In the matter of Unity Resources Group Australia Pty Limited

Unity Resources Group Australia Pty Limited was the subject of a creditor’s statutory demand. The respondent, Unity Resources Group Australia Pty Limited, sought to set aside the demand under section 459E of the Corporations Act 2001. The matter was heard in the Federal Court of Australia. The crux of the dispute was whether the statutory demand was validly issued, with particular focus on the timing and content of the affidavit verifying the debt.

The court had to determine if the statutory demand was properly executed. A key issue was whether the affidavit verifying the debt was executed and served within the stipulated timeframe and if it accurately reflected the debt at the time the demand was issued. Another point of contention was whether the absence of substantial injustice to the respondent was a necessary condition to setting aside the demand.

The court found that the affidavit verifying the debt was executed one day before the statutory demand was issued, which did not comply with the requirement that the affidavit speak to the debt at the time of the demand. The court held that the updating affidavit served after the demand did not rectify the initial defect. The court emphasised that the requirement to have an affidavit verifying the debt at the time of the demand is a strict statutory obligation, and the absence of substantial injustice to the respondent was not a requisite for setting aside the demand. Consequently, the court ruled that the statutory demand was defective and ordered that it be set aside.