In short, the answer is no. Section 459G of the Corporations Act requires an application to set aside a statutory demand to be supported by an affidavit within 21 days of service of the demand. Usually the facts for the setting aside application are known within the 21-day period.

But what should you do when there are unknown facts at the time of filing the application to set aside? For example, where there are inaccessible or unverifiable documents, or you are waiting on third parties to provide materials (eg accounting information), or further discovery is required?

Depending on the circumstances, there are two common courses:

First, another affidavit filed within 21-days may 'expand upon' evidence filed in the original supporting affidavit within 21-days, provided it does not contain new matters.
Second, after the 21-day period expires, a question may arise as to whether an 'adjournment to augment' to file a supplementary affidavit will be permitted. This was a key question in B.S.B Mining Pty Ltd v Ranger Resources Pty Ltd [2018] VSC 263.

Key principles from B.S.B Mining

Section 459G application supporting affidavit due in 21 days: As is well established, affidavits in support of applications to set aside pursuant to section 459G of the Corporations Act on the basis of a ‘genuine dispute’ must depose to all relevant facts within 21-days of service of the demand.

Proposed pleadings: If you anticipate filing a defence (or other pleading) in a matter where the same issues are in dispute (ie a guarantee proceeding related to the subject loaning dispute) after the 21-day period, consider including the key facts or arguments regarding the proposed pleading within the 21-day affidavit if they demonstrate a ‘genuine dispute.’

Unknown facts at time of application: If there are facts which were unknown at the time of the s459G application:

The Court does not have a discretion to grant adjournments to permit the filing of further affidavits (at [42]). The High Court is clear on this rule: Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corp Ltd (2008) 232 CLR 314.
However the 21-day affidavit may be sufficient to permit the augmenting of material in further affidavits if unknown facts relevant to proving the genuine dispute are unable to be accessed, or unable to be verified, or some further discovery is required at the time of filing the s459G application (read [39] – [41] of BSB closely).
The material facts on which the applicant intends to rely to show a genuine dispute of the nature identified should be sufficiently identified, even if ‘less than ideally’. The key is that the 21-day affidavit must 'support' the application with evidence of an arguable dispute.
This principle is consistent with the Court of Appeal’s decision in Imagebuild where materials which expand on the original 21-day affidavit may be permitted, within the 21-day period: see my post here.
Merely explaining delay does not support the application. As per [21]-[25] of Imagebuild, another affidavit within 21-days which explains any delay may be permissible where "Such an affidavit might verify, on the basis of instructions or otherwise, the contents of the affidavit which is proposed to be sworn".

Separate proceeding to enforce guarantee permissible: Where a statutory demand is filed to recover a debt under a loan agreement default, it is permissible (ie not an abuse of process) to file a separate proceeding to enforce a personal guarantee pursuant to the loan agreement.

Facts

Ranger Resources Pty Ltd (“Ranger”, the defendant lender and creditor) issued a statutory demand for $250,000.00 dated 28 February 2018. The debt was based on the unpaid balance of a loan (“Loan”).

B.S.B Mining Pty Ltd (“BSB”, the plaintiff borrower and debtor) applied to set it aside pursuant to s 459G of the Corporations Act (“Act”) on the basis of ‘some other reason’ pursuant to section 459J(1)(b) of the Act. The 'other reason' was a parallel proceeding as detailed below.

The application was supported by an affidavit filed within 21 days seeking to set aside the demand. 'Genuine dispute' was not raised in the application. It was sought to be set aside for 'some other reason', being that "the creditor is seeking to have the same dispute resolved in two separate proceedings."

Separate proceeding to enforce guarantee

Before serving its demand, Ranger had filed another proceeding in Queensland against the director of BSB, Mr Brunner, seeking to enforce the personal guarantee in the Loan. BSB was not a party to the Queensland proceeding. BSB objected: the issue was being litigated in duplicate in a 'parallel proceeding'.

Regarding the Queensland proceeding, As J Randall determined it was a necessary proceeding to enforce the personal guarantee. BSB was not a party. Therefore service of the statutory demand in Victoria after filing the Queensland proceeding was not an abuse of process.

The Court held that Ranger (the creditor) had not abandoned its opportunity to obtain the presumption of insolvency arising from the statutory demand process. The Court held at [20](f):

The creditors’ conduct in pursuing a remedy against the guarantee and seeking to obtain the presumption that the plaintiff is insolvent cannot be described as unreasonable, an abuse of process or as giving rise to a substantial injustice.

Defence to guarantee proceeding – sufficient to establish ‘genuine dispute’?

During the hearing of the s459G application in the Supreme Court of Victoria, Brunner’s defence to the Queensland proceeding was produced. In the defence, Brunner didn’t dispute the loan agreement or guarantee.

The Court decided at [35] that even if the defence could be relied on to establish a ‘reasonably available inference’, it was produced to the court out of time: more than 21 days after the service of the demand. It was insufficient to demonstrate a ‘genuine dispute’ about the debt in the demand.

A question arose as to whether an ‘adjournment to augment’ was possible to establish that the 21-day affidavit was a sufficient delineation of the issue.

Adjournment to augment refused

BSB sought an adjournment to augment its application to set aside with a supplementary affidavit. It submitted that Brunner’s defence to the Queensland proceeding was not known to it at the time of the application to set aside.

The court refused the application to adjourn at [47] to [49] because:

All the facts and matters relied upon were known to the deponent (Brunner) at the time of the s459G application, even if his defence had not yet been filed;
Mr Brunner could have set out the foreshadowed facts or arguments in his defence, without having filed it yet;
The provision of instructions to lawyers to file a defence cannot constitute a ‘genuine dispute’;
There was nothing additional to discover after 21 days: the material in the defence was known to Brunner;
Production of the defence to the Queensland proceeding to establish a ‘reasonably available inference’ was not sufficient to demonstrate a ‘genuine dispute’.

Supplementary affidavits generally

Supplementary affidavits which expand on the original 21-day affidavit but do not contain new matters are discussed in: Energy Equity Corp Ltd v Sinedie Pty Ltd (2001) 166 FLR 179; [2001] WASC 419; applied in Jian Xing Knitting Factory v SCASA Pty Ltd [2004] SASC 152 at [18] per Doyle CJ; and NA Investments Holdings Pty Limited v Perpetual Nominees Limited [2010] NSWCA 210 at [72] - [93].