Cameron v GBST [2003] NSWSC 174

Reported Decision : (2003) 44 ACSR 712

New South Wales Supreme Court

CITATION : Cameron v GBST [2003] NSWSC 174 HEARING DATE(S) : 18/03/2003 JUDGMENT DATE : 18 March 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 35/36

CATCHWORDS : Corporations Law. Applicaion to set aside statutory demand. Discussion on need to include ground in initial affidavit. Demand set aside. Graywinter Properties Pty Limited v Gas & Fuel Corporation Superannuation Fund 21 ACSR 581 at 587 Civil Systems Pty Limited v BT Constructions Pty Limited. Master Macready 15/12/00. Process Machinery v ACN 057260590 (2002) NSWSC 45 CASES CITED : Missay Pty Limited v Seventh Cameo Nominees Pty Limited (in liquidation) (2000) VSC 397: Raffles Corporation Pty Limited v Cech (2001) QSC 129 Callite v Peter John Adams & Ors 2001 NSWSC 52. Zen Aust Imports Pty Limited v Allewak Chemical Works Co Ltd 6 July 1998 Eyota Pty Limited v Hanave Pty Limited 1994 12 ACLC 669 PARTIES : Cameron Stockbrokers Limited v GBST Holdings Pty Ltd FILE NUMBER(S) : SC 6139/2002 COUNSEL : Ms Painter for plaintiff Mr A.R.R. Vincent for defendant SOLICITORS : Peter Kemp Solicitor for plaintiff Hunt & Hunt Lawyers for defendant

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

TUESDAY 18 MARCH 2003

6139/02 - CAMERON STOCKBROKERS LIMITED v GBST HOLDINGS PTY LIMITED

JUDGMENT

1 MASTER: This is an application to set aside a statutory demand. The demand was issued by the defendant and was dated 11 December 2002 in the amount of $28,902.43. The moneys owing were referred to in a series of seven invoices. 2 The plaintiff says that there is a genuine dispute as to who was the contracting party. In this case there was also raised a question of jurisdiction. It is said that in the case the relevant dispute was not raised in the affidavits sworn and filed within the twenty one day period. 3 There is no doubt that it is possible to supplement material filed in time by a later affidavit, and the principles in this regard have been set out by Sunberg J in Graywinter Properties Pty Limited v Gas & Fuel Corporation Superannuation Fund 21 ACSR 581 at 587. 4 There has been a clear dispute on the cases as to whether or not, provided there has been a supporting affidavit filed within the twenty one day period of the application, that it may be amended by allowing additional grounds raised after the twenty one day period. 5 In Civil Systems Pty Limited v BT Constructions Pty Limited, a decision of mine on 15 December 2000, I drew attention in paragraph 11 to the different first instance decisions to which I had been directed at that time. 6 The matter has been dealt with further by a Judge of this Court and also the Full Court of Western Australia. In Process Machinery v ACN 057260590 (2002) NSWSC 45, Barrett J decided that a new ground could not be raised in such circumstances. 7 In paragraph 16 and following his Honour expressed his views as follows: "Furthermore, the applicant is confined to the grounds shown by the application and supporting affidavit filed and served within the twenty one day period to which s459G refers. This last point is important. It was recently confirmed by the Full Court of the Supreme Court of Western Australia in Energy Equity Corp Limited v Sinedie Pty Limited 2001 WASCA 419 (20 December 2001). Wallwork J (with whom Steytler J and Olsson AU agreed) quoted the following passage from the judgment of Perry J in D & S Group of Companies Pty Limited v O'Connor Investment Pty Limited (1975) 15 ACLC 1794 (in which the opening words refer to an observation of Gummow J in David Grant: