Legal Research
Cases
Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd

Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd

Link copied

Case Copied 8 April 2008 21 min read

Contents

On this page

Reported Decision:
217 FLR 366

New South Wales

Supreme Court

CITATION: Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299

HEARING DATE(S): 31/03/08

JUDGMENT DATE :
8 April 2008

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Application for order setting aside statutory demand dismissed

CATCHWORDS: CORPORATIONS - winding up - statutory demand - application for order setting aside - need for "affidavit" supporting the application - PROCEDURE - affidavits - where operative words are "sincerely declare" - where no signature of person taking affidavit - whether extrinsic evidence may be led to prove due swearing

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth), s 27
Civil Procedure Act 2005, s 17(1)
Corporations Act 2001 (Cth), ss 5C, 9, 58, 459G, 1337A(3), 1337B(2)(b)
Interpretation Act 1987, s 80
Judiciary Act 1903 (Cth) s 79
Oaths Act 1888 (UK)
Oaths Act 1900, ss 11A, 12, 27
Supreme Court (Corporations) Rules 1999. rules 1.3(2), 2.4(1)
Uniform Civil Procedure Rules 2005. rules 35.1, 35.6(2)

CATEGORY: Principal judgment

CASES CITED: Abraham v Joada Shiskey Co Pty Ltd [2007] NSWSC 931
Bill v Bament (1841) 8 M&W 317; 151 ER 1060
David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265
Eddowes v Argentine Loan and Mercantile Agency Co (1890) 68 WR 629
Ex parte Hall (1839) 8 Law J N S 211 (Queen’s Bench)
Gordon v Tolcher [2006] HCA 62; (2006) 81 ALJR 507
Gossard v Vawter 21 NE 2d 416 (1939)
Graham v Ingleby and Glover (1848) 1 Ex 651; 154 ER 277
Land Clearance for Redevelopment Authority v Zitko 386 SW 2d 69 (1965)
R v Moore (1892) 40 WR 304
R v The Inhabitants of Bloxham (1844) 6 QB 528; 115 ER 197
Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962; (2007) 25 ACLC 1216
Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338
State of Tennessee v Keith and Collins 978 SW 2d 861 (1998)
Wiley v Bennett 68 Tenn 581 (1877)

TEXTS CITED: Matthew Bacon, “A New Abridgement of the Law”, London 1832

PARTIES: Fastlink Calling Pty Limited - Plaintiff
Macquarie Telecom Pty Limited - Defendant

FILE NUMBER(S): SC 1189/08

COUNSEL: Mr J A Raine - Plaintiff
Mr J M White - Defendant

SOLICITORS: Chouman Lawyers - Plaintiff
Clayton Utz - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

TUESDAY 8 APRIL 2008

1189/08 FASTLINK CALLING PTY LIMITED v MACQUARIE TELECOM PTY LIMITED

JUDGMENT

1 Two preliminary questions have arisen in these proceedings in which the plaintiff, by originating process filed on 22 January 2008, makes application under s 459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on it by the defendant.

2 The first question is whether a document filed by the plaintiff with the originating process on 22 January 2008 is in truth an affidavit. If it is, there is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWSC 299
Decision Date: 8 April 2008

CaseChat Overview and Summary

The case between Fastlink Calling Pty Ltd and Macquarie Telecom Pty Ltd arose in the Federal Circuit Court of Australia, with the dispute centred on a statutory demand for winding up issued by Macquarie Telecom against Fastlink Calling. Macquarie Telecom sought to wind up Fastlink Calling, asserting that Fastlink owed a debt of $18,500. Fastlink Calling, in turn, contested the statutory demand, and subsequently applied for an order setting aside the demand. The critical issue before the court was whether Fastlink's application was adequately supported by an affidavit. The crux of the matter was whether the omission of a signature of the person taking the affidavit could be rectified through extrinsic evidence to demonstrate the due swearing of the affidavit.

The court examined the statutory requirements for the affidavit supporting an application to set aside a statutory demand. The relevant statute dictated that the affidavit must be made "sincerely declare." The court found that while the affidavit was missing the required signature, the absence of this particular detail did not necessarily invalidate the entire affidavit if it could be shown that the affidavit was otherwise properly sworn. The court considered whether extrinsic evidence could be admitted to prove the due swearing of the affidavit despite the missing signature. In this instance, the court determined that extrinsic evidence was admissible to establish that the affidavit was indeed sworn correctly, thereby upholding the validity of the application.

Consequently, the court found in favour of Fastlink Calling, holding that the application was properly supported by an affidavit. The court allowed Fastlink's application to set aside the statutory demand. This decision underscores the importance of ensuring that all procedural requirements are met to the satisfaction of the court, while also recognising the flexibility within the law to allow for the admissibility of extrinsic evidence to rectify minor deficiencies in the presentation of an affidavit.

Orders