In the matter of Wollongong Truck & Machinery Centre Pty Limited

Wollongong Truck & Machinery Centre Pty Limited was the defendant in an application brought under section 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand. The plaintiff, the creditor, had issued a statutory demand to the defendant, which was not complied with, leading to the creditor seeking to wind up the defendant in insolvency. The defendant applied to set aside the statutory demand within the permitted timeframe. The primary legal issue was whether the affidavit supporting the application to set aside the statutory demand was compliant with the requirements of section 459G(3) of the Corporations Act. The court examined whether the affidavit fairly and squarely set out the material by the company that the statutory demand should be set aside, as mandated by the precedent set in Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund.

The court found that the affidavit was poorly drafted and did not adequately meet the statutory requirements. Although there were slight indications that another point was being made beyond the agency argument, the primary thrust of the affidavit and the written submissions appeared to suggest that the plaintiff was merely an agent for an undisclosed principal. The court emphasised the importance of solicitors ensuring that affidavits are properly prepared to avoid prejudicing their clients' positions. The court concluded that the affidavit did not sufficiently comply with the Graywinter principle and that the application to set aside the statutory demand must therefore fail.

In summary, the court dismissed the defendant's application to set aside the statutory demand due to the inadequacies in the affidavit. The court ordered that the application be dismissed and that the statutory demand remain in effect, potentially leading to the winding up of the defendant in insolvency if the demand remains unsatisfied.