New South Wales Supreme Court CITATION : Tuta Healthcare v Nipro Asia [2005] NSWSC 664 HEARING DATE(S) : 1 July 2005 JUDGMENT DATE : 1 July 2005 Equity JURISDICTION : Corporations List JUDGMENT OF : Campbell J DECISION : Evidence not allowed. Amendment not allowed. CATCHWORDS : CORPORATIONS - winding up - statutory demand - setting aside - allowable evidence - allowable amendments to application Chadah Pty Limited v Kubota Tractor Australia Pty Limited [2003] NSWSC 456 Elm Financial Services Pty Limited v MacDougal [2004] NSWSC 560 Energy Equity Corporation Limited v Sinedie Pty Limited (2001) 166 FLR 179 Financial Solutions Australasia Pty Limited v Predella Pty Limited (2002) 167 FLR 106 Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 21 ACSR 581 CASES CITED : Meadowfield Pty Limited v Gold Coast Holdings Pty Limited [2001] WASCA 360 POS Media Online Limited v B Family Pty Limited (2003) 21 ACLC 533; [2003] NSWSC 147 Process Machinery Australia Pty Limited v ACN 057260590 Pty Limited [2002] NSWSC 45 Scope Data Systems v BDO Nelson Parkhill (2003) 199 ALR 56; [2003] NSWSC 137 Tokich Holdings Pty Limited v Sheraton Constructions (NSW) Pty Limited (2004) 185 FLR 130; [2004] NSWSC 527 Topfelt Pty Limited v State Bank of New South Wales Ltd (1993) 12 ACSR 381 Tuta Healthcare Pty Limited - Plaintiff PARTIES : Nipro Asia Pty Limited - Defendant FILE NUMBER(S) : SC 5244/04 R K Eassie - Plaintiff COUNSEL : M J Dawson - Defendant Cordato Partners - Plaintiff SOLICITORS : TressCox Lawyers - Defendant LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST CAMPBELL J FRIDAY 1 JULY 2005 5244/04 TUTA HEALTHCARE PTY LIMITED v NIPRO ASIA PTY LIMITED JUDGMENT – Ex Tempore 1 HIS HONOUR: This is an application to set aside a statutory demand on the ground that there is a bona fide dispute, and also an offsetting claim. 2 The statutory demand is one which was received by the plaintiff on 7 September 2004. Application was commenced within time to set it aside, supported by an affidavit of Robyn Herft sworn 24 September 2004. 3 The debt on which the statutory demand is based is one identified in certain invoices sent by the defendant to the plaintiff for stock. 4 The affidavit of Mr Herft gave evidence that an agency agreement between the defendant and the plaintiff had been terminated. It gave evidence that there was unpaid stock, which he put at around $235,000, in the plaintiff's premises. He described that stock as being "delivered to the plaintiff but unpaid at that time". 5 Various invoices are annexed to that affidavit. Those invoices show, on their face, that the addressee was a corporation called Tuta Healthcare International Pty Ltd. 6 The plaintiff is named Tuta Healthcare Pty Limited. 7 As well, the notice of termination, which was annexed, is one which was addressed to the managing director of Tuta Laboratories (Australia) Pty Ltd. Notwithstanding that, Mr Herft described the notice of termination as "notice of termination of an agency agreement between the plaintiff and defendant company". 8 An affidavit of Monique Molaro has been filed, sworn on 15 April 2005. It annexes corporate searches, which show that Tuta Healthcare Pty Limited and Tuta Properties Pty Limited are separate companies. 9 Objection is taken to that affidavit in accordance with the principle in Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 21 ACSR 581. That is a case which has been followed many times in this Division and elsewhere in Australia. It has been described by Barrett J in Elm Financial Services Pty Limited v MacDougal [2004] NSWSC 560 at 7 as meaning: "… that the application for an order setting aside the statutory demand and the affidavit in support of that application, both filed and served within the twenty-one day period stipulated in s. 459G (3) must fairly alert the claimant to the nature of the case the company will seek to make in seeking to have the statutory demand set aside. The content of the application and affidavit must convey, even if it be by necessary inference, a clear delineation of the area of controversy so that it is identifiable with one or more of the grounds made available by ss. 459H and 459J for setting aside statutory demands. That process of delineation may not be extended after the end of the twenty-one day period, although it is open to the plaintiff to supplement the initial affidavit by way of additional evidence relevant to the area of controversy identified within the period." 10 The material contained in Ms Molaro's affidavit is material which is intended to found a submission that the wrong company has been charged for the product, and that it is not the plaintiff which received the invoices, or the product. That is a submission, or a basis of argument, which could never have been gleaned from the affidavit of Mr Herft of 24 September 2004. In accordance with the Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 21 ACSR 581 principle, I decline to allow Ms Molaro's affidavit to be read. 11 Mr Eassie referred me to Topfelt Pty Limited v State Bank of New South Wales Ltd (1993) 12 ACSR 381, and in particular the portion at 397, where Lockhart J said: "I see nothing in the terms or spirit of s. 459G which would lend support to the view that a party may not amend its application under section 459G to add further grounds. Nor is the argument strengthened by resort to O 71 r 36B of this court's rules." 12 In my view, if that decision expresses a view different to that contained in the line of cases which have followed Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 21 ACSR 581, I would decline to follow it. The line of cases that has followed Graywinter includes Meadowfield Pty Limited v Gold Coast Holdings Pty Limited [2001] WASCA 360; Energy Equity Corporation Limited v Sinedie Pty Limited (2001) 166 FLR 179; Financial Solutions Australasia Pty Limited v Predella Pty Limited (2002) 167 FLR 106; Process Machinery Australia Pty Limited v ACN 057260590 Pty Limited [2002] NSWSC 45 at [22]; POS Media Online Limited v B Family Pty Limited (2003) 21 ACLC 533, [2003] NSWSC 147; Scope Data Systems v BDO Nelson Parkhill (2003) 199 ALR 56, [2003] NSWSC 137; Chadah Pty Limited v Kubota Tractor Australia Pty Limited [2003] NSWSC 456; Tokich Holdings Pty Limited v Sheraton Constructions (NSW) Pty Limited (2004) 185 FLR 130, [2004] NSWSC 527 and Elm Financial Services Pty Limited v MacDougal [2004] NSWSC 560. I am not sure that Topfelt actually is inconsistent with the Graywinter line of cases, however. 13 While the Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 21 ACSR 581 principle has been formulated in terms of what affidavits must be filed by what time concerning an application to set aside a statutory demand, it has an effect on the amendments which may be made to an application to set aside a statutory demand. If there cannot be an evidentiary basis for a submission that the statutory demand should be set aside on some particular ground because that ground was not one which has been fairly notified by the affidavit in support, there is simply no point in allowing an amendment to an originating process to articulate that ground. 14 For these reasons, I decline the application to allow the amended originating process. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.