Farewell to the 'Graywinter principle' in applications to set aside statutory demands

November 16, 2021 by JW in Commercial Court, Commercial Division, Corporations Act, Debt recovery, Genuine dispute, Payment Claims, Section 459G, Supreme Court of Victoria

What must an affividat in support of an application to set aside a statutory demand include? The Victorian Court of Appeal in Sceam Constructions Pty Ltd v Clyne [2021] VSCA 270 has recently clarified the language around the ‘supporting affidavit’ to be filed within 21 days, and provided helpful reminders of what they should contain.

Directors' duties under the Corporations Act

November 27, 2018 by JW in Civil Procedure, Civil litigation, Commercial Court, Corporations Act, County Court of Victoria, Supreme Court of Victoria

The recent case of United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2018] VSC 347 decided by Elliot J provides a good summary of the directors duties set out in the Corporations Act. Without discussing the facts or findings of this case, the summary of the duties is very useful.

Applications to set aside a statutory demand: can supplementary materials be filed after the 21-day affidavit?

July 05, 2018 by JW in Corporations Act, Commercial Court, Section 459G, Statutory Demands, Application to set aside, Genuine dispute, Some other reason

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.

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?

Oppression proceedings: key principles and procedures

June 19, 2018 by JW in Civil litigation, Corporations Act, Oppression proceedings, Section 232 Corps Act, Section 233 Corps Act, Section 461 Corps Act, Section 467 Corps Act, Oppression

The statutory remedy most often used by shareholders who feel they have been unfairly treated, prejudiced, discriminated against or oppressed, is the oppression remedy in Part 2F of the Corporations Act (“Act”). Any individual member (or members) can commence a proceeding against the directors of the company or the company itself.

Oppression proceedings: when will the court decline to wind-up a company?

June 17, 2018 by JW in Oppression proceedings, Section 461 Corps Act, Section 467 Corps Act, Section 232 Corps Act, Section 233 Corps Act, Corporations Act

In oppression proceedings, the Court is extremely reluctant to wind up an otherwise flourishing, solvent company on the ‘just and equitable’ basis pursuant to section 467(4) of the Corporations Act ("Act").

Can a statutory demand be served on an incorporated association?

November 17, 2017 by JW in Commercial Court, Corporations Act, Statutory Demands, Section 459G, Section 459H

Can a statutory demand pursuant to section 459E of the Corporations Act be served on an incorporated association registered under the Associations Incorporation Reform Act 2012 (Vic)?

Affidavits in support of statutory demands must include a "statement of belief that there is no genuine dispute"

June 22, 2016 by JW in home, Statutory Demands, Corporations Act

Statutory demands issued for a non-judgment debt must be accompanied by an affidavit which states, inter alia, the deponent’s belief that that there is no genuine dispute about the debt.

Setting aside a statutory demand: what must an applicant establish?

February 15, 2016 by JW in Commercial Court, Corporations Act

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.