T-D Joint Venture Pty LD v CTC Marine Projects Limited

[2009] WASC 385

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   T-D JOINT VENTURE PTY LD -v- CTC MARINE PROJECTS LIMITED [2009] WASC 385

CORAM:   MASTER SANDERSON

HEARD:   26 NOVEMBER 2009

DELIVERED          :   26 NOVEMBER 2009

PUBLISHED           :  15 DECEMBER 2009

FILE NO/S:   COR 179 of 2009

BETWEEN:   T-D JOINT VENTURE PTY LD (ACN 124 308 685)

Plaintiff

AND

CTC MARINE PROJECTS LIMITED (ARBN 132 168 177)
Defendant

Catchwords:

Corporations law - Application to set aside statutory demand - Affidavit supporting the application served on the defendant not an exact copy of affidavit filed with application - Turns on own facts

Legislation:

Nil

Result:

Demand set aside

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M M Mony de Kerloy

Defendant:     Mr P J Ward

Solicitors:

Plaintiff:     Mony de Kerloy

Defendant:     Blake Dawson

Case(s) referred to in judgment(s):

Bell Construction Services Pty Ltd v Form‑Kwip Building Services Pty Ltd [2001] NSWSC 73

David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265

Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2001] WASCA 299; (2002) 20 ACLC 352

Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409; (2000) 158 FLR 338

1. MASTER SANDERSON: This was the plaintiff's application to set aside a statutory demand. The application was brought under s 459G of the Corporations Act 2001 (Cth). The plaintiff alleged there was a genuine dispute as to the debt the subject of the demand. At the conclusion of the hearing I dismissed the plaintiff's application. I indicated I would publish reasons at a later date. These are those reasons.

2. To initiate its application, the plaintiff lodged an originating process and an affidavit in support of the application.  The affidavit in support of the application was sworn by Anthony Richard Ross on 16 September 2009.  The copy of the affidavit that was served on the defendant omitted page 4 of the affidavit.  As a result the copy of the affidavit served was not an exact copy of the affidavit that was filed.  This defect was not immediately apparent to the defendant's solicitors.  They only realised the mistake some weeks after the documents were served upon them.  As soon as the defect was brought to the plaintiff's solicitors' attention, a fresh copy of the affidavit was served.  The defendant did not suggest they had suffered any prejudice whatsoever as a consequence of the omission of page 4 of Mr Ross's affidavit.

3. It was the defendant's position that the failure to serve an exact copy of the affidavit meant that the jurisdiction to entertain the application had not been enlivened.  As counsel for the defendant pointed out, this was a question of jurisdiction and arose independent of anything said by the defendant.  Furthermore, it was not a defect which the defendant could waive.  It was a case where there was no jurisdiction to entertain the application. 

4. In my view the defendant's submissions are correct. There is now a line of authority which establishes that s 459G requires that an exact copy of the application and the affidavit in support be served on the defendant. Substantial compliance with the requirements of the section is not sufficient. This principle emerges from the decision of the Full Court of this court in Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409; (2000) 158 FLR 338. That case did concern the failure to serve a number of pages of an annexure to the affidavit. The court held, in unequivocal terms, this failure was fatal to the application. This decision is consistent with the decision of Santow J in Bell Construction Services Pty Ltd v Form‑Kwip Building Services Pty Ltd [2001] NSWSC 73. This strict approach has been consistently followed in this and other jurisdictions. It must be acknowledged, however, there is some difference of judicial opinion on this issue. In Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2001] WASCA 299; (2002) 20 ACLC 352, the Full Court of this court attempted to distinguish the Robowash decision.  In this case the copy of the affidavit served with the application differed from the original affidavit in that it contained two copies of page 3, no page 4, two copies of page 11, no page 12, two copies of page 21 and a blank page.  The court distinguished Robowash on the basis that the omitted material was known to each party and was not as 'essential' as the annexures in Robowash.  Their Honours observed that where the defect in compliance was 'slight' the notion that substantial compliance with the requirement for service of a copy of the affidavit and its annexures may be insufficient was 'questionable':  see Eastern Metropolitan Regional Council [20].

5. It is very difficult to reconcile the Robowash decision with the Eastern Metropolitan Regional Council decision.  In David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 Gummow J made it plain that strict compliance with s 459G is a jurisdictional requirement. The court has no discretion in relation to these requirements. That being so, the section appears to require that an 'exact' copy of the affidavit be served with an 'exact' copy of the application. If that is not done then there is no jurisdiction to hear the application.

6. In the course of his submissions, counsel for the plaintiff submitted that using the rules of court I could order page 4 of the affidavit filed in support of the application should be removed from the court record with the result the filed copy and the served copy of the affidavit would coincide.  Counsel indicated he was prepared to then argue the matter on that basis.

7. Ingenious though that argument may be, it does not, in my view, cure the problem.  At the risk of being repetitive, the documents which are filed must be copies of the documents that are served.  Any attempt at subsequent rectification of the record would not solve the problem.  The jurisdiction has not been invoked.  That is the end of the matter.

8. It is perhaps worth observing that this rigidity in s 459G can be productive of injustice. This case provides an instance of that injustice. The defendant suffered no prejudice as a result of the omission of one page of an affidavit. No opportunity arose to consider the merits of the application. Now the plaintiff faces the prospect of dealing with an application to wind it up where it will have to satisfy the requirements of s 459S if it wishes to allege the debt the subject of the demand is disputed. It is difficult to see how leaving the parties in this state of uncertainty could be in the best interests of anyone.

9. It is for these reasons I dismissed the plaintiff's application and ordered the plaintiff pay the defendant's costs of the application including the reserved costs.