[63] However, once the statutory demand is for a sum different from the sum in the judgment, the rationale for the exemption from the verification no longer applies because extraneous events or circumstances have intervened. There is then a need to identify the amount claimed by reference to the extraneous intervening events and circumstances. Further, these intervening events and circumstances are capable of giving rise to disputes as to the amount of an outstanding debt and, also, as to the continued existence of the debt. Thus, it is possible, depending on the nature of any agreement that the debtor and creditor may have reached in relation to the compromise or further payment of the judgment debt, that liability in respect of the judgment debt may have been discharged, to be replaced by a different contractual obligation (see McDermott v Black (1940) 63 CLR 161 at 183-185). In these circumstances, the same considerations which underlie the introduction of the legislative requirement for verification of statutory demands for amounts that were never the subject of a judgment, apply equally to demands for amounts different from the sum in respect of which a judgment was given. It follows, in my view, that a narrow construction should be given to the words "judgment debt" in s 459E(3) of the Act so that the exemption is confined to demands for the very amount in respect of which judgment was obtained, and not for any different amount.
24 It is plain from the affidavits that have been served in these proceedings that since the judgment of about $3,800,000 has been received from the sale of the three properties. These funds have been applied to both outstanding facilities and some funds have been applied to payment of legal costs and receiver's remuneration.
25 It is said that these matters constitute "extraneous events and circumstances which have intervened" between judgment and demand.
26 It also seems clear that the since the sales the Bank has not informed this guarantor of the fact of the sales, the amount of the sales and its appropriation of amounts to the various loan facilities.
27 This particular guarantor did not own any of the properties and did not have the facilities.
28 In Jargon Pty Limited v Good Earth Garden Products Pty Limited [2006] WASC 282 Newnes M was faced with a similar problem. After referring to the passage I have quoted above of Siopis J he said:
"39. It is the case, as submitted by counsel for Good Earth, that the facts of the present case are quite different. Counsel argued that that case is distinguishable in that in the present case there were no ' intervening events and circumstances [which] are capable of giving rise to disputes as to the amount of an outstanding debt and, also, as to the continued existence of the debt.' Counsel for Jargon, on the other hand, contended that the decision was authority for the proposition that, whenever the amount demanded was not the very amount for which judgement was obtained, the statutory demand had to be accompanied by a verifying affidavit.
40. I do not consider that in Anderson Formrite Pty Limited v CASC hire Pty limited (supra), Siopis J intended to suggest that in any circumstances where the judgement demanded was different to the amount of the judgements on the statutory demand had to be accompanied by an affidavit. Rather, I understand his Honour to be referring to circumstances where the amount is different and, as in that case, there are intervening events and circumstances that are capable of giving rise to disputes as to the amount of the outstanding debt or as to the continued existence of the debt.