Adcon Logistics Pty Ltd v Joannou Enterprises Pty Ltd

[2023] QSC 265

SUPREME COURT OF QUEENSLAND

CITATION:

Adcon Logistics Pty Ltd v Joannou Enterprises Pty Ltd  [2023] QSC 265

PARTIES:

ADCON LOGISTICS PTY LTD

(applicant)

v
JOANNOU ENTERPRISES PTY LTD

(respondent)

FILE NO/S:

9344 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2023

JUDGE:

Sullivan J

ORDER:

The statutory demand is to be set aside pursuant to
s 459H of the Corporations Act.

CATCHWORDS:

CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATURORY DEMAND – APPLICATION TO SET ASIDE DEMAND – PROCEDURAL REQUIREMENTS – SERVICE OF APPLICATION – where the applicant seeks to set aside a statutory demand issued by the respondent – whether the application and its affidavit were served on the respondent within the statutory period after the statutory demand was served on the applicant – where the applicant contends that the application and affidavit were served on the respondent within the statutory period – where the respondent contends that the application is invalid

Acts Interpretation Act 1901 (Cth), s 29
Corporations Act 2001 (Cth), s 109X, s 459G, s 459H

Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd (2005) 188 FLR 373, cited
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259, considered
Jacobs v London County Council [1950] AC 361, cited
Polstar Pty Ltd v Agnew [2007] NSWSC 114, cited
Scope Data Systems Pty Ltd v Goman (as Representative of the Partnership of BDO Nelson Parkhill) [2007] NSWSC 278, considered

COUNSEL:

N M Cooke for the applicant
H G Trotter for the respondent

SOLICITORS:

Irish Bentley Lawyers for the applicant
Barringer Leather Lawyers for the respondent

Introduction

1. The applicant seeks to set aside a statutory demand dated 27 June 2023 issued by the respondent.  Both parties accept that if this application and its supporting affidavit were served within the relevant 21 day time limit, then the application should succeed as it is conceded that there is a genuine dispute in respect of the entirety of the debt, the subject of the demand.

2. Section 459G of the Corporations Act 2001 (Cth) (“Corporations Act”) relevantly provides:

   “…

   (2)  An application may only be made within the statutory period after the demand is so served.

   (3) An application is made in accordance with this section only if, within that period:

   (a)  an affidavit supporting the application is filed with the Court; and

   (b)  a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.”

3. The statutory period is 21 days.

4. It is trite law that there is no ability to extend the time limit contained in s 459G of the Corporations Act.

5. Accordingly, the real issue in this application is whether the application and its affidavit were served on the respondent within 21 days after the statutory demand was served on the applicant.

6. There is no dispute between the parties that the application to set aside the statutory demand and its accompanying affidavit were served on 27 July 2023.

7. The applicant contends that it was first served with the statutory demand on 6 July 2023.  If that contention were correct, then the application and its affidavit would have been served within 21 days of that date.

8. The respondent contends that the applicant was served with the statutory demand on a date prior to 6 July 2023.  If that contention were correct, then the application is invalid and will need to be dismissed. 

9. For the purposes of the respondent’s contention that the application and affidavit were served out of time, the respondent relies upon s 109X of the Corporations Act, which provides, inter alia:

   “(1)For the purposes of any law, a document may be served on a company by:

   (a)leaving it at, or posting it to, the company’s registered office…”

10. Section 29 of the Acts Interpretation Act 1901 (Cth) (“Acts Interpretation Act”) is also clearly relevant to the decision of the real issue. Section 29(1) of the Acts Interpretation Act provides as follows:

    “29  Meaning of service by post

    (1)  Where an Act authorises or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

    …”

11. It is this section which critically provides the prima facie deemed service.  The section operates to reverse the evidentiary onus, so that the applicant then has to prove that the document was not actually delivered by post on the critical date.

12. It is uncontentious that the respondent has established on the evidence that the statutory demand was:

    (a)    properly addressed to the registered office of the applicant;

    (b)    put into a prepaid envelope; and

    (c)    posted as a letter.

13. By reason of this evidence, s 29 of the Acts Interpretation Act is clearly engaged by the respondent.

14. Further, it is uncontentious between the parties that the statutory demand was delivered on 3 July 2023 by Australia Post - not to the applicant’s registered office, but rather to a post office box registered in the name of Descon Group Pty Ltd, which was a related company of the applicant.  This is the post office box which the applicant’s affidavit material refers to as being “owned” by the company related to the applicant.

15. Despite the delivery of the statutory demand to the post office box , as opposed to the registered office of the applicant, the respondent contends that this delivery constituted service on the applicant either on 3 July 2023, or alternatively on 4 July 2023 or 5 July 2023.  Whilst not entirely clear, the later two dates are presumably based on an assumption that the statutory demand may have been collected from the post office box by someone on behalf of the applicant on those dates, who then physically took it to the registered office.

16. The applicant, on the other hand, contends that the service of the statutory demand did not occur until 6 July 2023.  This was the date upon which it says a staff member of the applicant, a Mr Micale, picked up the envelope containing the statutory demand from the post office box and then physically took it to the registered office of the applicant.

    Evidence

17. The important evidence in this case for the purpose of deciding the real issue is that of Mr Micale.  He provided three affidavits and, with leave, was cross-examined at the hearing in relation to their contents and other identified issues.

18. I accept the following uncontroversial evidence of Mr Micale:

    (a)the post office box in question, to which the postal item containing the statutory demand was delivered, was “owned” not by the applicant, but by its related company which shared the same sole director;

    (b)the applicant and a number of other related companies had, well before July 2023, put in place redirections with Australia Post for their mail which was addressed to specific Melbourne and Sydney addresses which they had formerly operated out of, so that those particular mail items addressed to the Melbourne or Sydney offices were redirected to the Brisbane post office box “owned” by the applicant’s related company; and

    (c)neither the applicant, nor anyone else to Mr Micale’s knowledge, had ever requested or put in place with Australia Post a redirection of the applicant’s mail which was addressed to its registered office in Brisbane, to the post office box “owned” by its related company.

19. I also accept Mr Micale’s evidence that, with one exception, he was the only person who oversaw mail processes for the applicant and certain other related companies, including arranging mail routes/redirections and post office boxes.  The one exception was that Mr Micale did delegate, from time to time, the ad hoc task of mail collection from the post office box “owned” by the related company of the applicant.

20. Next, I turn to the evidence which was controversial between the parties.

21. The first evidential issue relevant to the real issue in this case concerned the delivery of the applicant’s mail to the registered office and to the post office box of the related company in the period leading up to and including 6 July 2023.

22. At paragraph 7 of his second affidavit, Mr Micale deposed that “at its current registered office (Level 19, 239 George Street, Brisbane City, 4000), the Applicant has received mail by delivery to the concierge desk at the lobby of the building, and otherwise by delivery directly to the premises.” I note that paragraph 7 makes no mention of the applicant ever having received mail addressed to its registered office, at the post office box of the related company.  Nowhere else in the applicant’s affidavits is such evidence given.  This did give the impression that Mr Micale was saying, in effect, all such mail addressed to the registered office was usually received this way.

23. Under cross-examination, Mr Micale gave answers to the effect that for roughly the 12 months before July 2023, a significant portion of the correspondence addressed to the applicant’s registered office was appearing in the post office box of the related company.

24. Mr Micale gave evidence under cross-examination to the effect that,[1] “[m]ail arrived at our offices” and “some mail landed in the post office.  As time went on, more and more of that occurred.”  He gave further evidence under cross-examination to the effect that by July 2023, “it wasn’t at a point where it was all going to the post office box.” 

    [1]T 1-31 ll 17-18.

25. Mr Micale gave evidence that some letters addressed to the registered office had the post office box number simply written on it.  His evidence was that after the redirection from the Sydney office, he would find more and more letters where somebody had written the post office box number across the correspondence.  He gave evidence that prior to early July 2023 they were starting to receive significantly less mail to the office and it was simply arriving at the post office.  He gave evidence to the effect that he did not know why that was occurring at the time, he had no reason to go and check it at the time, and he did not have a reason to dispute it at the time.  He said it wasn’t a question for him, so long as they were getting their mail. 

26. He was asked in cross-examination to quantify what “significantly less” meant in terms of a percentage.  Mr Micale’s response was, in effect, that he was unable to give a percentage, but there were deliveries of mail still coming to the registered office, whilst there were some items of mail going to the post office box.  He said that some weeks it was a lot, some weeks it was not a lot.

27. After the dispute had arisen as to the service of the statutory demand, Mr Micale contacted Australia Post in August 2023 to seek an answer as to why mail addressed to the applicant at its registered office was being received at the post office box of the related company.  This inquiry was the subject of a recorded telephone conversation with an Australia Post worker.  That recording was tendered as Exhibit 7 and then played during the cross-examination. 

28. On the recording, Mr Micale can be heard inquiring why a postal item addressed to the registered office of the applicant was delivered to the post office box of the related company.  In doing so, he identified that at no time had the applicant sought to redirect its mail addressed to its registered office, to the post office box.  The Australia Post worker confirmed that no such redirection was evident on the records of Australia Post. 

29. In those discussions, Mr Micale did have an exchange to the effect that someone was saying that (meaning the demand) was delivered to our office and that they (presumably meaning the applicant by Mr Micale) then said, “Well, no, it wasn’t delivered to our office, because no mail is ever delivered to our office because we simply don’t get mail here.”  Mr Micale was then asked whether he was being dishonest with Australia Post when he said the words in parenthesis set out immediately above.  Mr Micale’s answer was, “I was trying to find out why it was occurring.  I didn’t want any - I needed something more than an ambiguous answer from Australia Post, which they often try and - not to comment.  I needed to know what was happening and why.”[2]  He was then taken back to the words in parenthesis above and asked, “Right.  So that wasn’t a lie; that was you just trying to emphasise your point?”  Mr Micale’s answer was, “Correct.” 

    [2]T 1-35 ll 2-5.

30. He was then asked, “Right.  But the truth of the situation is that some unquantifiable significant amount of mail goes to Australia Post?”  And the answer was, “Correct.”

31. Mr Micale was then pressed again for a quantification of how often mail for the applicant was received to the post office box as opposed to the registered office.  Mr Micale said that in relation to post for the applicant that he was unable to answer the question, but if he was being asked to guess, then he would say that the applicant had received more mail at the registered office than in the post office box. 

32. Mr Micale was asked again whether he was lying to the Australia Post worker in the conversation when he said that all of the mail goes to the post office box.  Mr Micale’s answer was that he was emphasising a point.  The next question was that there was a difference between emphasising a point and lying, and Mr Micale said, “Okay.  Then I was lying to…”  The answer was then interrupted by counsel for the applicant with an objection.

33. Counsel for the respondent put it to Mr Micale that all of the mail for the applicant did actually turn up in the post office box as had been, in effect, stated to the Australia Post worker.  Mr Micale rejected this and stated, “No, that’s not correct.”

34. Whilst there are some unsatisfactory aspects of Mr Micale’s initial affidavits in terms of making no reference to some of the mail addressed to the applicant’s registered office being received at the post office box, I nonetheless accept the general effect of Mr Micale’s evidence that in the 12 months prior to early July 2023, some of the mail addressed to the applicant at its registered office was being delivered to the registered office by Australia Post, whilst other mail equally addressed to the applicant at its registered office was being delivered to the post office box “owned” by the applicant’s related company. I also accept that some of the mail for the applicant addressed to its registered office, but which was delivered to the post office box, had written across the front of the envelopes the relevant post office box number of the post office box “owned” by the related company.  Where that occurred, I find it more likely than not that this writing of the post office box number was being done by one or more Australia Post workers.  The evidence supports that the writing of the post office box number was not from the original sender but had been added by somebody prior to the receipt of the letter in the post office box. 

35. I find that the applicant was in no way involved in the writing of the post office box number on the front of those envelopes.  The logical conclusion is that one or more postal workers at the postal receipt location in the Brisbane CBD were likely linking the applicant to the post office box.  This could have been because the worker(s):

    (a)saw that the applicant’s Sydney and Melbourne mail was being redirected to the post office box; or

    (b)saw that other mail items with that address for other related companies were also going to the post office box number due to the post office box number being present with the address. 

36. Mr Micale’s oral evidence on these matters seems to be logical and likely.  If the mail was addressed to the registered office of the applicant, then it seems likely that at least some of it would be delivered to that address in accordance with what Australia Post would ordinarily do.  The delivery to the post office box of mail bearing only the registered office address was erroneous by Australia Post, but is explicable as some of its employees were likely informally and unilaterally redirecting items due to the factors I have described above.  What Mr Micale observed over the 12 month period was, on the balance of probabilities, the result of erroneous and unilateral actions of one or more Australia Post workers.  I find that he had no knowledge as to why this was occurring prior to his telephone call to Australia Post in August 2023.

37. I accept Mr Micale’s evidence that when he told Australia Post in effect that no mail went to the office, and by necessary implication, that it all went to the post office box, he was just doing this for emphasis.  His explanation in this respect is plausible.  It is entirely plausible that persons may exaggerate their predicament when dealing with entities such as Australia Post in order to attempt to get action out of such large corporations.  I accept that this is what Mr Micale was doing on this occasion.

38. The second evidential issue relevant to the real issue in this case concerns when the letter was picked up from the post office box and by whom.  Mr Micale gave evidence that he picked up the piece of mail with the statutory demand for the first time from the post office box on 6 July 2023.  He also deposed to his usual practice that when express postal items were received, he would take the tracking number sticker from the relevant envelope and affix it to the back of the first page of the correspondence and write the following on the back of that page:

    (a)the date that the online Australia Post tracking code search stated it was delivered; and

    (b)the date on which he had collected the mail.

39. He exhibited to his third affidavit the first page of the relevant correspondence enclosing the statutory demand which he had collected, including the back of that first page of correspondence with the relevant sticker.  On that back page he had written, “3/7/23” and then “COL 6/7/23”.  In accordance with his usual practice, that indicated that Mr Micale had searched the Australia Post tracking code online and observed that it recorded the item as having been delivered on 3 July 2023 to the post office box, and he had also written 6 July 2023 as the date on which he collected it from the post office box.

40. Under cross-examination, Mr Micale was asked who had collected the mail on 3, 4, and 5 July 2023 from the post office box.  His answer was, “No one.”  He identified that the policy of collecting mail every day from the post office box was introduced around the beginning of September 2023, specifically as a result of this matter.  That is, this policy was put in place because of the dispute relating to the service of this statutory demand.

41. I accept the evidence of Mr Micale:

    (a)that nobody had collected the mail from the post office box on 3, 4 or 5 July 2023; and

    (b)that he had personally collected the mail from the post office box on 6 July 2023.

42. In accepting this evidence, I also accept the evidence of Mr Micale’s usual practice. Mr Micale was in charge of postal receipts for a group of companies which included the applicant. He produced the relevant correspondence which accompanied the statutory demand which had the express post sticker attached to the back of the first page of the correspondence with the relevant information, which he swore he had personally hand-written on 6 July 2023 in accordance with this usual practice.  This correspondence provided contemporaneous documentary evidence which corroborated Mr Micale’s evidence.

    Legal Principles

1. By reason of s 109X of the Corporations Act and s 29 of the Acts Interpretation Act, the respondent had the benefit of the prima facie deemed service by post.  Of course, that still required evidence from the respondent as to when in the ordinary course of post the letter would have been delivered to the registered office.  The respondent did not actually lead direct evidence of this, nor did the respondent rely on a statutory provision in order to fill this evidentiary gap.  The effect of those omissions do not need to be further considered in light of my later conclusions.

2. The prima facie position on service by post in favour of the respondent can be rebutted by evidence to the contrary that there was non-delivery of the statutory demand by post to the registered office on the date asserted. 

3. The issue here is whether the applicant can use the receipt to the post office box as evidence of non-delivery to the registered office. 

4. There is an intermediate appellate authority from New South Wales, being Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259, to the effect that if a recipient company positively redirects the mail otherwise addressed to its registered office to a post office box, then that company cannot be heard to say that the mail was not delivered to the registered office. The effect of that decision was helpfully summarised by White J in Scope Data Systems Pty Ltd v Goman (as Representative of the Partnership of BDO Nelson Parkhill) [2007] NSWSC 278 as follows:[3]

   [3]Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 at [91]-[96].

   Can the Presumption of Delivery in the Ordinary Course of Post be Rebutted?

   [91]In Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259, the majority of the Court of Appeal held (at [1], [67]) that whilst a company served under s 109X of the Corporations Act is entitled to prove that the document arrived at its registered office at a different time from that if it had been delivered in the ordinary course of post, it does not do so:

   “ … by proving that [the document] arrived at the address to which it had diverted its mail at a different time from that on which the document would have been delivered to its registered office in the ordinary course of post. ” (Emphasis added).

   [92] It is unfortunate that their Honours were apparently not referred to, and did not refer to, the relevant authorities, including that of the present Chief Judge in Equity, which are inconsistent with this conclusion. However, that is beside the point.

   [93] This passage forms part of the ratio decidendi of the Court’s decision and is binding on me. The Court of Appeal held that the payment schedule in that case was “provided” to the claimant within time because it had been served within time, and service constituted “provision”. One of the ways in which it was held that the schedule had been served was by being posted to the claimant’s registered office. The view of Handley JA and Hunt AJA that it was not open to the claimant to dispute that the schedule had been delivered in the ordinary course of post because it had diverted its mail to a post office box, was a necessary part of their Honours’ reasoning that the claimant had been served in time by the schedule having been posted to it at its registered office. It is irrelevant that this was not an issue the Court needed to decide because the claimant had been unquestionably served in other ways. The point was decided (Jacobs v London County Council [1950] AC 361 at 369).

   [94] Because Handley JA and Hunt AJA gave no reasons for the conclusion in the last sentence of paragraph [67] in Falgat Constructions, it should not be construed more widely than the terms in which it is expressed. That is to say, their Honours’ conclusion applies to a case where it is the company being served which diverted its mail. I do not consider that their Honours’ conclusion applies where it is not the company which diverts mail addressed to its registered office, but the firm occupying that office which does so.

   [95] It may be that their Honours had in mind that a company which diverts its mail would be estopped from relying on the exception to s 29(1) of the Acts Interpretation Act permitting proof to the contrary. If that is the underlying reasoning, it may have no application where the company had no part to play in the decision to divert mail addressed to the registered office to a post office box. Nor do abstract notions of fairness suggest that a company, which was not a party to such a decision, should be prevented from saying that a document was not delivered to its registered office when in fact it was not. A person who relies on the post as a means of service takes the risk that the document will not be delivered in the ordinary course of post, or that delivery in the ordinary course of post will take longer if the mail goes through a post office box than if it is delivered directly to the street address.

   [96] There was no evidence that the plaintiff was a party to the arrangements made by Tattam & Co with Australia Post to divert mail addressed to its office to the post office box. The plaintiff is entitled to prove that the statutory demand was not served by being delivered by Australia Post to its registered office in the ordinary course of post. It is entitled to prove when the demand was delivered to its registered office. This is consistent with the decision of the Full Court of the Supreme Court of South Australia in Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd (2005) 188 FLR 373.

5. The decision of Falgat concerned a situation where there had been a positive redirection of mail by the recipient company from its registered office to a post office box.  The decision of Scope Data Systems involved a situation where there had been a redirection of the mail from the registered office not by the recipient company, but rather, unilaterally by the accountants who occupied the address which was the registered office address.  His Honour Justice White concluded that the conduct of the accountants in redirecting all mail from that address, to the accountant’s post office box, could not be attributed to the recipient company.

6. After a careful and detailed analysis of authorities, White J, correctly in my view, reached the conclusion that delivery to a post office box does not equate to delivery to a company’s registered office.  In this respect, his Honour stated, inter alia, as follows:[4]

   “[85]In Polstar Pty Ltd v Agnew [2007] NSWSC 114, the envelope enclosing the statutory demand was addressed to the company at a post office box. Barrett J held that s 109X of the Corporations Act did not impliedly exclude the operation of s 28A of the Acts Interpretation Act (at [15]). The latter provision permits service of a document on a body corporate by sending it by prepaid post to the head office, a registered office, or a principal place of office of the body corporate. However, his Honour held that in both the Corporations Act and the Acts Interpretation Act, an “office” connotes a physical location in the nature of premises, such as a building or part of a building (at [18]). His Honour concluded that a post office box could not be a company’s “office” (at [19]). I agree.

   [86]In my view, delivery to the post office box cannot be equated with delivery to the company’s registered office.  I respectfully differ from the contrary view expressed by Hodgson JA in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd at [56]). I respectfully consider that his Honour’s view is inconsistent with the authorities. It does not appear that the Court of Appeal was referred to the relevant authorities.”

   [4]Scope Data Systems Pty Ltd v Goman (as Representative of the Partnership of BDO Nelson Parkhill) [2007] NSWSC 278 at [85]-[86].

7. I note that the part of the reasons of Hodgson JA in Falgat which White J disagreed with had also been expressly disagreed with by the other two members of the appellate bench in Falgat.

   Application of the law to the facts

8. In this case, there was no redirection by the applicant of the mail addressed to the applicant’s registered office, to the post office box “owned” by the related company.

9. At most, in the 12 months prior to July 2023, the applicant’s staff member in charge of mail was aware that some of its mail addressed to the registered office by the sender was being received at the post office box “owned” by the related company.  Equally, in the same period, the same staff member was aware that some of its mail addressed to its registered office was being received at the registered office.  That staff member did not know why this was happening during this period.

10. I have found that on the balance of probabilities this was occurring during this period as a result of erroneous and unilateral actions of Australia Post worker(s) who were informally redirecting part of the relevant mail to the post office box.  The applicant had done nothing to cause the erroneous and unilateral redirection of some of its mail addressed to its registered office, to the post office box.

11. This is not a situation similar to that which existed in the Falgat decision.  It is analogous to the situation which existed in the Scope Data Systems decision.  As White J observed in Scope Data Systems, if a party seeks to use the post as its means of service, it does so with the relevant risks attached.  One of those risks is that the applicant may be able to prove that the item was not delivered to it until a later date.

12. In this case, there is actual proof of the delivery of the statutory demand by post to the post office box on 3 July 2023.  Following the reasoning set out in the decision in Scope Data Systems, the post office box was not itself the registered office of the applicant.  This was not a case where the applicant had done something positive, such as redirecting its mail from its registered office to that post office box, which would have estopped it from denying that the letter had in fact been received at the registered office in the ordinary course of the post.  Nor is this a case where there was a fully informed acquiescence to a known universal and informal redirection of all mail addressed to the applicant at its registered office, to the post office box, which may have raised the possibility of an argument for an extension of the proposition which was identified in the decision of Falgat.

13. Further, I reject that Mr Micale’s willingness during the August 2023 telephone call to accept the continuation of what was happening with the post office box supports some type of an acquiescence case in respect of the service of the statutory demand.  Any decision which Mr Micale made once he had discussed what was happening with the Australia Post worker in August 2023 is irrelevant to what the position was on and before 6 July 2023.  This case is not about the receipt of a document after the August 2023 telephone call. Further, subsequent steps were put in place in September 2023 for the post office box mail to be collected daily, in any event.    

14. In the present circumstances, applying the law to the facts, I conclude that there was not service of the statutory demand on the applicant when the demand was delivered to the post office box “owned” by the related company on 3 July 2023.  Equally, given my finding that the statutory demand was only collected from the post office box on 6 July 2023 by Mr Micale and then physically taken to the registered office, I conclude that the relevant statutory demand was only served on the applicant on 6 July 2023.

15. The result of that finding is that the relevant service of the statutory demand on the respondent took place on 6 July 2023.  The application to set aside the statutory demand was then served within 21 days of that date of service.  Consequently, the application is valid.

    Conclusion

16. Given that I have concluded that the application is valid, and where the parties agree that the affidavit material before the Court otherwise supports a genuine dispute as to the existence of the entire debt the subject of the statutory demand, it is appropriate to order that the statutory demand be set aside pursuant to s 459H of the Corporations Act.

17. I will hear the parties on costs.