Australian Rural Group Ltd v Main Camp Tea Tree Oil Ltd [2001] NSWSC 1111

New South Wales Supreme Court

CITATION : Australian Rural Group Ltd v Main Camp Tea Tree Oil Ltd [2001] NSWSC 1111 FILE NUMBER(S) : SC 2716 of 2001 HEARING DATE(S) : Monday, 12 November 2001 Monday, 3 December 2001 JUDGMENT DATE : 3 December 2001

PARTIES : Australian Rural Group Limited (Plaintiff) Main Camp Tea Tree Oil Limited (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : C.C. Hodgekiss, T. Bartush-Peek (Plaintiff) K. Eassie (Defendant) SOLICITORS : Tey McMahon Solicitors (Plaintiff) Cordato Partners Solicitors (Defendant) LEGISLATION CITED : Corporations Act Bluecrest Holdings Pty Limited v Steve Blyth Electrical Engineering & Contracting Pty Limited 241 FCA (23 February 2001) Daewoo Australia Pty Limited v Suncorp-Metway Limited (2000) 33 ACSR 481 CASES CITED : David Grant & Co Limited v Westpac Banking Corporation (1995) 184 CLR 265 Gray Winter Properties Pty Limited v Gas & Fuel Corporation Superannuation Fund (1996) 21 ACSR 581 Topfelt Pty Limited v State Bank of New South Wales (1993) 120 ALR 155 DECISION : See paragraph 70.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 3 December 2001

2716/01 AUSTRALIAN RURAL GROUP -V- MAIN CAMP TEA TREE OIL LIMITED JUDGMENT 1 MASTER: By originating process filed on 18 May 2001 the plaintiff, Australian Rural Group Limited, claims against the defendant, Main Camp Tea Tree Oil Limited, substantively an order in the following terms: "An order pursuant to section 459H and/or section 459J that the Creditor's Statutory Demand for Payment of Debt pursuant to section 459E dated 2 May 2001 be set aside." 2 There was filed in support of that originating process an affidavit of Michael John Teys. That affidavit bears the date 30 March 2001. It will be appreciated that that date is a date considerably before the date of the originating process and, indeed, considerably before the date of the service of the statutory demand, which is the subject of the proceedings. 3 A subsequent affidavit by Mr Teys, sworn on 16 July 2001, states that the earlier affidavit "inadvertently referred to 30 March 2001 as the date of being sworn". Mr Teys states that the date of swearing was 18 May 2001. 4 A further somewhat curious aspect of that original affidavit of Mr Teys is that paragraph 2 thereof commences with the words, "This is a further affidavit in support of an application by the plaintiff." No other, or earlier, affidavit in support of that application appears to have been filed or, indeed, to be relied upon. 5 The principal affidavit of Mr Teys (which, although dated 30 March 2001, I will treat as having been sworn on 18 May 2001) annexes copies of documents which were served on the plaintiff on 3 May 2001, those documents being described as a creditor's statutory demand and an affidavit. 6 Mr Teys, in paragraph 4 of his affidavit, states as follows: "I note that the demand does not properly follow prescribed form 509H and that: