Bruce v Vanmeld [2001] NSWSC 362

New South Wales Supreme Court

CITATION : Bruce v Vanmeld [2001] NSWSC 362 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5185/2000 HEARING DATE(S) : 20/04/01 26/04/01 JUDGMENT DATE : 26 April 2001

PARTIES : John Bruce & Partners Limited v Vanmeld Pty Limited JUDGMENT OF : Master Macready at 1

COUNSEL : Mr W.G. Hodgekiss for plaintiff Mr R.D. Marshall for defendant SOLICITORS : Gary Cassim & Associates for plaintiff Ellis McLauchlan for defendant CATCHWORDS : Corporations Law. Application to set aside statutory demand. Failure to annexe a company search to the affidavit in support. - Held not a defect going to jurisdiction. - Demand set aside. CASES CITED : Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACLC 669. DECISION : Paragraph 23

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1 MASTER: This is an application under s 459G of the Corporations Law to set aside a statutory demand dated 8 December 2000 for $67,026, being an indebtedness said to arise under a deed between the parties made in June 1999. 2 The plaintiff raised four formal defects in the demand but only pressed two in the hearing before me. They also relied on the existence of a genuine dispute and an off-setting claim. 3 The defendant raised a matter going to jurisdiction and I will deal with that matter first. This concerned the non-compliance with r 2.4 of the Corporations Law rules, which is in the following form: "2.4(1) Unless the Court otherwise directs, an originating process, or interlocutory process, must be supported by an affidavit stating the facts in support of the process.

(2) An affidavit in support of an originating process must annex or exhibit a record of a search of the records maintained by the Commission, in relation to the company that is the subject of the application to which the originating process relates, carried out no earlier than 7 days before the originating process is filed."