Deliver Western Australia Pty Ltd v Truckworld (WA) Pty Ltd - [2014] WASC 411

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DELIVER WESTERN AUSTRALIA PTY LTD -v- TRUCKWORLD (WA) PTY LTD [2014] WASC 411

CORAM: ACTING MASTER GETHING

HEARD: 31 OCTOBER 2014

DELIVERED : 7 NOVEMBER 2014

FILE NO/S: COR 182 of 2014

BETWEEN: DELIVER WESTERN AUSTRALIA PTY LTD
Plaintiff
AND
TRUCKWORLD (WA) PTY LTD
Respondent

Catchwords:

Corporations Act 2001 (Cth) - Application to set aside a statutory demand - Authorised witness did not print name or identify qualifications as an authorised witness - Whether 'affidavit in support of demand' filed with demand

Legislation:

Corporations Act 2001 (Cth), s 459E, s 459J
Oaths, Affidavits and Statutory Declarations Act 2005 (WA), s 9

Result:

Statutory demand valid, but reduced from $96,609.75 to $76,609.75

Category: B

Representation:

Counsel:

Plaintiff: Mr T Houweling
Respondent: Mr G Metaxas

Solicitors:

Plaintiff: Cornerstone Legal
Respondent: Metaxas & Hager

Case(s) referred to in judgment(s):

2020 Construction Systems Pty Ltd v Dryka & Associates Pty Ltd [2010] WASC 22
Apex Gold Pty Ltd v Atlas Copco Australia Pty Ltd [2011] WASC 49
Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3; (2005) 157 ACTR 22
Carb Royale Pty Ltd v Tonkin [2000] VSC 399; (2000) 35 ACSR 454
Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5
Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91
Durkan v Sandbank Holdings Pty Ltd [2008] WASCA 249
Eumina Investments Pty Ltd v Westpac Banking Corp (1998) 84 FCR 454
Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd (2008) 217 FLR 366
Financial Solutions Australasia Pty Ltd v Predella Pty Ltd [2002] WASCA 51; (2002) 26 WAR 306
Fitness First Australia Pty Ltd v Dubow [2011] NSWSC 531
Frayson Pty Ltd v Stirfry Enterprises Pty Ltd [2008] WASC 301; (2008) 223 FLR 342
GPC (WA) Pty Ltd v Investec Bank (Australia) Ltd [2010] WASC 171
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452
Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446
Kellogg Brown & Root Pty Ltd v Doric Contractors Pty Ltd [2014] WASC 206
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWSC 338
McPherson Project Services Pty Ltd v Nine2Three Employment Solutions Pty Ltd [2008] NSWSC 384
Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24; (2005) 53 ACSR 229
Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290
Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd (1996) 20 ACSR 746
Saferack Pty Ltd v Marketing Heads Australia Pty Ltd (2007) 25 ACLC 1392
Victor Tunevitsch Pty Ltd v Farrow Mortgage Services Pty Ltd (in liq) (1994) 14 ACSR 565

ACTING MASTER GETHING: On 2 September 2014 Truckworld (WA) Pty Ltd served a statutory demand on Deliver Western Australia Pty Ltd ('DWA') in the amount of $96,609.75 ('Demand'). It was accompanied by an affidavit of Tony Ives, a director of Truckworld. The Demand arises out of 17 agreements by which DWA hired vehicles and equipment from Truckworld.
On 22 September 2014, DWA applied to the Supreme Court to set aside the Demand. In support of the application, DWA filed an affidavit of one of its directors, Pasquale Forgione. Mr Forgione identified the grounds for setting aside the Demand. He mistakenly refers to the affidavit in support of the Demand being sworn by Truckworld's solicitor, Timothy Houweling, and not Mr Ives. In argument before me it was accepted that this was an error, and that I should treat the references in the affidavit to Mr Houweling as being to Mr Ives. Mr Forgione states that on 5 September 2014, DWA paid Truckworld $20,000 in reduction of the debt the subject of the Demand. It was accepted by counsel for Truckworld that, if the demand is not otherwise set aside, it should be reduced by this amount.
Mr Forgione then identifies two breaches of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) ('OASDA') in relation to Mr Ives' affidavit:
(a)it does not state that it was witnessed by an authorised witness as required by OASDA s 9(2)(a); and
(b)the person who witnesses the affidavit is not named as required by OASDA s 9(5)(ii).
In submissions before me, counsel for DWA also sought to argue that the affidavit was otherwise not properly sworn in compliance with OASDA s 9. However, as this adds to the grounds set out in the affidavit filed within the 21 day time period set out in the Corporations Act 2001 (Cth) (CA) s 459G(3), this ground may not be raised: Kellogg Brown & Root Pty Ltd v Doric Contractors Pty Ltd [2014] WASC 206 [15] (Acting Master Gething); Apex Gold Pty Ltd v Atlas Copco Australia Pty Ltd [2011] WASC 49 [21] (Pritchard J); Financial Solutions Australasia Pty Ltd v Predella Pty Ltd [2002] WASCA 51; (2002) 26 WAR 306 [17] ‑ [38] (Parker J, Scott and Anderson JJ agreeing); Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452, 459 ‑ 460 (Sundberg J).
The power of a creditor to serve a statutory demand is set out in CA s 459E. The relevant aspect for present purposes is s 459E(3), which prescribes that, where the debt is not a judgment debt, the statutory demand must be accompanied by an affidavit in support:
Unless the debt, or each of the debts, is a judgment debt, the demand must be accompanied by an affidavit that:
(a)verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and
(b)complies with the rules.
An affidavit served with a statutory demand, and sworn in Western Australia, must either comply with the Rules of the Supreme Court 1971 (WA) ('RSC') or the rules of the Federal Court: Supreme Court (Corporations) (WA) Rules 2004 (WA) ('SCCR') r 2.6; Federal Court (Corporations) Rules 2000 (Cth) r 2.6; Frayson Pty Ltd v Stirfry Enterprises Pty Ltd [2008] WASC 301; (2008) 223 FLR 342 [3] ‑ [17]; (Master Sanderson); GPC (WA) Pty Ltd v Investec Bank (Australia) Ltd [2010] WASC 171 [12] ‑ [17] (Acting Master Chapman). The SCCR refers in turn to the requirements of the RSC: r 2.6(a). RSC O 37 r 16 makes it clear that it applies in addition to the requirements of OASDA.
Counsel for Truckworld did not seek to argue that Mr Ives' affidavit was validly sworn in compliance with the rules of the Federal Court. The relevant issue is whether it complies with RSC O 37 and the OASDA.
OASDA s 9 relevantly provides:
(1)Unless another written law provides otherwise, an affidavit for any purpose in this State must be made in accordance with this section.
(2)The affidavit must conclude with a statement that says -
(a)it is sworn or affirmed, as the case requires, by the person making it in the presence of an authorised witness; and
(b)where and when it is sworn or affirmed.
(3)The person who is making the affidavit must -
(a)sign or personally mark the statement required by subsection (2) and each other page of the affidavit;
(b)sign or initial any alteration, such as an insertion or erasure, that has been made to the affidavit; and
(c)in the presence of an authorised witness, say orally on oath or orally affirm -
(i)that he or she is the person named as the maker of the affidavit;
(ii)that the contents of the affidavit are true;
(iii)that the signature or mark is his or hers; and
(iv)if necessary, that any attachment to the affidavit is the attachment referred to in it.
(4)The requirements of subsection (3)(a) and (b) need not be complied with in the presence of an authorised witness.
(5)After the maker has complied with subsection (3)(c), the authorised witness must -
(a)under or near the statement required by subsection (2) -
(i)sign or personally mark the affidavit; and
(ii)imprint or clearly write his or her name and qualification as an authorised witness;
(b)sign or personally mark each other page of the affidavit; and
(c)sign or initial any alteration in the affidavit that has been signed or initialled by the maker.
OASDA s 9(6) ‑ s 9(9) provide for who may be an 'authorised witness'. The relevant category for present purposes is s 9(6)(b), being an 'experienced legal practitioner'. That term is defined in OASDA s 8 to mean 'a person who is, and has been for at least two years, an Australian legal practitioner (within the meaning of that term in the Legal Profession Act 2008 section 3'. It is also subject to s 9(7), which excludes an 'experienced legal practitioner who has participated in any way in preparing the affidavit, or in the proceedings in which the affidavit is intended to be filed'.
At the foot of Mr Ives' affidavit there is a space for the authorised witness to sign, above the words: 'Signature and designation of person before whom deponent swears or affirms affidavit'. The authorised witness has signed the affidavit and then written: 'Barrister, Francis Burt Chambers'.
It is evident that the affidavit does not comply with OASDA s 9 in that:
(a)it does not conclude with a statement that it is sworn by the person making it 'in the presence of an authorised witness' as required by OASDA s 9(2)(a); and
(b)the authorised witness does not imprint or clearly write her name and qualification as an authorised witness as required by s 9(5)(a)(ii).
On 21 October 2014, Truckworld filed an affidavit sworn by Maria Saraceni. Ms Saraceni identifies herself as the authorised witness before whom Mr Ives swore his affidavit. She confirms that she is an experienced legal practitioner, holding a current practice certificate and having held one for more than two years. Nonetheless, Mr Ives' affidavit does not comply with the OASDA.
If the breaches of the OASDA render the Demand defective, then it may be set aside pursuant to CA s 459J, which provides:
(1)On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:
(a)because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or
(b)there is some other reason why the demand should be set aside.
(2)Except as provided in subsection (1), the Court must not set aside a statutory demand merely because of a defect.
The term 'statutory demand' is relevantly defined to mean 'a document that is, or purports to be, a demand served under section 459E': CA s 9; 2020 Construction Systems Pty Ltd v Dryka & Associates Pty Ltd [2010] WASC 22 [8] (Beech J). The expression 'purports to be' means 'professes or claims to be': 2020 Construction [38]; Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446, 452 (Hill J). By CA s 9, 'defect' in relation to a statutory demand includes:
(a)an irregularity; and
(b)a misstatement of an amount or total; and
(c)a misdescription of a debt or other matter; and
(d)a misdescription of a person or entity.
At some point along a continuum of non‑compliance with the requirements for a valid statutory demand, the Demand will be so defective that it will cease to be a 'demand' for the purposes of CA pt 5.4 and merely be a document; in that circumstance, it will be a nullity which the court must ignore as having legal consequences.
In this context, four issues arise for determination in the present case:
•Do the breaches of the OASDA make the Demand defective or render it a nullity?
•If the Demand is defective, should it be set aside pursuant to CA s 459J(1)(b) because substantial injustice will be caused to DWA unless the demand is set aside?
•If the Demand is defective, is there 'some other reason' for it to be set aside pursuant to CA s 459J(1)(b)?
•What final orders are appropriate?

Do the breaches of the OASDA make the Demand defective or render it a nullity?

The issue of when a statutory demand is so defective as to be a nullity was considered by Beech J in 2020 Construction. In that case, an action was commenced by writ seeking a declaration that a statutory demand was 'so defective that non‑compliance with it is insufficient to support an application to wind up [the plaintiff] in insolvency'. His Honour refused to grant an interlocutory injunction restraining the defendant from commencing any proceeding to wind up the plaintiff in insolvency in reliance on the statutory demand. The plaintiff had identified deficiencies in the affidavit filed with the statutory demand and in the manner in which it was sworn. Beech J was not persuaded that the plaintiff established a serious question to be tried that the statutory demand was a nullity or involved an abuse of process.
His Honour summarised the principles in the following manner:
Section 459J creates a regime quite different from the very strict approach to the issues of validity of bankruptcy notices. That was a deliberate choice by the legislature in enacting pt 5.4 of the Corporations Act. See, for example, Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226, 235 ‑ 238; Vicbar Pty Ltd v Development Constructions (Newcastle) Pty Ltd (1995) 13 ACLC 1220, 1224 ‑ 1225.
These two provisions in combination mean that a party alleging a defective statutory demand to be a nullity faces a high hurdle. Not all defects render a statutory demand liable to be set aside under s 459J, only those giving rise to substantial injustice or (perhaps) those constituting another reason to set aside the demand. Further, not all defects rendering a statutory demand liable to be set aside under s 459J will render it a nullity. Consequently, it would seem that only a very small set of extreme cases would fall into the category of nullity. That is borne out by the authorities.
It is important to notice that by s 9, 'statutory demand' means a document that is or purports to be a demand served under s 459E. It is clear from the case law that the definition in s 9 applies to pt 5.4 div 3. The expression 'purports to be' means 'professes or claims to be': Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446, 452.
The effect of that definition is to narrow the scope for an argument that the document served was a nullity which the court could ignore as having no legal consequences. The courts have referred to the possibility that a document professing to be a statutory demand might be so fundamentally defective that it would not be treated as a statutory demand See Topfelt Pty Ltd v State Bank of New South Wales Ltd (238); Kalamunda Meat Wholesalers (452); Vicbar Pty Ltd (1224 ‑ 1225); NT Resorts Pty Ltd v Deputy Commissioner of Taxation (Cth) (1998) 153 ALR 359, 367; Crema (Vic) Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd [2006] VSC 338; (2006) 24 ACLC 889 [91] ‑ [116]. In all these cases, the possibility was referred to, but found not to be applicable in the circumstances of the case. Cases in which it has been applied are few.
In Dromore Fresh Produce Pty Ltd v W Paton (Fertilizers) Pty Ltd (1997) 137 FLR 307, 311, Young J commented that cases will be 'very rare' where a demand is outside what is a purported demand.
In Crema [110] Dodds‑Streeton J suggested that only deficiencies of a gross and exceptional character would deny a document the status of a statutory demand. See also Quitstar Pty Ltd v Cooline Pacific Pty Ltd [2002] NSWCA 329 [15].
One case where a document was held not to be a statutory demand was Sheslow v Diamond Rose NL [2005] NSWSC 492; (2005) 54 ACSR 376. In that case, the demand did not purport to be served under s 459E, or under the Corporations Act at all, but under a different (non‑existent) Act. Consequently, the demand did not engage the definition in s 9 of the Corporations Act. In the context of a winding up application, the court held that the demand was not a statutory demand within the meaning of pt 5.4 of the Corporations Act.
Another case in which a court came to a similar conclusion is Beralt v Joe Battaglia Plastering Pty Ltd [1999] QSC 202; [2001] 1 Qd r 232. In that case, the statutory demand that left out the words in the prescribed form 'that the application [to set aside the demand] must be made within 21 days after the demand was served'. Ambrose J held that the demand was fundamentally deficient. He held that it was a fundamental requirement of a statutory demand in its prescribed form, to inform the debtor company that, among other things, failure to either pay the debt or secure or compound it within 21 days, or to apply to have the demand set aside within 21 days would allow the creditor to apply to a court to have the debtor company wound up. Because the demand failed to inform the debtor company of that essential matter it could not be treated as an effective demand for the purposes of s 459E. See [59] ‑ [60]. Consequently, his Honour made a declaration that the statutory demand does not substantially comply with the essential requirements of s 459E and the relevant form, and that non‑compliance with it is insufficient to support an application to wind up the applicant [36] ‑ [44].
The issue of what level of compliance with OASDA s 9 is required before a document becomes an affidavit was considered by Master Sanderson in Frayson. In that case the affidavit accompanying the statutory demand was sworn before the solicitor representing Stirfry. It was apparent that the solicitor was not an authorised witness within with OASDA s 9(7). Master Sanderson followed the decision of Senior Master Mahoney in Carb Royale Pty Ltd v Tonkin [2000] VSC 399; (2000) 35 ACSR 454 [11], where it was stated:
If [the affidavit] is not made before a person authorised to administer an oath or affirmation for an affidavit, the document, despite its form, will not be an affidavit; and the statutory demand will be liable to be set aside on that ground alone.
Master Sanderson concluded that the 'statutory demand ought to be set aside under CA s 459J' [20], though his Honour did not specify which of the paragraphs of CA s 459J(1) was relied on. However, the reference to CA s 459J makes it clear that Master Sanderson viewed the statutory demand as being defective, rather than being a nullity.
Counsel for DWA argued that the failure by the authorised witness to clearly write her name and qualification as an authorised witness as required by OASDA s 9(5)(a)(ii) is analogous to the non‑compliance in Frayson and should have the same consequences. Counsel for Truckworld argued that Frayson can be distinguished on its facts as in the present case the defect could be cured by a later affidavit, which was not possible in Frayson.
The decision in Carb Royale relied on by Master Sanderson in Frayson is directly on point. In that case, a person whose illegible signature appeared at the end of the jurat as that of the person who had administered the oath to the plaintiff failed to add below that signature by legible writing, type or stamp 'his name and address and a statement of the capacity in which he has authority to take the affidavit' as required by Supreme Court (General Civil Procedure) Rules 1996 (Vic), r 43.01 (7). Senior Master Mahoney drew a distinction between the requirements in the rules in relation to the affidavit and the requirements imposed on the witness. His Honour concluded that 'the failure of the solicitor before whom the defendant made the affidavit accompanying the statutory demand to comply with Rule 43.01(7) did not mean that the affidavit did not "comply with the rules" as required by section 459E (3)(b)' [9]. (original emphasis).
For present purposes, it is instructive to quote the entirety of the passage from which the particular passage in [19] above was extracted:
In my view, however, the failure of the person before whom the defendant made the affidavit to comply with Rule 43.01 (7) and, more particularly, with section 123C (3) of the Evidence Act, is not without consequence. A court readily recognises that the rationale of such provisions is to enable the court to take judicial notice of the signature of the person: see Re Noitaroproc Pty Ltd; Re Heine Finance Pty Ltd [1991] 9 ACLC 1331. The director or secretary of a company receiving a statutory demand and an accompanying affidavit in the form in which the plaintiff received the affidavit of the defendant is unlikely to recognise the significance of the omission. The presence or absence of the additional details underneath the signature of the witness to the deponent's signature usually will make no difference to him or her. One of the obligatory 'Notes' which appears at the end of a statutory demand (see Form 509H) repeats section 459E (3) but, unless the director or secretary is also a litigation lawyer, the likelihood is that the reference to the requirement that the affidavit comply 'with the rules' will generally be meaningless and, in most cases, insufficient to inspire the reader to consult such a lawyer. Usually, as in this case, it will be some other more obvious source of objection to the demand that will inspire the consultation. When consulted, however, and given the opportunity to peruse the statutory demand and the affidavit, the solicitors must be concerned whether the document is an affidavit at all. If it is not made before a person authorised to administer an oath or affirmation for an affidavit, the document, despite its form, will not be an affidavit; and the statutory demand will be liable to be set aside on that ground alone: cf Victor Tunevitsch Pty Ltd v Farrow Mortgage Services Pty Ltd (in liquidation) [1994] TASSC 121; [1994] 14 ACSR 565; 12 ACLC 963. In such circumstances it will be necessary to apply for an order that the statutory demand be set aside unless the solicitor knows the signature and that it is that of a person who is qualified to administer the oath or affirmation. Once a proceeding under section 459G has been duly commenced, the creditor will have the opportunity to answer the point by filing and serving an affidavit proving the identity, address and qualification of the witness - as happened in this proceeding. Until that proof is adduced, however, the proceeding is properly brought and there must be consequences as to costs even if the plaintiff has no other basis for obtaining an order that the statutory demand be set aside [11].

Senior Master Mahoney declined to set aside the statutory demand due to the non‑compliance with the rules. It must follow from his Honour's reasoning and conclusion that the statutory demand was not a nullity by reason of the person before whom the affidavit was administered not complying with the relevant rules. Rather, the demand was liable to be set aside (which can only occur pursuant to s 459J ‑ s 459J(2)), unless and until the creditor could answer the point by filing an affidavit.
In Victor Tunevitsch Pty Ltd v Farrow Mortgage Services Pty Ltd (in liq) (1994) 14 ACSR 565, Cox J held that the failure to serve any affidavit with a statutory demand constituted 'some other reason' to set aside the statutory demand pursuant to Corporations Law s 459J(b). It is implicit in this finding that the failure to serve an affidavit was a defect in the statutory demand, and did not render the statutory demand a nullity.
In contrast to the decision in Victor Tunevitsch, in McPherson Project Services Pty Ltd v Nine2Three Employment Solutions Pty Ltd [2008] NSWSC 384, Barrett J held that an affidavit served with an application to set aside a statutory demand which was not sworn at all, was not an 'affidavit' for the purposes of CA s 459G(3)(a). Accordingly, the application was dismissed. His Honour made the following observations that are relevant for present purposes:
One of the essential characteristics of an affidavit that is sworn (rather than affirmed), as this one purports to be, is that it is sworn in the presence of an official having authority under the Oaths Act 1900 to administer an oath who then appends his or her signature to show that the deponent has actually appeared before that person, been put upon his or her oath and, while on oath, has signed the document.
The absence of any indication that the deponent or supposed deponent appeared before any official recognised by the Oaths Act and that an oath was administered, so that the affidavit was sworn before that official, is fatal to the contention that the document is an affidavit - unless extrinsic evidence is tendered and received to prove those matters. No attempt has been made to adduce extrinsic evidence to show that the requirement of due swearing was observed.
The absence of an affidavit is fatal to the plaintiff's claim. The High Court made it clear in David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 that non‑compliance with s 459G(3) cannot be the subject of extension of time or other dispensation by the court. On this ground alone, therefore, the present application for an order under s 459G must be dismissed [6] ‑ [8].
In Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd (2008) 217 FLR 366, Barrett J again considered the issue. In that case the witness did not sign an affidavit filed in support of an application to set aside a statutory demand. His Honour held that if extrinsic evidence could be produced to show that the affidavit was in fact sworn, this would be sufficient to establish its 'character as an affidavit', in that case for the purposes of an application to set aside a statutory demand pursuant CA s 459G(3)(a) [39], [41]. However, the affidavit filed by the solicitor before whom the initial affidavit was sworn did not in fact prove that the initial affidavit was duly sworn [48]. Accordingly, the plaintiff was not able to establish that its application was 'made in accordance with' CA s 459G(3).
In the present case, Truckworld has, in substance, remedied the defect in the statutory demand by filing an affidavit of the witness, identifying herself and confirming that she was an authorised witness. The decision in Carb Royale [11] and, by parity of reasoning, the decisions in McPherson [7] and Fastlink [39] make it clear that the filing of this affidavit was permissible. In contrast to the decision in Frayson, the breaches in the present case were capable of being remedied in substance and were so remedied. Consistent with the authorities I have discussed above, I am of the view that the breaches of the OASDA in Mr Ives' affidavit are not so fundamental or egregious as to lead me to find that the Demand was not a 'statutory demand' for the purposes of CA pt 5.4, and in particular, CA s 459J. Rather, the affidavit, when considered with the evidence of Ms Saraceni, retained its 'character as an affidavit' for the purposes of CA s 459E, rendering the Demand merely defective. The Demand may only be set aside by reason of a defect pursuant to CA s 459J(1): CA s 459J(2).

Has DWA suffered substantial injustice due to the defect in the Demand?

The Court may set aside a defective statutory demand if it is satisfied that 'because of a defect in the demand, substantial injustice will be caused unless the demand is set aside': CA s 459J(1)(a).
The onus is on DWA as the recipient of the demand to establish a genuine dispute, offsetting claim, defect or other reason to set aside the statutory demand: Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5 [15] (Murphy JA, with whom Buss JA agreed); Kellogg [12] (Acting Master Gething).
The only evidence of the injustice said to be caused by the defects in the Demand is set out in Mr Forgione's affidavit. After referring to the two breaches of the OASDA, he states that he verily believes that 'there are defects with respect to [Truckworld's] statutory demand and the supporting affidavit … which cause substantial injustice to [DWA] such that the statutory demand should be set aside'. He provides no further details of the injustice which he asserts will be suffered by DWA.
In the course of submission, counsel for DWA was not able to elaborate on the nature of the injustice that DWA will suffer if the Demand is allowed to stand. In my view, any possible injustice was remedied by the affidavit from the authorised witness.
DWA has not satisfied me that it will suffer any injustice, let alone any substantial injustice, by reason of the defects in the Demand. I am not prepared to set aside the Demand pursuant to CA s 459J(1)(a).

Is there 'some other reason' to set aside the Demand?

The Court may set aside the Demand if 'there is some other reason why' this should occur: CA s 459J(1)(b). The reference in s 459J(1)(b) to 'some other reason' is a reference to a reason not otherwise indicated by the CA (for example in CA s 459H) as a ground to set aside a demand: Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWSC 338 [98] (Stevenson J); Saferack Pty Ltd v Marketing Heads Australia Pty Ltd (2007) 25 ACLC 1392 [27] (Barrett J); Kellogg [40]. It creates a remedial jurisdiction: Saferack [28]; Kellogg [40]. It will be 'rarely employed, but when employed, it will be for the purpose of meeting the demand of justice': Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91 [83] (Pullin JA, with whom Newnes and Murphy JJA agreed); Durkan v Sandbank Holdings Pty Ltd [2008] WASCA 249 [11] ‑ [12] (reasons of the court); Eumina Investments Pty Ltd v Westpac Banking Corp (1998) 84 FCR 454, 458 ‑ 459 (Emmett J); Kellogg [40] It contemplates 'a discretion of broad compass which extends to conduct that may be described as unconscionable, an abuse of process, or which gives rise to substantial injustice': Saferack [28]; Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3; (2005) 157 ACTR 22 [27] (Crispin P, Gray & Marshall JJ); Kellogg [40]. The discretion in CA s 459J(1)(b), unlike that in s 459J(1)(a), may be exercised in favour of the recipient of the demand even without showing that substantial injustice would otherwise be caused: Eumina (459); Kellogg [40]. However, the discretion in s 459J(1)(b) is limited to issues linked to the policy behind CA pt 5.4: Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd (1996) 20 ACSR 746, 757 (Bryson J); Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24; (2005) 53 ACSR 229 [59] (Young CJ in Eq); Fitness First Australia Pty Ltd v Dubow [2011] NSWSC 531 [162] (Ward J); Kellogg [40]. The 'essence' of the legislative intent of CA pt 5.4 'is to be found in the proposition that a winding‑up application is not to be used for the improper purpose of compelling a solvent company to pay a disputed debt': Meehan [47] (Santow J, with whom Tobias J agreed and Young CJ in Eq generally agreed); Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290, 294 ‑ 295 (Hayne J); Kellogg [40]. In Meehan, Young CJ in Eq commented that 'it is not possible to set out fully the cases that might fall within s 459J(1)(b) nor if it were possible would it be wise to do so' [60].
In the present case, DWA now knows that the Demand was sworn before an authorised witness. It has provided no particulars of any prejudice beyond the bald assertion in Mr Forgione's affidavit. Counsel did not identify any other reason why the Demand should be set aside. There is nothing in the materials before me to suggest that the statutory demand process is being used for the improper purpose of compelling a solvent company to pay a disputed debt.
DWA has not satisfied me that there is 'some other reason' to set aside the Demand pursuant to CA s 459J(1)(b).

What are the appropriate final orders?

I am not satisfied that the Demand should be set aside pursuant to CA s 459P.
The Demand was in the amount of $96,609.75. As I noted at the commencement of these reasons, Truckworld accepted that there is a genuine dispute as to $20,000 of the amount owing by reason of the payment on 5 September 2014. The appropriate order is thus to vary the Demand by reducing the amount to $76,609.75, pursuant to CA s 459H(4)(a).
I will hear from counsel as to costs.