In the matter of Killard Excavation Pty Limited

[2015] NSWSC 280

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Killard Excavation Pty Limited [2015] NSWSC 280
Hearing dates:	2 March 2015
Date of orders:	02 March 2015
Decision date:	02 March 2015
Jurisdiction:	Equity Division - Corporations List
Before:	Brereton J
Decision:	The affidavit is compliant for the purposes of (Cth) Corporations Act 2001, s 459G.
Catchwords:	PROCEDURE – affidavits – whether document filed could properly be called an affidavit – where annexures to, and place and date of swearing of, the affidavit are omitted – where truthfulness of contents of document sworn on oath – held, defects do not deprive document of character as affidavit.
Legislation Cited:	(Cth) Corporations Act 2001, s 459G, s 459H, s 459J (NSW) Uniform Civil Procedure Rules 2005, r 35.1, 35.6(2), r 37.7B
Cases Cited:	Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299; (2008) 217 FLR 366 Micar Group Pty Ltd v Insul-Trade LLC [2010] NSWSC 1391
Category:	Procedural and other rulings
Parties:	Killard Excavation Pty Ltd (ABN 91 086 740 650) (plaintiff) Recoup Debt Recovery Pty Ltd (ABN 72 153 203 840) (defendant)
Representation:	Counsel: D Allen (plaintiff) P Rodionoff (defendant) Solicitors: Dib Lawyers (plaintiff) Glenn Bower (commercial agent) (defendant)
File Number(s):	2015/6753

Judgment (ex tempore)

1. HIS HONOUR: On 8 January 2015, the plaintiff Killard Excavation Pty Limited filed an originating process claiming relief under (Cth) Corporations Act 2001, ss 459G, 459H and 459J, setting aside a creditor’s statutory demand served on it by the defendant Recoup Debt Recovery Pty Limited dated 17 December 2014. Filed and served with the statutory demand was a document, which is PX01 before me, entitled “Affidavit.”

2. That document is signed by one Jerry Daly, apparently a director of the plaintiff. The affidavit commences,

On I, Jerry Daly, of [address] in the State of New South Wales, Director, make oath and say.

3. The jurat is expressed in the following terms,

Sworn at on before me, Nitin Manji Patel JP, New South Wales registration number 200083, witness.”

4. After the certification of identification of the deponent appears the signature of the witness, who did not sign above his printed name, although the words, “Signature and designation of person before whom deponent swears affidavit” appear to make provision for such signature.

5. The affidavit refers, in its first paragraph 2, to annexure A, a company search, which is, in fact, not annexed to the affidavit. In paragraph 6, it refers to an annexure B; in paragraph 11, to an annexure C; and in paragraph 15 to another annexure C, which is identifiable as a document which is marked D and attached to the affidavit. It is evident from the original on the Court file that that annexure was initially marked C, which has been whited out and had D superimposed. None of the annexures bear the certificate of annexure referred to in (NSW) Uniform Civil Procedure Rules 2005, r 35.6(2). Each page of the affidavit is not signed by the deponent and the witness as required by r 37.7B; only the jurat on the third page is so signed.

6. The defendant contended that the application was not duly made as it was not supported by a document that could properly be called an affidavit and, for that reason, the Court on 16 February 2015 ordered that the question whether the application was made in compliance with s 459G be heard and determined before the other issues arising in the proceedings and fixed that question for hearing today.

7. The essence of an affidavit is that it is a statement to which a person has sworn on oath by their God that the contents are true [Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299; (2008) 217 FLR 366, [15]-[19]; Micar Group Pty Ltd v Insul-Trade LLC [2010] NSWSC 1391, [10]-[40]].

8. Although the jurat does not refer to the place and date of swearing, on its face it contains the witness’ assertion that the affidavit was sworn before him. In any event, the extrinsic evidence in the form of affidavits of the deponent Jerry Daly of 24 February 2015, of Hannah Ibrahim also of 24 February 2015, and of the witness, Nitin Patel, of 24 February 2015, all confirm that the deponent, holding the documents which comprise the affidavit, said words to the effect, “I swear by God that the contents of this document are true.” On the authorities to which I have referred, it is clear that that suffices to render the document an affidavit, notwithstanding that the oath may not be in the prescribed form.

9. UCPR, r 35.1, provides that an affidavit may, with the leave of the Court, be used despite any irregularity in form. The omissions of the dates of swearing and the place of swearing are defects in form which can be disregarded under r 35.1, as can the omission of the prescribed certificates of annexure. The omission of annexure A, in the light of the evidence as I am told, suggests that that annexure was not in fact present at the time when the affidavit was sworn and that the first paragraph 2 of the affidavit was, therefore, probably false, but does not deprive the document of the quality of an affidavit.

10. I am satisfied that the originating process was accompanied by an affidavit supporting it and no issue is taken but that the originating process and that document were served within time. Accordingly, I am satisfied that the application was one complying with s 459G in that sense.

11. Although the plaintiff has succeeded on the separate question, the issues raised were occasioned by multiple, albeit non-fatal, defects in its affidavit. For that reason, I am not prepared to allow the plaintiff the costs of the separate question.

12. The Court therefore orders that:

1. The preliminary question, whether the application under s 459G was compliant with s 459G be answered in the affirmative: “Yes, the application was compliant with s 459G”.

2. The proceedings be fixed for hearing on 27 March 2015.

3. The usual order for hearing, provided that the plaintiff’s outline of submissions is to be lodged with my associate and served by 20 March 2015 and the defendant’s by 25 March 2015.

4. No party may rely at the hearing, without the leave of the Court, on any affidavit evidence that has not yet been served, provided that the plaintiff may serve a supplementary affidavit by 9 March 2015 and the defendant may serve any evidence strictly in reply to that affidavit by 16 March 2015.

5. There be no order as to costs of the separate question, to the intent that each party bear its own costs.

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Decision last updated: 20 March 2015