Complete Windscreen v Nielsen and Moller Windscreens (Applicant) No. SCGRG 95/1242 Judgment No. 5267 Number of Pages 10 Corporations

Complete Windscreen applied to the Supreme Court of South Australia to set aside a statutory demand served by Nielsen and Moller Windscreens. The application was filed and served within 21 days, but the necessary supporting affidavits were not filed or served until after the 21 day period had expired. The respondents sought to have the application dismissed on the ground that the supporting affidavits were not filed and served within 21 days after the demand was served. The primary issue before the court was whether the applicant could rely on s467A of the Corporations Law to cure the defect of not filing and serving the supporting affidavits within time. The court held that the application to set aside the statutory demand was not an application under Part 5.4 of the Corporations Law because it was not made within the time specified in s459G. Therefore, the court could not dismiss the application merely because of a defect or irregularity in connection with the application under s467A. The court held that the requirement in s459G that the application to the court for which it provides be made only within 21 days after service of the demand should not be treated as supplemented or qualified by the operation of s467A. The court dismissed the applicant's application to set aside the statutory demand.

The final orders of the court were that the application be dismissed.