Benonyx Pty Ltd v Fetrona Pty Ltd

Benonyx Pty Ltd brought a statutory demand against Fetrona Pty Ltd for an alleged debt. In response, Fetrona applied to set aside the statutory demand under section 459G of the Corporations Act. The dispute centered on the strict compliance requirements for such an application, including the service of the application to set aside on the claimant creditor within twenty-one days. The court was required to determine whether the applicant's non-compliance with certain procedural requirements rendered the application defective.

The court held that while the applicant served a copy of the application to set aside before it was filed, it omitted the return date. The court found that the omission of the return date was a fatal non-compliance that could not be remedied. However, the court also noted that the service of the application before it was filed may not necessarily be fatal to the application. The court considered the purpose of the requirement for strict compliance, which was to ensure that the creditor is given proper notice of the application and an opportunity to respond.

The court concluded that the applicant's failure to include the return date in the service of the application was a fundamental error that could not be cured. Therefore, the application to set aside the statutory demand was invalid. The court did not need to consider the effect of the former omission as the latter omission was fatal. The court dismissed the application to set aside the statutory demand.