Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd

The appeal concerned a dispute between Britten-Norman Pty Ltd and Analysis & Technology Australia Pty Ltd regarding a statutory demand. Britten-Norman Pty Ltd sought to set aside the statutory demand issued by Analysis & Technology Australia Pty Ltd. The primary court had made orders on 19 April 2013, which Britten-Norman Pty Ltd sought to have set aside.

The legal issues before the court were whether the evidence filed in support of Britten-Norman Pty Ltd's application to set aside the statutory demand was sufficient to establish the existence of an offsetting claim, and if so, whether the quantum of that offsetting claim was sufficiently established. The court was required to consider the evidentiary threshold for setting aside a statutory demand, particularly in relation to offsetting claims, and the application of the rules of evidence in such proceedings.

The court reasoned that for an application to set aside a statutory demand under section 459G of the Corporations Act 2001, supported by an affidavit under section 459H, the evidence must satisfy the court that there is a "serious question to be tried," an "issue deserving of a hearing," or a "plausible contention requiring investigation" of either a dispute as to the debt or an offsetting claim. The court noted that the evidence need not conclusively prove the claim, nor be incontrovertible, given the time constraints for filing the affidavit. The hearsay rule applies with less strictness in interlocutory proceedings, allowing for hearsay evidence provided its source is adduced. The central issue is not whether the debt is owed, but whether there is a genuine dispute or an offsetting claim.

The appeal was allowed, and the orders made by Black J on 19 April 2013 were set aside. The statutory demand dated 26 November 2012 issued by Analysis & Technology Australia Pty Limited against Britten-Norman Pty Limited was set aside. Analysis & Technology Australia Pty Limited was ordered to pay Britten-Norman Pty Limited's costs at first instance and on appeal, and was granted a certificate under the Suitors' Fund Act 1951 if entitled.