ACN 114 733 569 Limited v Income2Wealth Pty Ltd

The case of ACN 114 733 569 Limited v Income2Wealth Pty Ltd concerns a dispute regarding the validity of a statutory demand and the accompanying affidavit. The applicant, who is the responsible entity of several managed investment schemes, brought an application to set aside a statutory demand issued by the respondent. The respondent, an authorised representative of the applicant, alleged that the applicant owed more than $1 million in fees for services rendered. The applicant disputed the claim and raised concerns about the dates on the statutory demand and the affidavit, which appeared to pre-date the demand.

The court was required to determine whether the statutory demand should be set aside because it contained a defect. The statutory demand must comply with the prescribed form under section 459E(2) of the Corporations Act, which includes an affidavit verifying the amount of the debt. The court needed to consider whether the demand could be set aside based on the defect in the affidavit, despite the respondent's assertion that there was no defect.

The court concluded that the statutory demand should be set aside because of the defect in the affidavit. The defect was apparent on the face of the documents sent to the applicant, and the applicant had no way of knowing that the dates were incorrect. The respondent's assertion that there was no defect was made before the applicant had the opportunity to challenge the validity of the demand. The respondent only revealed the true nature of the defect after the applicant had brought the issue to its attention and the 21-day period for setting aside the demand had lapsed. The court held that the statutory demand should be set aside, and the respondent was ordered to pay the applicant's costs of the application, unless a party wishes to submit otherwise within 7 days.