Supreme Court New South Wales Medium Neutral Citation: Elefteria Properties Pty Limited v David Colin Rogers [2016] NSWSC 1059 Hearing dates: 18 July 2016 Date of orders: 03 August 2016 Decision date: 03 August 2016 Jurisdiction: Equity Before: Barrett AJA Decision: 1. Order that the statutory demand dated 16 February 2016 served on the plaintiff by the defendant be set aside. 2. Order that the defendant pay the plaintiff's costs of the proceedings. Catchwords: CORPORATIONS – winding up – statutory demand – application for order setting aside – whether genuine dispute about existence of debt – whether "some other reason" to set aside because purported Corporations Act s 459E(3) affidavit is not an affidavit – PROCEDURE – affidavits – where affidavit called for by s 459E(3) – identification of legislation governing making of such affidavit – where affidavit is in prescribed form but without any signature in "Before me" section – where evidence led as to circumstances of signing – that evidence shows no use of the Bible and no reference to God – whether the document is an affidavit. Legislation Cited: Corporations Act 2001 (Cth) Evidence Act 1995 (NSW) Judiciary Act 1903 (Cth) Oaths Act 1900 (NSW) Oaths Regulation 2011 (NSW) Supreme Court (Corporations) Rules 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Attorney-General v Bradlaugh (1885) 14 QBD 667 Bobolas v Waverley Council [2016] NSWCA 139 Carb Royale Pty Ltd v Tonkin [2000] VSC 482; 35 ACSR 652 Curry v The King [1913] SCR 532 Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299; 217 FLR 366 Frayson Pty Ltd v Stirfry Enterprises Pty Ltd [2008] WASC 301; 223 FLR 342 Kezarne Pty Ltd v Sydney Asbestos Removal Services Pty Ltd (1998) 29 ACSR 11 Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262 Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd [2015] VSCA 330 Micar Group Pty Ltd v Insul-Trade LLC [2010] NSWSC 1391; 244 FLR 403 R v Chapman [1980] Crim LR 42 R v Mokbel [2012] VSC 86; 35 VR 156 Re Killard Excavation Pty Limited [2015] NSWSC 280 Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681; 76 FCR 452 Category: Principal judgment Parties: Plaintiff - Elefteria Properties Pty Limited Defendant - David Colin Rogers Representation: Counsel: Plaintiff - Mr DA Allen Defendant – Mr RD Glasson Solicitors: Plaintiff - Catalyst Legal Defendant - Laycock Burke Castaldi Lawyers File Number(s): 2016/68043 Publication restriction: Nil Judgment 1. BARRETT AJA: The plaintiff applies under s 459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on it by the defendant, David Colin Rogers. 2. The demand refers to a debt of $150,000 said to be owing by the plaintiff to Mr Rogers "pursuant to Loan Agreement dated 21 June 2013, which was due and payable on 8 August 2013" and to interest of $35,000 on that sum "pursuant to" that loan agreement, making a total of $185,000. 3. The plaintiff identifies two grounds on which it claims to be entitled to an order that the statutory demand be set aside. The first is that provided for by s 459H(1)(a), that is, that there is a genuine dispute about the existence of the debt. The second is advanced under s 459J(1)(b) and alleges failure to comply with an important statutory requirement, that is, the requirement under s 459E(3) that the statutory demand be served together with an affidavit conforming to the specifications there set out. The contention of the plaintiff is that, while a document dated 16 February 2016 headed "Affidavit Accompanying Statutory Demand" accompanied the statutory demand, that document is not in truth an affidavit. 4. I deal first with the contention that there is a genuine dispute about the existence of the debt of $185,000 described in the statutory demand. 5. In evidence is a copy of the agreement of 21 June 2013 referred to in the demand. There are five parties to the agreement: Mr Rogers (designated "lender"), the plaintiff (designated "borrower") and Mr Lemuel Page, Mr Jacob Murphy and Glebe Property Enterprises Pty Ltd (each designated a "guarantor"). The agreement provides for a loan by Mr Rogers to the plaintiff and interest thereon but (curiously, in light of the description of certain of the parties) does not include any words of guarantee. 6. Purported execution of the loan agreement by the plaintiff consists of the typewritten name of the plaintiff, followed by the signature of Mr Page, followed by the typewritten words "Director of Elefteria Properties Pty Ltd". Clearly enough, the purported execution is by the plaintiff by or through the act of a single director. It is not disputed that, at the relevant time, the plaintiff had two directors, being Mr Page and his estranged wife, Fiona Page. 7. Mr Page has given evidence of a meeting in late May or June 2013 attended by Mr Rogers, Mr Murphy and himself. Mr Page said that it was Mr Murphy who needed loan finance from Mr Rogers and that the plaintiff had been, as it were, provided as a vehicle through which funds could be channelled to Mr Murphy. Mr Page also deposed to a subsequent meeting attended by the same three persons at which a form of loan agreement prepared by Mr Rogers was tabled. In the course of that subsequent meeting, he says, he told Mr Rogers that he could not bind the plaintiff without the agreement of Mrs Page, to which Mr Rogers replied: "OK, I've left a space for Fiona to sign, how about you sign personally, Jacob [Mr Murphy] and his company can sign, you sign beside Elefteria Properties, and if Fiona agrees, she can also sign, if not, then it's not covered." 1. Mr Page also deposed that he said to Mr Rogers when signing against the plaintiff's name, "I sign here so there is room for Fiona", to which Mr Rogers gave an affirmative answer. Mr Rogers then wrote out a cheque for $150,000 and, at Mr Page's request, made it payable to Elefteria Pty Ltd, as distinct from the plaintiff (Elefteria Properties Pty Ltd). 2. Important elements of this evidence are challenged. Mr Rogers gave evidence that Mr Page did not say words to the effect that Mrs Page was a director of the plaintiff or that he needed her to agree to the loan or that he would ask her to sign. In relation to the second meeting, Mr Rogers denies that Mr Murphy was present. He further says that he did not say that he had left a space for a second signature, also that Mr Page did not say that he would sign in a particular place so as to leave a space for Mrs Page to sign. Mr Rogers accepts that he drew a cheque for $150,000 in favour of Elefteria Pty Ltd as requested by Mr Page. 3. Mr Murphy deposed to hearing a conversation between Mr Page and Mr Rogers at the time the loan agreement was signed. According to him, Mr Page said that he could sign the agreement but that it would not have any effect unless Mrs Page also signed as he did not "have authority"; to which Mr Rogers replied that Mr Page should just sign and "we can worry about Fiona later". Mr Page then said: "Okay, but I doubt Fiona will sign it." 1. The position the plaintiff takes is that execution and delivery of the agreement by means of the signature of Mr Page alone was, in effect, some kind of conditional execution such that the plaintiff would not be bound unless and until Mrs Page also signed. That, coupled with the fact that the plaintiff never received the loan proceeds, is seen by the plaintiff as sufficient to warrant a finding that there is a genuine dispute about the existence of the debt said to be due, owing and payable by the plaintiff as described in the statutory demand. 2. Counsel for Mr Rogers maintains that, having regard to certain matters not so far mentioned, the evidence of Mr Page and Mr Murphy about what was said regarding later signing by Mrs Page must be dismissed as recent invention entirely devoid of plausibility and that there is not in truth any genuine dispute. 3. First, it is noted that the form of agreement, as drafted, contemplated execution by "Director of Elefteria Properties Pty Ltd", with "Director" in the singular – a form that would not have been employed had Mr Rogers been told that it was necessary for two directors to sign and that there should be provision for Mrs Page to sign at a later time. 4. Second, reference is made to evidence of Ms Hutchins who witnessed all signatures on the loan agreement. She deposed that, on the morning of 21 June 2013, she was invited to Mr Rogers' office where she found only Mr Rogers and Mr Page (whom she knew). At Mr Rogers' request, she watched Mr Page sign the agreement in two places and added her own signature as witness to his signing. On the afternoon of the same day, she was again called to Mr Rogers' office, introduced to Mr Murphy (whom she did not know), watched him sign the agreement in two places and added her signature as witness. Ms Hutchins' affidavit makes no reference to Mr Page being present on the second occasion. This evidence, Mr Rogers says, makes entirely implausible the evidence of both Mr Page and Mr Murphy about the supposed conversation concerning Mrs Page in which all of Mr Rogers, Mr Page and Mr Murphy participated at the time of signing of the agreement. 5. Third, Mr Rogers refers to text messages between himself and Mr Page in May and June 2015, including the following from Mr Rogers to Mr Page: "Hi Lem, it's now nearly 4 weeks since we met and you apologised for how things turned out previously and you promised to pay me some money you owed that afternoon with the balance paid up over a short period of time. We shook hands and agreed to put the [balance illegible]". 1. Mr Page's replies to this and similar messages from Mr Rogers were unresponsive (for example, "Still in Sydney will call you at 3" and "I will call you soon"). Those replies contained no indication whatsoever that, on Mr Page's view of matters, the plaintiff was not indebted to Mr Rogers. 2. Fourth, counsel for Mr Rogers pointed to a statement in a document prepared early on the morning of the hearing by counsel for the plaintiff setting out objections to the affidavits proposed to be relied on by Mr Rogers. The statement related to paragraph 6 of a particular affidavit and was as follows: "Paragraph 6 is irrelevant, there being no dispute that Mr Page is liable to pay the debt." 1. This, it was submitted, constituted an admission by the plaintiff that Mr Page was liable to Mr Rogers as a guarantor and therefore, by necessary implication, that the plaintiff was liable to Mr Rogers as principal debtor. 2. None of the four matters thus relied on by Mr Rogers warrants any finding that the evidence of Mr Page and Mr Murphy must be, as it were, rejected out of hand as entirely implausible recent invention. As to the fourth matter, the statement in the list of objections about Mr Page and his liability was made in a context and circumstances which make it virtually devoid of weight as regards liability of the plaintiff. I decline to view it as a meaningful admission by the plaintiff. The first, second and third matters, by contrast, do deserve attention. But, taken individually or collectively, they consolidate rather than dissipate the strong impression that important matters of fact need to be resolved before it can be said whether the debt the subject of the statutory demand is owing, due and payable by the plaintiff to Mr Rogers. 3. The law as to the approach the court should take to the question of "genuine dispute" for the purposes of s 459H(1)(a) is well settled. Relevant principles were summarised by the Court of Appeal of Victoria in Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd [2015] VSCA 330 as follows (at [47]-[50], footnotes omitted): "The terms of s 459H of the Corporations Act and the authorities make clear that, on an application to set aside a statutory demand, the applicant is required only to establish a genuine dispute or offsetting claim. The applicant is required to evidence the assertions relevant to the alleged dispute or offsetting claim only to the extent necessary for that primary task. It is not necessary for the applicant to advance a fully evidenced claim. Therefore, the task faced by an applicant is by no means at all a difficult or demanding one. In determining such an application, it is not necessary or appropriate for a court to engage in an in-depth examination or determination of the merits of the alleged dispute. This is because an application alleging a genuine dispute or offsetting claim is akin to one for an interlocutory injunction and requires the applicant to establish that there is a 'plausible contention requiring investigation' of the existence of either a dispute as to the debt or an offsetting claim. It is therefore not helpful to perceive that one party is more likely than the other to succeed or that the eventual state of the account between the parties is more likely to be one result than another. Further, the determination of the 'ultimate question' of the existence of the debt at a substantive hearing should not be compromised. The court is required to determine whether the dispute or offsetting claim is 'genuine'. It has been said that the criterion of a 'genuine' dispute requires that the dispute be bona fide and truly exist in fact and that the grounds for alleging the existence of a dispute be real and not spurious, hypothetical, illusory or misconceived. It has also been observed that the dispute or offsetting claim should have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion. It must also have sufficient factual particularity to exclude the merely fanciful or futile. A rigorous curial approach is essential to the effective operation of the statutory scheme. The court is not required to accept uncritically every statement in an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be, as it may not have sufficient prima facie plausibility to merit further investigation as to its truth. The court is also not required to accept uncritically a patently feeble legal argument or an assertion of facts unsupported by evidence, although this should not be read as suggesting that the applicant must formally or comprehensively evidence the basis of its dispute or off-setting claim. Except in such extreme cases, the court should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on by the applicant to set aside a statutory demand." 1. When these principles are applied to the present case, the conclusion that there is a genuine dispute of the relevant kind becomes inescapable. There are fundamental differences between the evidence given by Mr Rogers and Ms Hutchins, on the one hand, and that given by Mr Page and Mr Murphy, on the other, as to what transpired and was said on relevant occasions. The court is not concerned to resolve such disputed matters of fact or to decide which of several conflicting versions of relevant events should be preferred. The fact that conflicting versions exist is itself sufficient to establish the existence of dispute; and the existence of dispute is the only matter to which s 459H(1)(a) pays attention. 2. In any event and leaving to one side the factual contests just mentioned, there is the point that the purported execution by the plaintiff was by means of the signature of one director only. That is not a mode of execution referred to in s 127(1) of the Corporations Act, with the result that it cannot ground any assumption under s 129(5) as to due execution. In addition and in the absence of evidence about the scope of powers customarily exercised by a single director of a company similar to the plaintiff, there is no scope for any assumption under s 129(2) as to whether Mr Page had authority to bind the plaintiff to this loan agreement by his signature alone. Nor does the constitution of the plaintiff suggest any basis on which a single director could properly have acted in the matter so as to bind the company. 3. Whichever way one looks at the situation, there is a genuine dispute as to the liability of the plaintiff under the agreement ostensibly executed by it by means of the signature of Mr Page alone. That dispute is one that can only be resolved by fully constituted debt recovery proceedings. 4. I pass now to a separate matter. It was submitted on behalf of Mr Rogers that, even if the agreement of 21 June 2013 never became binding on the plaintiff, it is necessarily to be inferred there was a loan of $150,000 by Mr Rogers to the plaintiff since it is not disputed that money was paid over. How, Mr Rogers asks rhetorically, can one explain such a payment (if not to the plaintiff itself, then to its associated entity Elefteria Pty Ltd) except as a loan? 5. The submission made on behalf of the plaintiff is that such an inference, even if available, does not assist Mr Rogers. The question in the s 459H(1)(a) aspect of these proceedings is as to the existence of the "debt to which the demand relates". The statutory demand refers unambiguously to a loan "pursuant to Loan Agreement dated 21 June 2013 which was due and payable on 8 August 2013" and to "interest on the principal, as agreed, pursuant to the terms of the Loan Agreement dated 21 June 2013". 6. The statutory demand is thus grounded obviously and solely on the particular written agreement of 21 June 2013. As counsel for the plaintiff submitted, it is irrelevant, for present purposes, to seek some basis outside the agreement on which indebtedness of the plaintiff to Mr Rogers might be found. 7. The conclusions stated to this point are sufficient to dispose of the present proceedings. The challenge under s 459H(1)(a) succeeds. There must be an order setting aside the statutory demand. 8. I proceed nevertheless to consider the second ground relied on by the plaintiff by reference to s 459J(1)(b) and the proposition that there was noncompliance with s 459E(3) because the purported affidavit of 16 February 2016 was not an affidavit at all. 9. The document is expressed to be an affidavit and begins: "I, David Colin Rogers of Suite 1, 86-88 Tudor Street, Hamilton, in the State of New South Wales, say on oath" 1. Five paragraphs of substantive content are then set out, followed by "Sworn at: Newcastle on 16 February 2016" 1. Next comes Mr Rogers' signature. 2. Immediately below that signature is the following (in terms obviously referable to Part 2 of the Oaths Regulation 2011 (NSW)): "I, Matthew Morrison a Justice of the Peace certify the following matters concerning the making of this affidavit by the deponent: 1 I saw the face of the person. 2 I have known the person for at least 12 months. Signature: (Sgd) M Morrison JP 154401 Date: 16.02.2016" 1. Having regard to s 459E(3)(b) of the Corporations Act and the definition of "rules" in s 9 (of which more will be said presently), the required form of affidavit is that prescribed by rule 5.2 of the Supreme Court (Corporations) Rules 1999 (NSW) (or the corresponding provision of the rules of any other "Court", in the sense dictated by s 58AA(1) of the Corporations Act). The prescribed form is Form 7. According to that form, the substantive clauses of an affidavit of the relevant kind must be followed by: "*Sworn/*affirmed at: [place of swearing or affirming] on [date] ………………………………………… Signature of deponent Before me: ………………………………………… Signature and designation of person before whom deponent swears or affirms affidavit * Omit if not applicable" 1. In the present case, the words "Before me" are lacking, as is any immediately following signature and designation of a person before whom the deponent swore the affidavit. 2. The plaintiff emphasises the importance attached to compliance with the s 459E(3) requirement that a person with first-hand knowledge of relevant matters not only verify that the debt the subject of the statutory demand is undisputed and due and payable by the company but also provide that verification in the solemn form that an affidavit entails. Reference is made, in that connection, to the decision of the Court of Appeal in Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262 that absence of such verification constitutes "some other reason why the demand should be set aside". 3. The plaintiff says that Mr Rogers has failed to provide verification in the solemn form required by s 459E(3) because the document signed by him that also carries Mr Morrison's signature is not an affidavit. Mr Rogers contends that, despite the omissions to which I have referred, the document is an affidavit. 4. Counsel on both sides referred to a number of cases on the question of what constitutes an "affidavit", particularly Kezarne Pty Ltd v Sydney Asbestos Removal Services Pty Ltd (1998) 29 ACSR 11, Carb Royale Pty Ltd v Tonkin [2000] VSC 482; 35 ACSR 652, Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299; 217 FLR 366, Micar Group Pty Ltd v Insul-Trade LLC [2010] NSWSC 1391; 244 FLR 403 and Re Killard Excavation Pty Limited [2015] NSWSC 280 (see also, most recently, Bobolas v Waverley Council [2016] NSWCA 139). 5. As these cases emphasise, an attribute that sets an affidavit apart from any other signed statement is that the deponent signs in the presence of a particular functionary and, upon inquiry made by that functionary, attests to the truth of the statement either by oath or by the kind of affirmation permitted by statute for persons who object to swearing an oath. I referred to these matters in some detail in Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd (above). 6. The requisite process is contemplated by the content of Form 7. In particular, in a case of oath as distinct from affirmation, it must be seen that the deponent has been put upon his or her oath by the relevant functionary and has then and there sworn to the truth of the content of the document. In addition, the functionary must, by means of his or her own signature, attest to due swearing by the deponent. 7. In this case, the content of the document itself indicates swearing of an oath by the deponent. The words "say on oath" appear immediately after his name and address and the words "Sworn at: Newcastle on 16 February 2016" appear immediately after the substantive content and before his signature. Missing are the words "Before me" and the functionary's signature where they should appear in accordance with Form 7. 8. There is, however, a clear indication within the document of the role Mr Morrison played in its creation. By the form of certification at the foot of the document, Mr Morrison stated two things "concerning the making of this affidavit by the deponent", namely, that he saw the deponent's face and had known him for at least 12 months. It may thus be safely inferred that, upon the "making of" the affidavit by Mr Rogers, he and Mr Morrison (someone who knew him) were present together. Otherwise Mr Morrison could not have seen Mr Rogers' face. This, coupled with Mr Morrison's status as a Justice of the Peace (and thus a person authorised to administer an oath) and the references earlier to Mr Rogers saying relevant things "on oath" and to the affidavit being "sworn" at Newcastle, means that, based solely on its content, the document should be viewed as an affidavit duly sworn, even though there is a deficiency of form. 9. Before the court, however, is affidavit evidence of Mr Morrison who deposed that, on 16 February 2016, Mr Rogers came to his office, placed on his desk the unsigned document headed "Affidavit Accompanying Statutory Demand" and said, "Matthew, are you able to witness an affidavit by me?" Mr Morrison then said to Mr Rogers, "Do you swear the contents of this affidavit are true and correct?" Mr Rogers replied, "I do so swear." Immediately thereafter, Mr Rogers signed the document and Mr Morrison completed details in the document, wrote his name and qualification and appended his own signature in the one place in which it appears. 10. This evidence was adduced by Mr Rogers with a view to making more secure the conclusion that the affidavit was sworn by him by means of an oath administered by Mr Morrison. As discussed in Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd (above) at [33]-[38], evidence of the circumstances surrounding the creation and signing of a document said to be an affidavit may be received in order to determine its true character. 11. Absent from Mr Morrison's description of the relevant event are any reference to Mr Rogers taking the Bible in his hand (or otherwise using the Bible) and any reference to either Mr Morrison or Mr Rogers speaking words referring to God or invocation of God's help. These are regular and standard features of oath-swearing. The question which then arises is whether the true effect of Mr Morrison's evidence is to call into question (rather than to consolidate or confirm) the conclusion I have said to be warranted by the content of the document itself. 12. Micar Group Pty Ltd v Insul-Trade LLC (above) concerned an affidavit called for by s 459G(3) of the Corporations Act in connection with commencement of proceedings in this court by way of application under s 459G. The particular document was regular and complete in form, but for omission of the signature of any oath-administering functionary. Pursuant to s 79 of the Judiciary Act 1903 (Cth), the question whether the document was an affidavit fell to be determined by reference to relevant New South Wales legislation, being the Evidence Act 1995 (NSW) and the Oaths Act 1900 (NSW). The facts, as found by White J, were that the deponent by whom the supposed affidavit was sworn signed the document in the presence of a solicitor, that the solicitor asked the deponent whether he swore the contents to be true and that the deponent said that they were. There was an express finding that the Bible was not used and that words referring to God were not spoken. In material respects, therefore, the facts of that case bear a strong resemblance to those of this case. 13. White J held that the document was an affidavit. His Honour's decision was based in part on s 24 of the Evidence Act (stating that it is not necessary that a religious text be used in taking an oath) and in part on s 11A(6) of the Oaths Act. It is convenient to set out s 11A of the latter Act in full: 11A Manner of taking oath (1) Any person taking any oath on the Bible or on the New Testament, or the Old Testament, for any purpose whatsoever, whether in judicial proceedings or otherwise, shall, if physically capable of doing so, hold a copy of the Bible or Testament in his or her hand, but it shall not be necessary for the person to kiss such copy by way of assent. (2) The officer administering the oath may repeat the appropriate form of adjuration, and the person taking the oath shall thereupon, while holding in his or her hand a copy of the Bible, New Testament, or Old Testament, indicate his or her assent to the oath so administered by uttering the words "So help me, God"; or (3) The person taking the oath may, while holding in his or her hand a copy of the Bible, New Testament, or Old Testament, repeat the words of the oath as prescribed or allowed by law. (4) In all judicial proceedings the officer administering the oath shall, unless the person about to take the oath voluntarily objects thereto, administer the oath in the form and manner set out in subsection (2); but no oath shall be deemed illegal or invalid by reason of any breach of the provisions of this section. (5) Provided that any witness in any judicial proceeding may swear with up-lifted hand in the following manner and form: The witness with uplifted hand says—"I swear by Almighty God as I shall answer to God at the Great Day of Judgment that I will speak the truth, the whole truth, and nothing but the truth." (6) Provided also that: (a) an oath may be administered and taken in any form and in any manner which would have been lawful if this section had not passed, (b) every oath shall be binding for all purposes for which it is administered and may be taken in any form and in any manner which the person taking the same declares to be binding, (c) where an oath has been administered and taken, the fact that the person taking the same had at the time no religious belief shall not for any purpose affect the legality or validity of the oath. 1. White J held that sub-sections (1) to (4) of s 11A did not compel use of the Bible and that s 24 of the Evidence Act made such use unnecessary. Then, concentrating on paragraph (b) of s 11A(6), White J said (at [37]-[38]: "It is, in any event, implicit in Mr Rosier's confirming that he swore the contents of the affidavit to be true and correct, and not merely stating that they were, that Mr Rosier was confirming the truth of the document by reference to God or a sacred being or object. (See the definition of "swear" in the Macquarie Dictionary.) He sufficiently declared his oath to be binding on him." 1. The affidavit with which White J was concerned was one specifically required by a provision of Commonwealth law (s 459G(3) of the Corporations Act) for the purposes of and in connection with court proceedings brought under Commonwealth law. In those proceedings, the Supreme Court of New South Wales exercised federal jurisdiction. Section 79 of the Judiciary Act therefore applied to make relevant laws of New South Wales applicable. As I have said, it was in that way that White J came to consider the provisions of the Evidence Act and the Oaths Act of this State. 2. In this case, the affidavit in question is an affidavit called for by a different provision of Commonwealth law, s 459E(3) of the Corporations Act. That provision in no way involves proceedings in any court or exercise of the jurisdiction of any court. That circumstance has two relevant consequences. First, s 79 of the Judiciary Act does not cause any State law provision to apply. Second, this State's Evidence Act is inapplicable because s 4 of that Act states that the Act applies to proceedings in courts of the State. 3. The way in which State or Territory law provisions concerning the creation of affidavits are made applicable to an affidavit of the kind called for by s 459E(3) was explained by the Full Federal Court in Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681; 76 FCR 452. As noted above, s 459E(3)(b) requires that the affidavit be one that "complies with the rules". The "rules", according to s 9, are the rules of the Federal Court or the Supreme Court of a State or Territory "as the case requires". The effect of the definition of "rules" and, in particular, the four concluding words, was considered in the case just mentioned. In the context of submissions that the concluding words directed attention to some territorial factor (such as the place of service of the demand or the location of the registered office of the company served), Northrop, Merkel and Goldberg JJ said (at FCR 461): "In our view the expression 'as the case requires' in s 9, when applied to the relevant rules in s 459E(3), enables the creditor to swear its accompanying affidavit in the form provided by the rules of any court which would have jurisdiction to order the winding‑up of the appellant or in which an application to set aside the demand could be brought. In the present case this includes the Federal Court, the Supreme Court of New South Wales and the Supreme Court of Victoria." 1. And later: "Adoption of the rules of a court 'as the case requires' is apt to cover the rules of any court which has jurisdiction to hear and determine any application in relation to, or arising out of, the service of a statutory demand. The Supreme Court of Victoria is such a court. In the present case the application by the appellant to set aside the statutory demand was made in the Federal Court. It could just have easily have been made in the Supreme Court of Victoria or the Supreme Court of New South Wales. No reason of policy or principle requires that the rules of any one court, potentially having jurisdiction in a matter arising out of the service of a statutory demand, be preferred over the rules of another court having the same jurisdiction. In our view as the accompanying affidavit complied with the Rules of the Supreme Court of Victoria there was no defect in relation to the form of that affidavit." 1. It follows that if, in the present case, the affidavit complies with the rules of court applicable to the Supreme Court of New South Wales, it will properly be regarded as an affidavit that complies with rules that are within the s 9 definition of "rules". 2. According to their terms, the rules of a court apply, naturally enough, to proceedings in that court. The s 9 definition of "rules" was necessarily formulated with that in mind, so that when s 459E(3)(b) speaks of an affidavit created in compliance with rules of court for use in a non-curial context, it indicates by necessary intendment that rules applicable in terms to court proceedings are to be applied in like manner to the non-curial context. 3. Rule 1.3(1) of the Supreme Court (Corporations) Rules 1999 (NSW) makes those rules applicable to "a proceeding in the Court under the Corporations Act". Rule 1.3(2) then says that "the other rules of the Court" apply to such a proceeding except to the extent of any inconsistency. The "other rules of the Court" thus referred to include the Uniform Civil Procedure Rules 2005 (NSW): see rule 1.5(1) thereof and the reference to the Supreme Court in Column 1 of Schedule 1. The Supreme Court (Corporations) Rules say nothing about the manner of creation of affidavits. The Uniform Civil Procedure Rules make no comprehensive provision on the subject of affidavits generally but do, to my mind, make it clear that specifications concerning affidavits in the Oaths Act are applicable. Thus, for example, rule 3.5(7), dealing with an affidavit uploaded and submitted for filing by the Online Registry, requires that, if the affidavit is executed in New South Wales, it include a duly completed certificate under the Oaths Act, while rule 35.7 says that an affidavit made by a blind or illiterate person may not be used unless one of two conditions is satisfied, the first being that the affidavit bears a certificate referred to in s 27A of the Oaths Act. There is thus within the relevant rules of court a clearly manifested intention that affidavits created in New South Wales will be created in conformity with the Oaths Act. 4. The conclusion just stated, although reached in a somewhat different way, is, I think, compatible with that of Master Sanderson in Frayson Pty Ltd v Stirfry Enterprises Pty Ltd [2008] WASC 301; 223 FLR 342. 5. The provisions to be applied in deciding whether the document here in issue is an affidavit are accordingly those considered by White J in Micar Group Pty Ltd v Insul-Trade LLC (above) – minus, however, the Evidence Act provision. That being so, the issue is whether s 11A(6) of the Oaths Act alone (and without, as it were, assistance from s 24 of the Evidence Act) supports the conclusion that the events deposed to by Mr Morrison constituted the swearing of an oath by Mr Rogers. I concentrate on s 11A(6) because ss 11A(2), 11A(3) and 11A(5) refer to matters which are not compulsory, s 11A(1) is relevant only where the Bible is used (which is not the case here) and s 11A(4), as its terms show, does not go to the validity of an oath. 6. Within s 11A(6), it is s 11A(6)(b) that is of particular relevance. Section 11A(6)(b) makes it clear that an oath that takes a particular form or is taken in a particular manner is "binding for all purposes for which it is administered" if the person taking the oath "declares" that manner and form "to be binding". This is reflective of the common law position (preserved, incidentally, by s 11A(6)(a)) which was described by Whelan J in R v Mokbel [2012] VSC 86; 35 VR 156 (at [104]) in this way: "The minimum required for a valid oath at common law was some form of words, spoken or assented to by the deponent, whereby he or she swore, or in some manner called upon a higher power, so as to bind his or her conscience" [emphasis added]. 1. Likewise, in R v Chapman [1980] Crim LR 42, it was said by the English Court of Appeal that the efficacy of an oath must depend on its being taken in a way binding and intended to be binding upon the conscience of the intended witness. And in Attorney-General v Bradlaugh (1885) 14 QBD 667, Brett MR said (at 701): "[I]f a person who could take an oath ... nevertheless took it in a manner which disregarded the due solemnities of the mode of taking an oath which are appointed in [a relevant statute], or if he took the oath, and did not, within the meaning of [the statute] subscribe the oath ... on reflection, I am of opinion that he would be liable to the penalty." 1. Of particular pertinence is the following passage in the judgment of Anglin J of the Supreme Court of Canada in Curry v The King [1913] SCR 532 at 540: "I am of the opinion that by taking the oath in the form in which it was tendered to him, making no protest against it but proceeding to give his evidence with the knowledge that it would be accepted and acted upon as testimony given under oath, he sufficiently assented to the oath being administered in the form in which it was." 1. The core message derived from the cases is that, regardless altogether of ceremonies and formulas involving the use of a religious book or the invocation of a deity, an oath is taken to have been duly administered and sworn if the person concerned shows, by his or her contemporaneous conduct, an intention of swearing an oath and of binding his or her conscience accordingly. 2. In the present case, Mr Rogers "swore". The operative words in the question put to him by Mr Morrison were, "Do you swear?" Mr Rogers' reply was, "I do so swear". Swearing is a process applicable to oaths – hence the affidavit form formerly in use which began: "I, [name] of [address], being duly sworn make oath and say as follows". "Swear" and "oath" connote conscientious stating of the truth. Both terms were used in the document that Mr Rogers signed after answering Mr Morrison's question. The minimum common law requirement, according to the first of the alternatives identified by Whelan J in R v Mokbel (above) – "some form of words, spoken or assented to by the deponent, whereby he or she swore" – was satisfied. Mr Rogers produced to Mr Morrison a document containing the words "oath" and "sworn" and said to Mr Morrison that the document was an "affidavit", at the same time indicating that he wished to sign it. His stated intention was to make an "affidavit". He indicated by his answer to Mr Morrison's question that he assented to the administering of an oath in the form that Mr Morrison tendered to him by means of the word "swear" and that he intended to be bound accordingly. I would respectfully adopt, as equally applicable to this case, the observations of White J in Micar Group Pty Ltd v Insul-Trade LLC (at [37]-[38]) set out at [47] above. Those observations correspond closely with those in the Canadian case to which I have referred at [59] above. 3. It follows that the conclusion emerging on the face of the document itself, as stated at [41] above, is not undermined but is in fact reinforced by Mr Morrison's evidence. 4. In the result, therefore, the document in question is, as required by s 459E(3), an "affidavit" and the s 459J(1)(b) challenge fails. However, the conclusion on the "genuine dispute" aspect causes the orders of the court to be as follows: 1 Order that the statutory demand dated 16 February 2016 served on the plaintiff by the defendant be set aside. 2 Order that the defendant pay the plaintiff's costs of the proceedings. ********** 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. Decision last updated: 03 August 2016