Imagebuild Group Pty Ltd v Fokust Pty Ltd

In the matter of Imagebuild Group Pty Ltd v Fokust Pty Ltd, Imagebuild sought leave to appeal from the decision of an associate judge dismissing its application to set aside a statutory demand. The application was dismissed by the associate judge on the basis that a supporting affidavit had not been filed and served within the specified 21-day period, as required by s 459G of the Corporations Act 2001 (Cth). The applicant sought to challenge the associate judge's decision on the basis that the Watson affidavit was sufficient to satisfy the requirement of a supporting affidavit. The Court was required to determine whether the Watson affidavit constituted a sufficient supporting affidavit within the meaning of s 459G, and if not, whether this was a sufficient ground to refuse leave to appeal. The Court held that the Watson affidavit was not a supporting affidavit within the meaning of s 459G, relying on the decisions in Graywinter and Hansmar. The Court held that the Watson affidavit was not a supporting affidavit as it was not sworn and did not contain any personal knowledge of the deponent. The Court refused the application for leave to appeal. The Court held that it was not satisfied that the appeal had prospects of success, as the Watson affidavit did not constitute a supporting affidavit within the meaning of s 459G, and therefore the associate judge's decision was correct. The Court further held that even if the Watson affidavit was to be considered as a supporting affidavit, the associate judge's decision would still be correct as the applicant had not provided a satisfactory explanation for the delay in swearing the affidavit. The Court made no order as to costs.