Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd

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.