Anderson Formrite Pty Ltd v Rapid Metal Developments (Australia) Pty Ltd

Anderson Formrite Pty Ltd (the Plaintiff) brought an application to set aside a statutory demand served on it by Rapid Metal Developments (Australia) Pty Ltd (the Defendant). The demand was for an amount of $2,695,381.89. The Plaintiff had entered into a subcontract with Baulderstone Hornibrook for formwork on the Woodside building in Perth. The Plaintiff then entered into negotiations with the Defendant for the supply of equipment for the formwork. The Defendant served the statutory demand on the Plaintiff claiming that the Plaintiff had not made payment of amounts due under the contract between them. The Plaintiff filed an application to set aside the statutory demand on 26 April 2002 and served a supporting affidavit on the Defendant on the same day. The Plaintiff filed further affidavits on 6 May 2002 and 7 June 2002. The Defendant submitted that much of the affidavit material filed after the two initial affidavits sworn by Passione and Bell, and filed with the application, went beyond matters raised in the two earlier affidavits and therefore could not be relied upon in the context of the application. The court found that the affidavit material filed subsequent to the supporting affidavit was admissible. The Defendant submitted that the Plaintiff's claims should be seen as matters of recent invention and that the Plaintiff's witnesses should not be seen as credible and any dispute could not properly be viewed as genuine. The court found that there was a genuine dispute as to the indebtedness of the Plaintiff to the Defendant and the statutory demand should be set aside.