Whelpton, K. v Braams Constructions P/L

[1994] FCA 473

IN THE FEDERAL COURT OF AUSTRALIA                 )
  )
NEW SOUTH WALES DISTRICT REGISTRY                )  No G 3050 of 1994
  )
GENERAL DIVISION  )
  )

BETWEEN:          KEVIN WHELPTON

Applicant

AND:                   BRAAMS CONSTRUCTIONS PTY LIMITED

Respondent

Coram:        Davies J.
Date:          7 June 1994
Place:         Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.The order made on 29 April 1994 dismissing the application be vacated.

2.The application be set down for hearing at a date convenient to the parties, the costs being the costs of the application. 

Note:          Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                  )
  )
NEW SOUTH WALES DISTRICT REGISTRY                 )  No G 3050 of 1994
  )
GENERAL DIVISION  )
  )

BETWEEN:           KEVIN WHELPTON

Applicant

AND:  BRAAMS CONSTRUCTIONS PTY LIMITED

Respondent

Coram:        Davies J.
Date:           7 June 1994
Place:          Sydney

REASONS FOR JUDGMENT

In this matter, there is an application brought by the applicant, Kevin Whelpton, against the respondent, Braams Constructions Pty Limited, which seeks to wind up the company under s.459P of the Corporations Law. The ground relied upon is that the respondent failed to comply with a statutory demand served under s.459E of the Corporations Law. Section 459E provides, inter alia:

"(3)Unless the debt, or each of the debts, is a judgment debt, the demand must be accompanied by an affidavit that:

(a)verifies that the debt, or the total of the amount of the debts, is due and payable by the company; and

(b)complies with the rules."

When the application first came on for hearing, I ordered that it be dismissed on the ground that the affidavit which had accompanied the statutory demand did not, as a matter of substance, comply with r.36A of the Corporation Rules of this Court.  In particular, it did not specify the date when the debt, or debts were incurred and did not contain the Important Note set out in Form 93B in the First Schedule of the Rules. 

However, my attention was not directed to r.36A(4) of the Corporation Rules which provides:-

"For the purposes of subsection 459E(3) of the Corporations Law, an affidavit in support of a statutory demand that complies with the rules of a Supreme Court of a State or Territory is taken to be an affidavit that complies with this rule."

After the order was made but before it was taken out, I was asked by the applicant to vacate the order for the reason that the affidavit supporting the statutory demand satisfied the Rules of the Supreme Court of New South Wales. 

The statutory demand referred to the affidavit of the applicant verifying that the amount was due and payable by the company.  Moreover, in a schedule of the statutory demand, the description of the debt or debts was given:-

Door Furniture  $ 3,500

Inside Staircase  $ 2,500
         Hot Water System  $ 2,400
         Air Conditioner  $ 8,500
         Painter  $11,200
         Plumber  $ 2,800
         Carpenter  $ 5,900
         Electrician  $ 5,600
         Tennis Court  $10,000
         Tennis Court Fencing                   $ 6,500
         Miscellaneous Joinery                  $23,800
         Footrail  $   800
         Window Shutters  $ 3,500
         Fly Screens  $ 2,500
         Sandstone  $ 5,100
  _______
  $94,600

The affidavit of verification read as follows:-

"On   December 1993, I Kevin Whelpton, of 119 Merrivale Lane, Turramurra, in the State of New South Wales, say on oath:

1.I am the Creditor and I have personal knowledge of the facts matters and circumstances that give rise to this demand. 

2.I verify that the total of the debt of $94,600.00 owing by the company is due and payable.

3.I believe the matters in this Affidavit to be true and correct.

4.I believe there is no genuine dispute regarding the debt to which this demand relates."

Having considered the matter, I am satisfied that, as a matter of substance, the affidavit satisfied r.15 of Part 80A of the Rules of the Supreme Court of New South Wales.  In particular, I am satisfied that the affidavit verified both the liability and the amount and the amount of the debt or debts. 

In this circumstance, it is appropriate that I order that the order made on 29 April 1994 dismissing the application be vacated.  The application will be set down for hearing on a date convenient to the parties.  The costs should, in my opinion, be costs of the application. 

I certify that this and the 3 preceding pages
are a true copy of the reasons for judgment herein
of the Honourable Mr Justice Davies.

Associate:

Date:    7 June 1994

Counsel for the applicant:                  D.B. Studdy

Solicitors for the applicant:                Gilbert & Tobin

Counsel for the respondent:                P. Clay

Solicitors for the respondent:             Ross Koffel Solicitors

Date of hearing:  6 May 1994

Date of judgment:  7 June 1994