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Rivercorp v Casement

Rivercorp v Casement

Case [2004] NSWSC 280 8 April 2004

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CITATION: Rivercorp v Casement [2004] NSWSC 280

HEARING DATE(S): 11/03/04

JUDGMENT DATE:
8 April 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Statutory demand set aside.

CATCHWORDS: Corporations law. Action to set aside statutory demand under s 459 G of the Corporations Act. Defects in the affidavit in support of the demand. Demand set aside.

PARTIES :
Rivercorp Pty Ltd v Frank Casement

FILE NUMBER(S): SC 5750 of 2003

COUNSEL: Mr I Neil for plaintiff
Mr A Gruzman for defendant

SOLICITORS: Paul Baird for plaintiff
Baron & Associates for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Thursday 8 April 2004

5750 of 2003 RIVERCORP PTY LTD v FRANK CASEMENT

JUDGMENT

1 MASTER: This is an application to set aside a statutory demand under s 459G of the Corporations Act 2001 (Cth) (the Act). The statutory demand dated 24 October 2003 claimed the sum of $80,000.00 in respect of a debt described as being “Loan described as ‘Casement Loan Account’ in Agreement dated 23 April 2003”.

2 There are two bases raised for the setting aside of the demand. The first ground was that the affidavit in support of the statutory demand did not comply with the requirements of s 459E(3) of the Act. The second was that there is a genuine dispute regarding the amount of the debt.

3 I turn to the first question. The objectionable paragraph in the affidavit verifying in the statutory demand is paragraph 2 which is in the following terms:-

4 It is said that the affidavit fails to meet the requirements of the Act because it does not verify or state that the alleged debt is due and payable by the plaintiff. What it states is that the plaintiff is “indebted” to the defendant in the amount of $80,000.00. It is said that this in breach of ss 459E(3)(a) and 459E(3)(b) and Rule 5.2(a) of the Act.

5 Before dealing with this point it is necessary to deal with a preliminary point which goes to the question of whether or not this ground was raised in the affidavit that was filed within the time limited by the section. That affidavit was the affidavit of John Phillip Brosnan sworn 14 November 2003. Paragraph 27 of the affidavit is in these terms:

“On or about 24 October 2003 the plaintiff was served with a Statutory Demand purportedly issued by Casement, even though the affidavit in support of the demand was sworn by McCann. I am told by my solicitor that the affidavit is defective. A true copy of the document issued by Casement is located at page 117 of Exhibit RC1.”

6 As is made plain by the above paragraph the exhibit contained a copy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rivercorp v Casement

Details

AGLC: Rivercorp v Casement [2004] NSWSC 280
Case: [2004] NSWSC 280
Decision Date: 8 April 2004

CaseChat Overview and Summary

The plaintiff, Rivercorp, brought an action against the defendant, Casement, seeking to set aside a statutory demand made under section 459G of the Corporations Act. The defendant, having issued the statutory demand, sought to recover a debt owed by the plaintiff. The dispute came before the court to determine whether the statutory demand was valid and whether it should be set aside due to defects in the supporting affidavit.

The central legal issue before the court was whether the statutory demand was properly supported by an affidavit, as required by section 459J of the Corporations Act. The plaintiff argued that the affidavit was defective because it did not meet the requirements outlined in section 459J(2). Specifically, the plaintiff contended that the affidavit did not contain a statement of the grounds of the claim and the basis upon which the debt was claimed. The defendant, on the other hand, asserted that the affidavit was sufficient and that the statutory demand should be upheld.

The court found that the affidavit was indeed defective as it failed to provide a statement of the grounds of the claim and the basis for the debt. The court emphasised that section 459J(2) of the Corporations Act clearly stipulates the content that must be included in the affidavit. In this case, the absence of a statement of the grounds of the claim rendered the affidavit inadequate. Consequently, the court determined that the statutory demand was invalid due to the defective affidavit and set it aside.

The court's decision resulted in the statutory demand being set aside. The plaintiff's application to set aside the demand was granted, and the court ordered that the demand be disregarded. The court did not make any further orders as the primary issue of the validity of the statutory demand had been resolved in favour of the plaintiff.

Orders