Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund

Graywinter Properties Pty Ltd sought to set aside a statutory demand served by the Gas & Fuel Corporation Superannuation Fund under s 459E of the Corporations Law, which asserted that Graywinter owed the Fund $127,500. The applicant filed an application to set aside the statutory demand and an affidavit of Garrick Lewis Gray on 15 August 1996. The respondent objected to the filing of further affidavits on the ground that there was no valid application before the Court to which they could attach. The questions whether there is a valid application before the Court and whether the applicant should have further time in which to file supplementary material were referred to a Judge.

The court considered the legislative provisions and relevant case law, including David Grant & Co Pty Ltd v Westpac Banking Corporation, Scanhill Pty Ltd v Century 21 Australasia Pty Ltd, 71 Paisley Street Footscray Pty Ltd v Vineyards Estate Pty Ltd, John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd, The Hire Works Pty Ltd v Elexpo Pty Ltd, Re Louisbridge Pty Ltd, and Mibor Investments Pty Ltd v Commonwealth Bank of Australia. The court also examined O 71 r 36B of the Federal Court Rules.

The court found that the filing and service of a claim for relief and an affidavit which does not support the claim will not result in the making of an application under s 459G. The court also held that an affidavit must say something that promotes the company's case and must disclose facts showing there is a genuine dispute between the parties. A mere assertion that there is a genuine dispute is not enough.

The court concluded that the Gray affidavit sets out the facts, though not the evidence, which show a genuine dispute between the parties, and accordingly satisfies the minimum requirements. The applicant is therefore entitled to supplement the affidavit. The court made no order as to costs.

Final orders were made on 17 September 1996, declaring that the application filed on 15 August 1996 and the affidavit of Garrick Lewis Gray sworn on 15 August 1996 together constitute an application for the purposes of s 459G of the Corporations Law. The court also ordered that the applicant be at liberty to file a further affidavit or further affidavits in support of its application.