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?

Statutory demands: Court of Appeal affirms principles for setting aside in recent cases

March 08, 2018 by JW in Statutory Demands, Section 459G

This post considers two recent cases in the Victorian Court of Appeal where applications to set aside statutory demands pursuant to section 459G of the Corporations Act were appealed:

1) Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 5

2) Go Connect Ltd v Sino Strategic International Ltd (in Liq) [2016] VSCA 315

Both cases affirm the principles applicable in applications to set aside a statutory demand.

How to issue a statutory demand

January 17, 2018 by JW in Statutory Demands

A broad overview of how insolvency law may assist in the context of debt recovery with speed and economy for your client using the statutory demand regime.

Can a statutory demand be served on an incorporated association?

November 17, 2017 by JW in Commercial Court, Corporations Act, Statutory Demands, Section 459G, Section 459H

Can a statutory demand pursuant to section 459E of the Corporations Act be served on an incorporated association registered under the Associations Incorporation Reform Act 2012 (Vic)?

Supreme Court checklist for defects in applications to set aside a statutory demand

June 29, 2017 by JW in Statutory Demands

The Supreme Court of Victoria uses a checklist to 'groom' applications to set aside statutory demands for any problems before the first return of the matter for directions. The checklist is attached below.

Setting aside statutory demands: A way around the 21-day requirement for affidavits in support?

June 11, 2017 by JW in Statutory Demands

The Court of Appeal in Imagebuild Group Pty Ltd v Fokust Pty Ltd [2017] VSCA 131 (31 May 2017) has confirmed that affidavits in support of applications to set aside statutory demands cannot merely explain the delay in filing an affidavit in support within 21 days of the statutory demand being served (pursuant to s 459G(2) and (3) of the Corporations Act 2001).

However an affidavit filed and served within 21 days which explains delay and verifies on the basis of instructions or otherwise the contents of a ‘foreshadowed affidavit’ to be sworn, may be sufficient to constitute a supporting affidavit.

Affidavits in support of statutory demands must include a "statement of belief that there is no genuine dispute"

June 22, 2016 by JW in home, Statutory Demands, Corporations Act

Statutory demands issued for a non-judgment debt must be accompanied by an affidavit which states, inter alia, the deponent’s belief that that there is no genuine dispute about the debt.

Claiming interest on a statutory demand

April 27, 2016 by JW in Statutory Demands, Commercial Court

In a recent case before an Associate Justice in the Supreme Court of Victoria (unreported) a creditor who issued a statutory demand pursuant to a judgment debt and claimed additional interest without a verifying affidavit withdrew the demand. The court ordered the creditor to pay the alleged debtor's costs on an indemnity basis.