Farewell to the 'Graywinter principle' in applications to set aside statutory demands

November 16, 2021 by JW in Commercial Court, Commercial Division, Corporations Act, Debt recovery, Genuine dispute, Payment Claims, Section 459G, Supreme Court of Victoria

What must an affividat in support of an application to set aside a statutory demand include? The Victorian Court of Appeal in Sceam Constructions Pty Ltd v Clyne [2021] VSCA 270 has recently clarified the language around the ‘supporting affidavit’ to be filed within 21 days, and provided helpful reminders of what they should contain.

Applications to set aside a statutory demand: can supplementary materials be filed after the 21-day affidavit?

July 05, 2018 by JW in Corporations Act, Commercial Court, Section 459G, Statutory Demands, Application to set aside, Genuine dispute, Some other reason

In short, the answer is no. Section 459G of the Corporations Act requires an application to set aside a statutory demand to be supported by an affidavit within 21 days of service of the demand. Usually the facts for the setting aside application are known within the 21-day period.

What should you do when there are unknown facts at the time of filing the application to set aside? For example, where there are inaccessible or unverifiable documents, or you are waiting on third parties to provide materials (eg accounting information), or further discovery is required?