintiff by post. The solicitor for the defendant deposed that on 6 April 2011 she posted the statutory demand in a pre-paid envelope addressed to the plaintiff at its registered office. The demand claimed that the plaintiff owed the defendant the sum of $57,839.38. The alleged debt was described in the schedule to the demand as " unpaid wages (exclusive of tax) payable pursuant to an employment contract between Newsnet Pty Limited and Roy Patching ". Paras 5 and 6 of the statutory demand stated: " 5. Section 459G of the Corporations Act 2001 provides that a company served with a demand may apply to a court having jurisdiction under the Corporations Act 2001 for an order setting the demand aside. An application must be made within 21 days after the demand is served and, within the same period: (a) an affidavit supporting the application must be filed with the court; and (b) a copy of the application and a copy of the affidavit must be served on the person who served the demand. ... 6. The address of the creditor for service of copies of any application and affidavit is Middletons, Level 26, 52 Martin Place, Sydney in the [S] tate of New South Wales. " 7The plaintiff's originating process was filed on 3 May 2011. It stated: " A. DETAILS OF APPLICATION This application is made under s 459G of the Corporations Act 2001. It is an application by the Plaintiff for orders setting aside the statutory demand, served on it by the Defendants. On the facts stated in the supporting affidavit the Plaintiff claims:

1. An order that the statutory demand dated 5 April 2011 served by the Defendant on the Plaintiff on 13 April 2011 be set aside. ... " 8The plaintiff also filed an affidavit on 3 May 2011 by a Mr Selva Thiru. He deposed: " 1. I am the DFO of Newsnet Pty Ltd ('the Plaintiff') and am authorized to swear this affidavit on its behalf.
2. The amount claimed has been calculated incorrectly by failing to allow for payments already made to the Defendant.
3. Annexed hereto marked 'A' is a letter of demand received by the Plaintiff on the day of 13 April 2011.
4. I have contacted the Defendant's solicitor to obtain details of the sum claimed being $57,839.38 but it has not been forth coming.
5. No response has been forthcoming to my query for particulars.
6. A genuine dispute exists between Plaintiff and the Defendant in relation to the alleged debt.
7. I request this honourable [sic] to make the orders sought in the Originating Process. " 9Notwithstanding paragraph 3 of the affidavit, there was no annexure "A". 10On 3 May 2011 the plaintiff's solicitor sent a facsimile addressed to Ms Rachel Carter of Middletons stating: "Dear Rachel, Please find attached an Originating Process and Affidavit filed in the Supreme Court today. I will send you the originals by mail. " 11Ms Carter annexed a copy of that facsimile to her affidavit. The copy annexed has a heading stating " 03 May 2011 17: 41 HP LASERJET FAX ... ". The facsimile received by Middletons was a complete copy of the originating process and affidavit as filed. 12Ms Carter deposed that although the facsimile was received by her office's facsimile machine at 5.31 (sic) pm on 3 May 2011, it did not come to her attention until 4 May 2011 when it was sent to her email box by the office staff of Middletons. 13On 5 May 2011 Ms Carter received a copy of the originating process and supporting affidavit that had been sent to Middletons through the mail. 14The defendant contended that the originating process and supporting affidavit were not served until the documents that had been posted were received by Middletons which, it was said, did not take place until 5 May 2011. The defendant did not contend that service at Middletons at the place stated in the statutory demand as the address for service was not effective. However, the defendant did contend that service by facsimile was not good service, whether service was taken to be effected on 3 May 2011 when the document was received by Middleton's facsimile machine and apparently printed, or 4 May 2011, when it was actually received by the solicitor having the carriage of the matter. As the originating process admitted that the statutory demand was served on 13 April 2011, the defendant submitted that service on 5 May 2011 was outside the prescribed period of 21 days. 15The defendant also submitted that service should be presumed to have been effected on 12 April 2011, not 13 April 2011, so that service was only effected within time if effected by 3 May 2011.

Service within 21 days 16It can be taken from the originating process that the statutory demand was not served later than 13 April 2011. The supporting affidavit of Selva Thiru does not establish that the statutory demand was served on 13 April 2011. That is so for two reasons. The first is that the affidavit did not include the annexure described as a " letter of demand ". It will be open to the plaintiff at the hearing to tender the document referred to. In any event, if the letter of demand referred to was the statutory demand, Mr Thiru's affidavit does not establish whether 13 April 2011 was the time the demand was received at the plaintiff's registered office, or whether it was the date received by a relevant officer of the plaintiff. The latter date would be irrelevant. 17The defendant submitted that service should be presumed to have been effected four business days after posting. This was said to be consistent with s 160 of the Evidence Act 1995 (Cth). The relevant Act to be applied is the New South Wales Evidence Act 1995, but s 160 is in the same terms. However, the presumption in s 160 only arises in the absence of evidence as to when the document to be served was delivered to the address for service, or, if it is established that the demand was despatched in the ordinary course of post, in the absence of evidence as to when the document would be delivered in the ordinary course of post ( Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill [2007] NSWSC 278; (2007) 70 NSWLR 176 at [38], 186-187). At trial it might be determined that the statutory demand was served on 13 April 2011 or prior to 13 April 2011. That is a triable question of fact. On this summary judgment application it cannot be assumed that the statutory demand was served prior to 13 April 2011. 18It follows that this ground for seeking summary dismissal of the originating process is not established if service of the originating process and supporting affidavit by facsimile on either 3 or 4 May 2011 was good service. 19Section 109X of the Corporations Act specifies the ways in which a document may be served on a company. The modes specified are not exhaustive. However, s 109X has no application in the present case, as the person to be served was not a company, but an individual. 20Rule 10.20(2)(a) of the Uniform Civil Procedure Rules 2005 requires that an originating process be personally served. Personal service is effected under r 10.20 by leaving a copy of the document with the person, or, if the person does not accept it, putting it down in his or her presence and telling the person the nature of the document. The defendant was not served personally in this way. In The Site Foreman Pty Limited v Brand [2011] NSWSC 451 Barrett J held that personal service of an originating process to set aside a statutory demand is also effective if service is effected in accordance with s 28A of the Acts Interpretation Act 1901 (Cth). That section provides: " 28A Service of documents (1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression 'serve', 'give' or 'send' or any other expression is used, then, unless the contrary intention appears, the document may be served: (a) on a natural person: (i) by delivering it to the person personally; or (ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or (b) on a body corporate-by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate. (2) Nothing in subsection (1): (a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or (b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection. " 21Service was not effected on the defendant in accordance with that section. It was not delivered to him personally. Middletons' office was not his last known place of business or residence. 22In The Site Foreman Pty Limited v Brand Barrett J also said: "[26] It has been held in a number of cases that service of copies of a s 459G application and supporting affidavit may be effected at the address specified in para 6 of a statutory demand. That, it seems, to me is axiomatic, given the terms of para 6 and the direction as to its completion set out in Form 509H as prescribed pursuant to the Corporations Regulations 2001 (Cth): 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). [27] There is, perhaps, room for some doubt as to precisely what (short of personal service) may be sufficient to constitute service on a natural person defendant at a para 6 address if that address is not also, in terms of s 28A, the defendant's place of residence or business last known to the plaintiff. That, however, is not a matter that calls for discussion in this case." 23Section 459G(3)(b) requires a copy of the application to set aside the statutory demand and supporting affidavit to be " served on the person who served the demand on the company ". Counsel for the defendant did not dispute that a copy of the originating process and supporting affidavit would be " served on the person who served the demand on the company " within the meaning of s 459G(3)(b) if service were effected at the address for service specified in the statutory demand. That must be so. A statutory demand is required to be in the prescribed form (s 459E(2)(e)). The prescribed form is form 509H (Corporations Regulations 1.0.03(1) and Schedule 1 column 1 item 51H). The prescribed form for a Creditor's Statutory Demand for Payment of Debt includes: " 6. The address of the creditor for service of copies of any application and any 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). " 24The necessary implication is that a copy of an application under s 459G to set aside a statutory demand and a copy of the supporting affidavit can be served by the documents being served at the address for service stated in the demand. If solicitors are acting for the creditor, that address is to be the address of the solicitors. Service is not required to be made by a document being personally delivered to, or even received by, a specified individual. 25In Players Pty Ltd v Interior Projects (1996) 14 ACLC 918 Lander J held that service at the address for service in the statutory demand was effective and that personal service of the originating process and supporting affidavit on the creditor was not required. Young J (as his Honour then was) agreed with this conclusion in Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 at 544. Other cases in which service at the address for service specified in the statutory demand have been held to be good service, although the creditor was not personally served include Australian Underwriting Agencies Pty Ltd v QBE Insurance Ltd (1997) 17 ACLC 22; Seventh Cameo Nominees Pty Ltd v Holdway Pty Ltd (Supreme Court of Victoria, 24 April 1998, unreported, Chernov J); Forza Finance Pty Ltd v Vergepoint Sales & Management Pty Ltd [2010] QSC 46 at [12] and [14]; DB Mahaffy & Associates Pty Ltd v Mahaffy [2010] NSWSC 881 at [48]; and Renegade Rigging Pty Ltd v Hanlon Nominees Pty Ltd [2010] VSC 385 at [48]. In Rochester Communications Group Pty Ltd v Lader Pty Ltd (1997) 143 ALR 648 Beaumont and Moore JJ also agreed with the conclusion of Lander J in Players Pty Ltd v Interior Projects Pty Ltd that service of an application and supporting affidavit under s 459G could be effected at the address for service stated in the statutory demand and did not have to be effected personally (at 669, 680). 26The effect of these decisions is that notwithstanding the requirement in s 459G(3)(b) that service of a copy of the application and statutory demand be made " on the person who served the demand " service will be effective if made at the place specified in the statutory demand as the address for service. As Young J said in Howship Holdings Pty Ltd v Leslie at 544 the requirement of the regulations that the prescribed form of statutory demand include an address for service was within power and assists in the ordinary working out of the Act. 27In considering the cases dealing with the validity of service by facsimile, it is important to bear in mind the context in which the question of service fell for decision. In some of the cases the relevant process had to be served personally, and in some of those cases the validity of personal service was determined by whether a statute or rule of court prescribing a mode of service was satisfied. Thus, in Howship Holdings Pty Ltd v Leslie the report does not state what address for service had been stated in the statutory demand. The document was served through the Document Exchange. That was not an address and presumably the plaintiff could not rely upon compliance with paragraph 6 of the statutory demand. Thus, the document had to be served personally, but Young J held that service was nonetheless valid if it was effective to bring the document into the possession of the person to be served (at 544-545). Similarly, in Dwyer & Anor v Canon Australia Pty Ltd & Ors [2007] SASC 100 the question was whether an originating process seeking an extension of time under s 588FF(3) of the Corporations Act had been served within time. Debelle J noted that service by facsimile was not authorised by the relevant rules of court and said that the common law requirements for service would be satisfied if there were proof that the documents sent by facsimile were received in complete and legible form (at [27]). His Honour held that that had not been proved and that evidence of the sending of a document by facsimile was not sufficient proof that the document had been received in complete and legible form (at [29]-[30]). 28It is a mistake to draw from such authorities the conclusion that in all cases service by facsimile is only effective upon the document coming into the possession of the person to be served. In some cases personal service is required under rules of court. The Uniform Civil Procedure Rules provide that personal service is effected by leaving a copy of the document with the person, or, if the person does not accept it, putting it down in his or her presence and telling the person the nature of the document (Uniform Civil Procedure Rules, r 10.21(1)). Cases such as Howship Holdings Pty Ltd v Leslie allow for informal service if the document comes into the possession of the person to be served. 29Personal service of an application to set aside a statutory demand on an individual may also be made pursuant to s 28A(1)(a)(ii) of the Acts Interpretation Act by " leaving it at " the last known place of residence or business of the person to be served. That provision was considered by Austin J in Austar Finance v Campbell [2007] NSWSC 1493 who considered it arguable that a facsimile transmission could be " left at " the place of business or residence of the defendant if a complete and legible copy of the document was received at that place by facsimile transmission (at [75]), but service was not effective in that way in that case because transmission of the copy of the filed document was incomplete. 30A third way in which service of an application to set aside a statutory demand may be effected is at the address for service specified in the demand. In Seventh Cameo Nominees Pty Ltd v Holdway Pty Ltd Chernov J held that service by facsimile of an application to set aside a statutory demand was effective when the application and supporting affidavit was successfully transmitted. Chernov J said: " I agree with Lander J in Players Pty Ltd v Interior Projects (1996) 20 ACSR 189, that the combination of s459E, the prescribed form of statutory demand under it, and s459G, shows that the legislation contemplates that the application under s459G(3) may be served on the creditor at the address shown on the statutory demand. A like conclusion was reached by Young J in Howship Holdings Pty Ltd v Leslie (1996) 21 ACSR 440 at 442. In my view, it is sufficient for the purposes of s459G(3) if copies of the application and affidavit are served at the relevant address, that being the address nominated by the giver of the statutory notice. Thus, service may be effected if copies of the relevant documents are left at the nominated address. In a sense, how they come to be left there is irrelevant (see Young J in Howship Holdings Pty Ltd v Leslie , at p442). For instance, the copy documents may be left by someone attending at the address in question and leaving them there. If that had occurred in this case, then in my view, proper service would have been effected of the relevant documents. The same object is achieved if the copies arrive at that address as a result of being sent by way of a facsimile transmission. What is required by s 459G(3) is that the respondent should receive copies of the relevant documents at the address nominated by it. Once that has occurred, the requirement of s 459G(3) as to service of the relevant documents is satisfied." 31In that case the facsimile transmission was received by the creditor serving the demand, but personal receipt by the creditor, as distinct from receipt at the nominated address, was not essential to the decision. 32In some of the cases the address for service specified in the statutory demand included a facsimile transmission number. Service at the number stated was good service ( Australian Underwriting Agencies Pty Ltd v QBE Insurance Ltd ; Renegade Rigging Pty Ltd v Hanlon Nominees Pty Ltd at [45]-[46], [48]). 33In Woodgate v Garard Pty Ltd [2010] NSWSC 508; (2010) 78 ACSR 468 Palmer J reviewed the authorities. His Honour summarised the principles he drew from the preponderance of authority as follows (at [44]): " i) if a document required to be served on a company by the Corporations Act , whether or not it initiates proceedings, is served in accordance with any of the modes prescribed in s 109X Corporations Act and s 28A Acts Interpretation Act 1901 (Cth) or, in the case of a s 459G application, at an address for service nominated in the Statutory Demand (all of which are included in 'a prescribed mode'), the document is validly served and once service in a prescribed mode is proved, a proceeding cannot be challenged on the basis that the document did not actually come to the attention of the company: Austar Finance Group Pty Ltd v Campbell (supra) at [40]; Allianz Australia Workers' Compensation (NSW) Ltd v Woodfast Joinery (Aust) Pty Ltd [2003] NSWSC 587; Rochester Communications (supra); James v Ash Electrical Services (supra) at [27]; Telstra Corporation Ltd v Ivory [2008] QSC 123, at [61] per Lyons J; Forza Finance Pty Ltd v Vergepoint Sales & Management Pty Ltd [2010] QSC 46, at [14]-[16] per Daubney J; ii) where service is effected by leaving the document at the company's registered office in accordance with s 109X(1)(a), it makes no difference whether the document is left within or outside normal business hours or within or outside the hours at which that office is kept open, and the date of service is the date of leaving the document, not when it comes to someone's attention: Cornick Pty Ltd v Brains Master Corporation (1995) 60 FCR 565; SV Steel Supplies Pty Ltd v Palwizat [2009] QSC 24, at [30], [31]; Nutri-Care Ltd v ACN 080 633 754 Pty Ltd [2009] SASC 72; Career Training on Line Pty Ltd v BES Training Solutions Pty Ltd [2010] NSWSC 460, at [28], [29] per Barrett J. ... iv) the prescribed modes are not exclusive of other modes of service: if some other mode of service is employed, whether it is good service depends upon whether the serving party can prove to the Court's satisfaction that the document actually came to the attention of an officer of the company who was either expressly or implicitly authorised by the company to deal directly and responsively with the document, or documents of that nature ( ' a responsible officer ' ): see the cases referred to in paragraph 42; v) there is no special exception to the 'effective informal service rule ' in the case of service by e-mail or facsimile - the question remains whether that mode of service actually brought the document to the attention of a responsible officer: Austar Finance (supra) at [49]; Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) (1996) 69 FCR 531, at 550 per Lehane J; Millerview Constructions Pty Ltd v Palmer Plumbing Pty Ltd [2008] QSC 3, at [11]; Dwyer v Canon Australia (supra) at [7]; cf Fingalbay Pty Ltd v Rengay Nominees Pty Ltd (1997) 142 FLR 340; Griffith Producers Co-operative Co v Calabria (supra); vi) where a document, not served in a prescribed mode, comes to the actual attention of the sole director of a company it will be presumed, unless a strong case to the contrary is shown, that the director is the responsible officer and that service is good: Emhill (supra) at [28]; Polstar (supra) at [24]; vii) a party invoking the effective informal service rule bears the onus of proving the time at which the document came to the actual attention of a responsible officer of the company and, in view of the serious consequences which may attend, the Court will not lightly draw inferences or make assumptions as to the time of service: Howship (supra) at 547C. " 34His Honour appears to treat service by email or facsimile as not being a " prescribed mode" of service and therefore only effective if brought to the attention of the relevant officer of the creditor. 35However, the regulation authorising service of an application and supporting affidavit under s 459G does not prescribe any mode by which the documents can be served at the address for service. Given that personal service on an individual is not required, and there is no rule of court or statute prescribing particular modes of service, the principles about effective informal service do not arise. 36The Uniform Civil Procedure Rules regulate the mode of service of documents in court proceedings on a party having an address for service (Uniform Civil Procedure Rules, r 10.5). Service by facsimile is an authorised mode of service only if the person's address for service is a solicitor's office and the notice advising the address for service includes a facsimile number (r 10.5(2)(b)). No reliance was placed by either party on r 10.5. Prima facie it applies only to service of documents once proceedings in the court have been commenced and the opposite party has given notice of its address for service either in the originating process or notice of appearance. 37Counsel for the defendant relied upon Opensoft Australia Pty Ltd v Miller Street Pty Ltd [2011] FCA 653. In that case a copy of an unfiled application to set aside a statutory demand was delivered personally to the address for service within the 21-day period. This service was ineffective because it was not service of the documents as filed. The creditor that served the statutory demand was Miller Street Pty Limited. The address for service in the statutory demand was given as " TW Agency, 251 Elizabeth Street Sydney, NSW, 2000 or 1323 Bourke Road, Kew, Victoria, 3101 ". Later the application and supporting affidavit as electronically filed, that is, bearing the court seal and the return date for the application, were sent by email to a director of the creditor and to the principal of TW Agency, a Mr Daud. The director of the creditor did not open the email before the expiry of the 21-day period. Mr Daud did. Jagot J noted that s 459G(3)(b) requires that a copy of the application and supporting affidavit be served on the person who served the demand on the company. That was Miller Street Pty Limited. Her Honour said that the address of the creditor for service was a place, namely the office of TW Agency at 251 Elizabeth Street, Sydney and that the creditor had not specified an electronic address for service. Her Honour accepted the submission for the defendant that it was not the place of TW Agency, or of Mr Daud as its principal, to accept service by means other than those specified in the statutory demand itself. Her Honour concluded that receipt by Mr Daud (presumably at the office of TW Agency) was not effective service for the purposes of s 459G(3)(b). Her Honour concluded that service had not been validly effected. 38Unless there is something to distinguish service by email from service by facsimile, I do not think that this decision can be reconciled with that of Chernov J in Seventh Cameo Nominees Pty Ltd v Holdway Pty Ltd . If the electronic copy of the application and supporting affidavit reached the office of TW Agency at the address specified in the statutory demand in a form that was complete and legible, in my view the copy would have been served at that address. I do not see why it would matter that the document was in electronic, and not paper, form. It would still be a copy of the application and supporting affidavit. There may be issues as to whether and when an email actually reaches the place for service. Austin J discussed this question in Austar Finance v Campbell at [48]. It is not necessary to express a view as to whether an email which is opened from a computer at the address for service without being printed is received at the address at which the computer is located. That will depend on the evidence. It may be that the user accesses the document stored remotely through his or her computer. If, however, the email were printed at the address for service, or if it were received in electronic form at the address for service, in my view a copy of the application and supporting affidavit would have been served at that address. 39Jagot J accepted the submission for the defendant that it was not the place of TW Agency to accept service by means other than those specified in the statutory demand itself. No doubt that is right, in the sense that service would have to be effected at the address for service, namely the specified place of business of TW Agency. But the creditor is required by the form of statutory demand to specify a place for service. In my view a creditor is not entitled to limit the ways in which an application to set aside the statutory demand and supporting affidavit can be delivered to the address for service. Provided the documents reach the relevant place in complete and legible form, service is effective. 40In Austar Finance v Campbell , Austin J said (at [49]): " [49] Notwithstanding these differences, in my view electronic transmission, whether by facsimile or email, cannot constitute service for the purposes of s 459G(3) unless either: · it is shown that the documents electronically transmitted have actually been received in a readable form by the person to be served; or · the case falls within one of the special exceptions permitted by rules of court. " 41I do not understand why it would be necessary for the purpose of effective service under s 459G(3)(b) that the document be actually received by the person to be served. Service at the address for service, that is, service to a place, is effective if made within time, whether or not the document is received by a person. For this reason I do not accept that service by facsimile can only be effective as informal service and only becomes effective when the document is brought to the attention of a responsible officer (compare Woodgate v Garrard Pty Ltd at [44(v)]). Nor do I accept that service at an address for service specified in the statutory demand can only be made in accordance with one of the ways prescribed by s 109X (in the case of service on a company), r 10.21 of the Uniform Civil Procedure Rules or s 28A of the Acts Interpretation Act . Those provisions are facultative, not exclusive. 42In this case the facsimile transmission was complete. It is a reasonable inference that the facsimile transmission was printed at the office of the defendant's solicitor on 3 May 2011. It is not necessary for the purposes of making effective service of an application to set aside a statutory demand that service be effected on a person, as distinct from being served at the place referred to as the address for service in the statutory demand. Accordingly in my view, service would be effective on the day the facsimile was received and printed at the office of the defendant's solicitor. It is a reasonable inference that that day was 3 May 2011. In any event it is clear that the facsimile was received in complete and legible form by the solicitor having the carriage of the matter on 4 May 2011. If service was not effected on 3 May 2011, it was effected on 4 May 2011. 43Accordingly, there is a real question to be tried that service of the originating process and affidavit were effected within the prescribed period.

The Graywinter principle 44In Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452, Sundberg J inferred from the requirement in s 459G that there be a supporting affidavit that the affidavit filed and served within the prescribed 21-day period must set out the grounds upon which the statutory demand is sought to be set aside. That principle is well established. It was applied by the Full Court of the Supreme Court of Western Australia in Energy Equity Corporation Limited v Sinedie Pty Ltd [2001] WASCA 419; (2001) 166 FLR 179. An application to the High Court for special leave to appeal from that decision was refused. 45It is also established that provided a ground for setting aside a statutory demand is sufficiently identified in the supporting affidavit, further evidence can be adduced by the applicant outside the 21-day period in support of that ground. In the present case the supporting affidavit identifies as a ground for setting aside the statutory demand that the creditor failed to allow for payments already made. It would be open to the defendant to adduce evidence as to what those payments were. On this ground alone this is not a proper ground for seeking summary judgment. 46The defendant submitted that the supporting affidavit failed to specify the material facts on which this ground of dispute was based ( Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund at 459). However, there is a real question whether to be capable of being characterised as a " supporting affidavit " within the meaning of s 459G(3)(b), the affidavit must not only raise the grounds of dispute, but also the material facts on which those grounds are based. In Financial Solutions Australasia Pty Ltd v Predella Pty Ltd [2002] WASCA 51; (2002) 26 WAR 306, the Full Court of the Supreme Court of Western Australia did not endorse the submission that to be a supporting affidavit the affidavit must necessarily depose to the material facts on which the ground of dispute was based. As Parker J (with whom Anderson and Scott JJ agreed) said (at [34]): " The statutory yardstick remains that the affidavit should support the application. The precise nature of the application may well influence what this requires. " 47In the present case the statutory demand does not specify the period or periods for which it is claimed the defendant did not pay wages due to him. Therefore, it would have been impossible for the plaintiff to set out in the supporting affidavit what payments were relied on as a ground of dispute, whilst being sure that that answer was responsive to the claim for an unpaid debt. 48In my view, the supporting affidavit raises at least one ground of dispute that might or might not be made good by further evidence. 49The plaintiff also submitted that it would be open to the plaintiff to seek to have the statutory demand set aside on the basis that the debt had not been sufficiently particularised in the statutory demand and the affidavit that accompanied the statutory demand. In Condor Asset Management Limited v Excelsior Eastern Limited [2005] NSWSC 1139 Barrett J said (at [27]-[28]): " [27] In the last three situations, the plaintiff would be unable to come to grips with the intended meaning of the statutory demand in the way the legislation intends. The ability of a company served with a statutory demand to understand with clarity the requirement the demanding party seeks to impose is crucial to the working of the statutory provisions. One need not go beyond s 459H(1)(a), the provision which is the most fertile source of challenges to statutory demands. That section enables the company concerned to mount a challenge on the basis of a genuine dispute about 'the existence or amount of a debt to which the demand relates'. The reference here is to 'a debt' in the singular. It follows that, where the demand is of the kind allowed by s 459E(1)(b) and relates to '2 or more debts', a s 459H(1)(a) challenge may be pursued on the basis of a dispute with respect of any one of the several debts dealt with in the demand. Indeed, it may be pursued on the basis of a dispute as to all or any of the several debts. [28] Fundamental, in these circumstances, is the proposition that the company on which the demand is served must be able to identify with precision the debt - or each and every one of the several debts - upon which a statutory demand is based. Failure to provide the means of such identification means that the company is denied the ability even to begin to consider whether s 459H(1)(a) provides a ground for challenge. A company in that position suffers severe prejudice; and that prejudice must, of its nature, mean that there will be, in terms of s 459J(1)(a), 'substantial injustice' unless the demand is set aside. " 50The plaintiff contends that the statutory demand does not identify with precision the debt or debts claimed to be due. 51It is undesirable that I express any conclusion as to whether this ground of challenge is raised by the supporting affidavit. That would be a live question at a final hearing. As the matter is not an appropriate matter for summary judgment in any event (because it would be open to the defendant to adduce evidence as to payments made to reduce or extinguish the claimed debt), it is preferable that I express no view on this question. 52The defendant also submitted that the plaintiff's claim must fail because the statutory demand was not annexed to the supporting affidavit. It is undoubtedly good practice to annex the statutory demand to the supporting affidavit. But it is not necessarily an essential prerequisite. I repeat what I said in Tatlers.com.au Pty Ltd v Davis [2007] NSWSC 835; (2007) 213 FLR 109; (2007) 25 ACLC 1150 at [31]-[32]: " [31] There is no principle that it is essential that the supporting affidavit include the statutory demand sought to be set aside. In Expressway Spares Pty Ltd v CTK Engineering Pty Ltd [2005] NSWSC 1200, Austin J observed (at [3]) that: 'If there were no proof of the statutory demand, the plaintiff would be bound to fail, as the Court cannot set aside something which has not been proven to exist.' [32] In that case, it appears that the statutory demand was not even tendered. However, because there was sufficient evidence from which to infer both the existence and the content of the demand, and because there was a genuine dispute, the demand was set aside. In the present case, the plaintiff belatedly tendered the statutory demand. The demand was clearly relevant. I allowed the tender. ... " 53For these reasons I order that the defendant's interlocutory process filed on 30 May 2011 be dismissed with costs. I repeat my dismay that the defendant should have sought summary dismissal of the application to set aside a statutory demand. Applications under s 459G by their very nature are summary applications. To seek summary dismissal of such an application is likely merely to create delay and additional cost. That is what has happened in this case. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2011