Farnow v Jazute Pty Ltd [2001] NSWSC 1158

New South Wales Supreme Court

CITATION : Farnow v Jazute Pty Ltd [2001] NSWSC 1158 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3066/01 HEARING DATE(S) : 11/12/01 JUDGMENT DATE : 13 December 2001

PARTIES : Farnow Technologies Pty Ltd v Jazute Pty Ltd JUDGMENT OF : Master Macready at 1

COUNSEL : Mr P.B. Walsh for plaintiff Mr. M.J. Cohen for defendant SOLICITORS : M.D. Nikolaidis & Co for plaintiff Gadens Lawyers for defendant CATCHWORDS : Corporations Law. - Application to set aside statutory demand. - Demand set aside. - No matter of principle. DECISION : Paragraph 27

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1 MASTER: This is an application under s 459G to set aside a statutory demand served by the defendant on the plaintiff. That demand is dated 25 May 2001 and claims a debt, being an amount advanced by the defendant to the plaintiff in the sum of $312,500. 2 The defendant claims that the amount was a loan to the plaintiff. The plaintiff contends that the funds were contributed on an equity basis to the intent that shares ultimately were to be issued. This is said to give rise to a genuine dispute. The defendant also seeks to attack the proceedings on the basis that there is no jurisdiction. 3 It is said that the affidavit sworn in support of the application was not a sufficient affidavit. The law in this regard is conveniently set out in the judgment of Sunburg J in Graywinter Properties Pty Limited v Gas and Fuel Corporation Superannuation Fund, 21 ACSR, 581. At 587.8 his Honour had the following to say: "Is a complying affidavit a condition of jurisdiction?

It seems to me that as 459G(3) makes plain that the Court can entertain an application to set aside only if within the prescribed period an affidavit supporting the application is filed and copies of the application and affidavit ares served. The High Court in Grant said that compliance with the subsection is a limitation or a condition upon the authority of the Court to set aside a demand; it is a condition of the jurisdiction that subs (3) be observed; if the condition is not observed there is no application before the Court. I am thus unable to agree with the Senior Master that the failure of an affidavit to satisfy the minimum requirements for an affidavit to be a "supporting affidavit" is not a jurisdictional impediment.