In the matter of Nanevski Developments Pty Limited

Nanevski Developments Pty Limited applied to the Supreme Court of New South Wales to set aside a statutory demand served by Saferack Pty Ltd. The dispute centred on the validity of the statutory demand and whether the applicant had grounds to challenge it. The court was tasked with determining whether the applicant could introduce a new ground for setting aside the statutory demand, despite the absence of this ground in the initial affidavit, and whether this was precluded by the principle established in the case of Graywinter v Graywinter.

The primary legal issue was whether the applicant could amend its originating process to include a new ground for setting aside the statutory demand, even though this ground was not initially mentioned in the affidavit. The court considered whether this was permissible under the principle that a party should not be allowed to introduce new arguments or grounds that were not previously disclosed or referred to in the affidavit, as established in Saferack Pty Ltd v Marketing Heads Australia Pty Ltd. The court had to decide if the new ground was apparent from the face of the documents annexed to the affidavit.

The Supreme Court allowed the application to amend the originating process, subject to the usual costs order. The court found that the new ground for setting aside the statutory demand was apparent from the documents annexed to the affidavit, even though it was not explicitly mentioned in the affidavit itself. The court applied the principle from Saferack Pty Ltd v Marketing Heads Australia Pty Ltd, concluding that the applicant was not precluded from advancing the new ground, provided the amendment was made in a timely manner and did not cause substantial delay or unfairness to the other party. The court's decision balanced the need for procedural fairness with the importance of finality in litigation processes.