Australia and New Zealand Banking Group Limited v Thomson [2022] QSC 18 [2022] 9 QLR

SUPREME COURT OF QUEENSLAND CITATION: Australia and New Zealand Banking Group Limited v Thomson [2022] QSC 18 PARTIES: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 (applicant) v CAROLYN MARY THOMSON (respondent) FILE NO/S: BS No 8958 of 2019 DIVISION: Trial Division PROCEEDING: Originating application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 24 February 2022 DELIVERED AT: Brisbane HEARING DATE: 7 February 2022 JUDGE: Williams J ORDER: 1. A copy of the respondent’s email dated 14 February 2022 is marked for identification “A”. 2. The respondent’s application that I recuse myself on the basis of actual or apprehended bias is refused. 3. Pursuant to r 436(2) of the Uniform Civil Procedure Rules 1999 (Qld), the applicant is granted leave to rely on the Smith affidavit in evidence in support of the application. 4. Pursuant to s 459H of the Corporations Act 2001 (Cth), the statutory demand dated 1 August 2019 served on the applicant by the respondent be set aside. I will hear from the parties in respect of costs. CATCHWORDS: CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – where respondent a customer of applicant – where negotiations between the parties had occurred over a number of years – where respondent served a statutory demand pursuant to section 459E of the Corporations Act 2001 (Cth) on the applicant for various sums totalling over two million dollars – where applicant filed application to set aside statutory demand in August 2019 – where application adjourned pending -- 1 of 81 -- 2 outcome of complaint about the applicant made by respondent to financial industry ombudsman the Australian Financial Complaints Authority – where respondent disputes solvency of the applicant – whether typographic error on the application affects its validity – whether a genuine dispute between the parties exists – whether statutory demand should be set aside pursuant to section 459H of the Corporations Act 2001 (Cth) – whether statutory demand should be set aside pursuant to section 459J(1)(b) of the Corporations Act 2001 (Cth) PROCEDURE – CIVIL PROCEEDINGS – PROCEDURAL ASPECTS OF EVIDENCE – AFFIDAVITS – where supporting affidavit required by section 459G(3)(b) of the Corporations Act 2001 (Cth) – whether the affidavits were supporting affidavits within section 459G(3)(b) of the Corporations Act 2001 (Cth) – where one supporting affidavit was not in the approved Queensland form – where one supporting affidavit had additional exhibit not referred to in the body of the affidavit nor contained within the certificate of exhibits – where the supporting affidavits did not contain the proceeding number – whether alleged defects in the affidavits were irregularities of form – whether alleged defects in the affidavits give rise to a jurisdictional issue under s 459G of the Corporations Act 2001 (Cth) COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – GENERALLY– where respondent to application self- represented – where judgment reserved after hearing application to set aside statutory demand – where respondent sent an email to her Honour’s chambers after the hearing of the matter making an informal application for her Honour to recuse herself on both grounds of apprehended bias and actual bias – whether recusal appropriate on grounds of apprehended bias – whether recusal appropriate on grounds of actual bias Corporations Act 2001 (Cth), ss 459G, 459H, 459J Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 43 Oaths and Affirmations Act 2018 (Vic), ss 23, 25, 26, 27, 29 Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 (Vic) Uniform Civil Procedure Rules 1999 (Qld), ss 371, 435, 436(2), 964, Sch 1A Australian Communication Exchange Ltd v Pilot Partners Pty Ltd [2017] QSC 176 Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 181 Chelring Pty Ltd v Coombs [2000] WASC 60 Craneford Nominees Pty Ltd v VGC Co-Operative Ltd (2012) 262 FLR 283 -- 2 of 81 -- 3 Financial Solutions Australasia Pty Ltd v Predella Pty Ltd (2002) 26 WAR 305; [2002] WASCA 51 Grocon Constructors (Qld) Pty Ltd v Dexus Funds Management Limited as Trustee for the Dexus 480Q Trust (No 2) [2019] FCA 1117 Lifese Pty Limited v Lee Crane Hire Pty Limited [2012] FCA 302 LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134 Paperlinx Ltd v Skidmore (2004) 51 ACSR 614 Parbery v QNI Metals Pty Ltd [2018] QSC 213 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Reschke Pty Ltd v DiGiorgio Family Wines Pty Ltd [2017] SASC Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338 Sceam Constructions Pty Ltd v Clyne [2021] VSCA 270 SGR Pastoral Pty Ltd v Christensen (2019) 2 Qd R 334; [2019] QSC 229 Syncordia Group Pty Ltd v Nexia Melbourne Pty Ltd [2021] VSC 732 Tatlers.com.au Pty Ltd v Davis (2006) 203 FLR 473; [2006] NSWSC 1055 Thomson v Tremco Pty Ltd (2019) 136 ACSR 1; [2019] QCA 018 Tremco Pty Ltd v Thomson [2018] QDC 101 Whisson and Another v Eastland Technology Australia Limited [2004] WASCA 272 COUNSEL: E J Goodwin for the applicant Self-represented respondent SOLICITORS: Herbert Smith Freehills Self-represented respondent [1] This is an originating application by the applicant, the Australia and New Zealand Banking Group Limited (the ANZ), pursuant to ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) (the Corporations Act) by which the ANZ seeks orders to set aside the statutory demand dated 1 August 2019 for the amount of $2,832,378.00. [2] The application to set aside the statutory demand is based upon two grounds. First, the existence of a genuine dispute about the alleged debt and, second, for “some other reason”. Background [3] The respondent served the statutory demand for the amount of $2,832,378.00 on the ANZ on 5 or 6 August 2019. A copy of the statutory demand is exhibited to the first affidavit of Inge Kindermann sworn 21 August 2019 and filed 22 August 2019 (first Kindermann affidavit) at pages 2 - 6 of the exhibit. -- 3 of 81 -- 4 [4] The statutory demand claims the amount of $2,832,378.00 as being payable by the ANZ to the respondent pursuant to an alleged agreement: (a) on 22 March 2018 to pay the three creditors of the respondent, namely Tremco Pty Ltd, PWA Financial Group Pty Ltd and Thomson Lawyers the total amount of $1,052,000.00; and (b) on 12 October 2018 to pay the respondent a further $1,780,378.00 “cash payment” in respect of a longstanding dispute between the ANZ and the respondent. [5] On or about 18 August 2019, the respondent filed a complaint with the Australian Financial Complaints Authority (AFCA) against the ANZ. AFCA is a financial industry ombudsman service created pursuant to Commonwealth legislation.1 There was overlap in the factual matters in the AFCA complaint, and subsequent complaints, and the factual matters forming the basis of the statutory demand. [6] On 22 August 2019, the ANZ filed and served the originating application to set aside the statutory demand, together with the first Kindermann affidavit and an affidavit of Peter Smith sworn 21 August 2019 (Smith affidavit). [7] The originating application in this Court was adjourned until the complaints process before AFCA was determined. This was in accordance with AFCA requirements. The parties consented to a number of adjournments of the originating application to facilitate this. [8] On 21 September 2021, AFCA issued its determination. The originating application is now proceeding before this Court. Application to set aside four subpoenas [9] The respondent served four subpoenas to give evidence on the following individuals: (a) David Gonski, a former chairman of the board of directors of the ANZ; (b) Shayne Elliott, the current chief executive officer and a director of the ANZ; (c) Michelle Jablko, a former chief financial officer of the ANZ; and (d) Joan McKinstray, a current senior executive of the ANZ. [10] The ANZ brought an application to set aside the subpoenas filed on 24 January 2022 and returnable before the Court on Friday 4 February 2022. [11] Justice Boddice heard the application to set aside the subpoenas on 4 February 2022 and made the following orders: 1. By consent, the subpoenas for Michelle Jablko and Joan McKinstray are set aside. 2. The subpoena for David Gonski is set aside. 1 Treasury Laws Amendment (Putting Consumers First – Establishment of the Australian Financial Complaints Authority) Act 2018 (Cth). -- 4 of 81 -- 5 3. The application to set aside the subpoena for Shayne Elliott is adjourned until 7 February 2022 before Williams J. 4. Costs reserved for the three determined applications. [12] The application in respect of the subpoena served on Shayne Elliott proceeded before me on Monday 7 February 2022. [13] Following hearing submissions from both parties, ex tempore reasons were delivered and I ordered that the subpoena addressed to Shayne Elliott be set aside. Application to set aside statutory demand [14] Following the ruling, the substantive application to set aside the statutory demand then proceeded before me. [15] At the hearing before Boddice J on 4 February 2022, the respondent had provided written submissions dated 3 February 2022 which identified some “preliminary issues”. [16] These submissions identified the following questions that the respondent identified in this category of “preliminary issues”: “1. Whether the Applicant has a complying application pursuant to s 459G(2) of the [Corporations Act] that was made within time due to formal defects in its supporting affidavits, where those defects if the Court finds they exist, were not remedied within the 21 day statutory period for compliance with a creditor’s statutory demand. 2. The Applicant’s application to have the creditors statutory demand set aside dated 21 August 2019 at paragraph 2 asks the Court to make a further and/or alternative order pursuant to s 459J(b) of the Corporations Act, where there is no s 459J(b) of the Corporations Act. The questions the Court needs to answer are: a Should this be a preliminary matter the Court needs to consider prior to the application to set aside the subpoenas; or b Should it be heard at the hearing of the applicant’s originating application? c Should this have been rectified within the 21 day statutory period for the applicant’s originating application to be on foot? d Does the Applicant have an application on foot to set aside the creditor’s statutory demand? 3. Whether the Court needs to determine the issue of formal defects in the Applicant’s originating application prior to proceeding with the hearing regarding the setting aside of subpoenas. Or -- 5 of 81 -- 6 whether that should be heard at the hearing of the originating application on 7 February 2022. 4. The questions that need to be answered by the Court regarding these formal defects are: a. Did Ms Kindermann require the leave of the Court to rely on her affidavit despite the formal defects in it prior to the expiration of the 21 day statutory period for compliance with the creditor’s statutory demand; and b. If so, was the affidavit required to have the memorandum of the Court affects to the face of it when it was served on me within the statutory period of 21 days for compliance? c. If leave was not granted for Ms Kindermann’s prior to the expiration of the 21 day period for compliance is this fatal to the client’s originating application? d. As Mr Smith’s affidavit served […] in support of the Applicant’s originating application includes an additional annexure not referred to in the body of the affidavit or the certificate of exhibits does that mean that the Applicant’s originating application is not on foot because of?” [17] After posing these questions, the respondent then made substantive written submissions in relation to these alleged defects and the consequences of the alleged defects. The submissions also address the alleged defect of the copy of the supporting affidavits not having the matter number endorsed on them. [18] The respondent relies on an affidavit sworn 13 January 2022 and exhibits consisting of 1006 pages, over four volumes. The body of the affidavit of the respondent consists of 70 pages. Included in the exhibit is correspondence between the respondent and the ANZ solicitors where the alleged defects in the affidavit material were first raised. [19] At the hearing on 7 February 2022 the applicant sought leave to read and file written submissions which addressed the alleged defects identified by the respondent. Further, Counsel on behalf of the applicant made oral submissions supplementing these written submissions. [20] The written submissions also attach an extract from the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Victorian Supreme Court Rules) and the index of forms to the Victorian Supreme Court Rules. [21] The respondent was provided with these submissions in the morning prior to the hearing on 7 February 2022. [22] Following the oral submissions on behalf of the applicant on 7 February 2022, the respondent indicated that she was not in a position to respond to them. At approximately 12.30 pm on 7 February 2022, the hearing was adjourned until 2.30 pm to enable the respondent an opportunity to consider the further material and for the Court to deal with another matter that had been listed on that day. -- 6 of 81 -- 7 [23] On the resumption of the hearing at 2.30 pm on 7 February 2022, the respondent indicated that she was not in a position to make submissions in relation to the matters raised by the applicant in response to the alleged defects. [24] At this stage of the proceedings, the respondent sought an adjournment. The applicant opposed that adjournment. Following the giving of ex tempore reasons, I refused the application for an adjournment. [25] Following that ruling, the respondent did proceed to make some submissions in respect of the alleged defects, however she indicated that she was not in a position to address all matters raised by the applicant. [26] Both parties were given an opportunity to make submissions in respect of the alleged jurisdictional issues and alleged defects. Subsequently, the hearing proceeded to deal with the substantive issues on the application to set aside the statutory demand. This was on the basis that the decision of the Court would deal with the alleged jurisdictional issues prior to the consideration of the substantive application to set aside the statutory demand. [27] This was explained to the parties to be similar to when the Court considered an application for leave together with the substantive appeal. No objection was taken to proceeding on this basis. [28] At a later stage in submissions in respect of the substantive application, the respondent raised again that she considered that she had been unfairly denied the application for an adjournment to be able further address the submissions raised in respect of the alleged defects in the affidavit material and also raised the decision to set aside the subpoena. Subsequent informal application for recusal [29] At the conclusion of the hearing of the originating application on 7 February 2022 judgment was reserved. [30] On 8 February 2022 the respondent sent a lengthy email to my Associate which in effect contained further submissions. My Associate responded that it was not appropriate to send correspondence of this nature to Chambers and that the parties would be notified when judgment was to be delivered. [31] On Monday 14 February 2022 my Associate received a further lengthy email from the respondent making an “informal application” for me to recuse myself from the matter prior to handing down the decision that had been reserved. My Associate responded by email that the respondent’s email had been drawn to my attention. [32] A copy of the email from the respondent dated 14 February 2022 is marked for identification “A” and has been placed on the Court file. [33] The respondent’s email dated 14 February 2022 sets out in detail the concerns she is raising as the basis for her application. The respondent’s email states: “This is an application for Her Honour to recuse herself, and not force me as a self-represented litigant to make an application for Her -- 7 of 81 -- 8 Honour to be disqualified from handing down her decision in this matter. It is based on apprehended bias and actual bias.” [34] Whilst there is not a formal application before the Court for me to consider whether it is necessary for me to recuse myself, I consider that the respondent’s email has raised the issue and it is appropriate and necessary for me to deal with the issues raised without the need for a formal application. [35] The respondent further states: “My application for recusal is based on apprehended bias and/or actual bias as follows:- 1. The hearing of this application is a Public Interest matter for bank victims not only ANZ’s, but all other banks, together with the public, particularly where the Banking Royal Commission heard stories of the systemic breaking of the law by Banks and drew massive public attention. 2. The orders I request Her Honour make are :- a. That Her Honour be recused from further involvement in these proceedings; and b. That Her Honour is precluded from handing down any further decision in these proceedings until either this recusal application and/or an application for disqualification of Her Honour is determined; and c. The proceedings be transferred to another Judge for a rehearing de nuovo [sic] on the evidence already before the Court; and d. The matter be admitted to the Self-Represented Litigant Supervised Case List for further case management.” [36] The email identifies that the respondent relies on the statement of the legal principles as set out in Parbery v QNI Metals Pty Ltd [2018] QSC 213. [37] As to the particular matters relied upon by the respondent in respect of her application, these appear to be in the following categories: (a) The public were not admitted to a public hearing. (b) No disclosure prior to commencement of hearing. (c) Comments regarding the exhibit to the Smith affidavit. (d) The applicant’s solvency. (e) Setting aside of the subpoena addressed to Mr Shayne Elliott. (f) Failure to give the required assistance and/or consideration to a self-represented litigant. (g) Comments in respect of “other avenues” to pursue claimed debt. (h) Other background matters. -- 8 of 81 -- 9 [38] Before considering the issues raised, it is convenient to consider the relevant principles of law. [39] It is settled authority that the test to be applied in determining whether a judge should be disqualified for apprehended bias is the objective test of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.2 [40] Bond J (as his Honour then was) in this Court summarised the application of the test as follows: “[30] The application of the test requires two steps: (a) first, the identification of what it is said might lead the judge to decide the question otherwise than on its legal and factual merits; and (b) second, the articulation of the logical connection between that matter and the risk that the judge will decide the matter otherwise than on its legal and factual merits. [31] The application of the test uses the touchstone of the ‘fair- minded lay observer’ and that person’s reasonable apprehension. The law contemplates the following in the application of that test: (a) The fair-minded lay observer has attributed to him or her awareness of and a fair understanding of the nature of the decision, the context in which it was made, and the circumstances leading up to the decision.3 (b) The fair-minded lay observer has attributed to him or her knowledge that the judge is a professional lawyer, whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial, with the result that a conclusion that there is a reasonable apprehension that the judge might be biased should not be drawn lightly.4 The observer does not have attributed to him or her knowledge of the character or the ability of the particular judge concerned.5 (c) The fair-minded lay observer does not have attributed to him or her a detailed knowledge of the law, but the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial 2 Livesey v New South Wales Bar Association (1983) 151 CLR 288; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427. 3 Isbester v Knox City Council (2015) 255 CLR 135 at [23] per Kiefel, Bell, Keane and Nettle JJ. 4 Vakauta v Kelly (1988) 13 NSWLR 502 at 527-528 per McHugh JA and at 535 per Clarke JA. 5 Johnson v Johnson (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. -- 9 of 81 -- 10 practice, taking into account the exigencies of modern litigation.6 [32] What is required for justice to be seen to be done is that it must be apparent to the fair-minded lay observer that the judge will bring to the resolution of the issues an impartial and unprejudiced mind which will decide the issues according to their factual and legal merits. If such an observer might reasonably apprehend that the judge might not do that, then a case of apprehended bias is established. But if the possibility of such a reasonable apprehension does not exist, it will not suffice that there might be a reasonable apprehension that the judge will decide an issue or issues adversely to one party.”7 [33] Although the test is expressed in terms of a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind, it is also clear that the law requires that proposition to be ‘firmly established’ before the judge should disqualify himself or herself. … [34] The judge’s ordinary duty to sit unless convinced otherwise was also discussed in the earlier decision of Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [19] to [21]: ‘[19] Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. [20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter 6 Ibid. 7 Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 86 per Brennan, Gaudron and McHugh JJ.; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J. -- 10 of 81 -- 11 of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable. [21] It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.”8 (emphasis in original) [41] The respondent also relies upon actual bias, and the relevant legal principles are conveniently summarised in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98:9 “[68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. [69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. [70] As Gleeson CJ and Gummow J observed in that case at [71]: ‘The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.’ 8 Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 213. 9 Gleeson JA with Emmett JA and Tobias AJA agreeing. -- 11 of 81 -- 12 [71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision- maker will apply that opinion to the matter in issue. The third is the contention that a decisionmaker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. [72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded. [73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290: ‘The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.’ [74] The circumstances in which actual bias can be demonstrated solely from the published reasons for decision must be considered to be rare and exceptional …” [42] The Australasian Institute of Judicial Administration Incorporated has published a “Guide to Judicial Conduct” (3rd Edition) (AIJA Guidelines) which also provides some useful guidance in respect of issues such as those raised by the respondent. [43] In respect of “shareholding in litigant companies, or companies associated with litigants” the AIJA Guidelines state: “The judge should disclose the fact of the shareholding in open court thereby giving the parties an opportunity to make any submissions with respect to disqualification or otherwise. It may be wise, but not obligatory, to limit the range of investment in public companies, to minimise the need for frequent disclosure. -- 12 of 81 -- 13 Shareholding in a public investment company or in managed funds may be a sensible alternative.”10 [44] Further, the AIJA Guidelines consider the approach to personal relationships and identify what are described as first degree, second degree and third degree relationships. First degree relationships are parent, child, sibling, spouse or domestic partner. Second degree are grandparent, grandchild, in-laws of the first degree, aunts, uncles, nephews, nieces. Third degree are cousins and beyond. [45] A judge should not sit on a case in which the judge is in a relationship with the first, second or third degree to a party or the spouse or domestic partner of a party. That issue does not arise here. [46] The AIJA Guidelines also consider other relationships which may require further consideration. Specifically, in relation to past professional relationships, the AIJA Guidelines state: “Friendship or past professional association with counsel or a solicitor is not generally to be regarded as a sufficient reason for disqualification. An existing commercial or business relationship between the judge and counsel or a solicitor in a matter to be heard by the judge will require very careful consideration, as will the question of the extent and detail of the disclosure required by the judge in the circumstances.11 [47] These principles need to be considered in the context of the complaints raised by the respondent. The public were not admitted to a public hearing [48] The respondent identifies that there is a public interest in this matter. Her complaint is that she has been contacted by people who tried to access the hearing on 7 February 2022 who advised that they had entered the “waiting room” but were not given access to the hearing. [49] Further, the respondent states: “Her Honour’s Associate handed a post-it-note to Her Honour. Her Honour then proceeded to ask if either party was aware of someone trying to dial in. I was not aware at that time that this was another ANZ Bank victim dialling but was told after the hearing. When the parties said no, Her Honour did not even turn her mind to the fact that the public could be trying to access this hearing. Her Honour advised her Associate not to connect the call. The public were not admitted to this hearing and denied access to what was a public hearing. No application was made by [ANZ] for any suppression order or for the hearing to be in camera.” [50] On 7 February 2022, the application was specifically listed before me at 10.00 am in the Applications List. The parties were appearing in person and there was no 10 Page 13 at 3.3.1. 11 Page 16 at 3.3.4(f). -- 13 of 81 -- 14 application for leave for a party to appear by telephone or video-link. On the previous Friday, Boddice J had indicated in relation to the subpoena addressed to Mr Elliott, that Mr Elliott, if required, would be dealt with later in the day. Accordingly, for the purposes of the hearing, the video-link and telephone-link were not “set up” as there were no participants in the hearing requiring access via those facilities. [51] The Court was open for the duration of the hearing. At no time during the hearing on 7 February 2022 was the Court closed or a direction made that any person be prohibited from the Courtroom. [52] During the hearing, my Associate did convey to me that the Registry had received an enquiry from somebody who was wanting to join the hearing. I made enquiries of the parties. The relevant extract from the transcript is as follows: “HER HONOUR: Can I just interrupt you for a second. We’re getting a message from the registry that there’s somebody asking to join in this matter by Chorus Call. Is anybody expecting anyone to be joining in? RESPONDENT: No. MR GOODWIN: No, your Honour. HER HONOUR: No. Associate, there’s no one to worry about. Thank you. It might have been a different court in applications.”12 [53] The hearing was conducted as a public hearing and there was no denial of access to the hearing. In accordance with the usual procedure, the video and telephone facilities were not set up for the duration of the hearing unless by prior arrangement. [54] I have considered the issue raised by the respondent in respect of the unidentified individual who made an enquiry about joining the hearing. I do not consider that this gives rise to a legitimate concern about the hearing being conducted not as an open hearing, or otherwise contrary to the open justice principles. No disclosure prior to commencement of hearing [55] The respondent raises two distinct categories in respect of the alleged non-disclosure. [56] The first category is in relation to whether any bank accounts, mortgages or shares in the ANZ need to be disclosed. I have considered the legal principles and the AIJA Guidelines and consider that no disclosure is required. [57] The second category of alleged non-disclosure is in relation to potential relationships with firms of solicitors and their clients, and counsel retained by those firms. The respondent particularly raises concerns as to the ANZ being a client of Clayton Utz, King & Wood Mallesons and Corrs Chambers Westgarth. [58] I was an articled clerk and employed solicitor at Clayton Utz for a period from early 1994 to mid-1996. Further, I worked as an employed solicitor at Mallesons Stephen Jaques (the predecessor firm to King & Wood Mallesons) for a period from late 1997 12 T1-58 line 39 to T1-59 line 2. -- 14 of 81 -- 15 to early 2006. Given the considerable passage of time since then, I do not consider that any relevant issue arises as to the current clients of those firms. [59] Further, I was an employed solicitor and later a partner at Corrs Chambers Westgarth for a period from early 2006 to early 2020. There has been a period of two years since I departed the firm. Accordingly, I do not consider that any relevant issue arises as to the current clients of Corrs Chambers Westgarth. [60] The respondent has raised a further issue in relation to the firms of Clayton Utz, King & Wood Mallesons and Corrs Chambers Westgarth retaining Mr Edward Goodwin, the counsel who appears for the applicant in the current proceedings. [61] I have considered the issue raised by the respondent and considered the legal principles and the AIJA Guidelines, particularly in respect of past professional association. Given the effluxion of time, I do not consider there is any disclosure that needs to be made in this respect. [62] I have considered the matters raised by the respondent in relation to the alleged non- disclosure prior to the commencement of the hearing, and have reached the view that no reasonable apprehension of bias could be held by a fair-minded lay observer by fact of my previous association with Clayton Utz, Mallesons Stephen Jaques (the predecessor to King & Wood Mallesons) and Corrs Chambers Westgarth in respect of the current application. [63] Further, Herbert Smith Freehills are the current solicitors on the record for the ANZ. No declarations are necessary in respect of Herbert Smith Freehills. Comments regarding the exhibit to the Smith affidavit [64] The respondent raised a preliminary issue as to whether the inclusion of the “additional exhibit” in the exhibit bundle to the Smith affidavit was of such a character that resulted in there being no jurisdiction to deal with the application to set aside the statutory demand. Counsel on behalf of the applicant made submissions in respect of the exhibit responding to the issue raised by the respondent. [65] The respondent complains about comments I made in exchanges with Counsel for the applicant as to the search that was undertaken to obtain the document exhibited to the affidavit. [66] The transcript records that exchange as follows: “MR GOODWIN: Yes. So this – look, I should go back a step, your Honour, just to make the point clear. If your Honour takes up the full set of the Smith affidavit, your Honour will see in volume 1 the ASIC search begins at page 21. And as your Honour probably recalls, there are providers who you can – commercial providers who will provide you with an ASIC report, and this one is provided by InfoTrack. And that appears at the top right-hand corner of page 21. HER HONOUR: Yes. MR GOODWIN: And it’s just unfortunate that this is such a large document, but the rules require an applicant to put on a company -- 15 of 81 -- 16 search of itself when it applies to set aside a statutory demand. And because this is a bank - - - HER HONOUR: It’s huge. MR GOODWIN: - - - it’s huge. So we’ve duly exhibited the ASIC search. And you’ll see that the internal page numbering for this ASIC search begins at page 1 at the bottom centre of page 21 of the exhibit. HER HONOUR: Yes. MR GOODWIN: Has your Honour picked that up? HER HONOUR: Yes. MR GOODWIN: Then – if your Honour then flicks through to where Mrs Thomson’s complaint begins, you’ll see at page 633, bottom right-hand corner, this is a credit report. And then you’ll see at the top right-hand corner, Credit Report stamped there. HER HONOUR: Yes. MR GOODWIN: And what you’ll see – if your Honour looks down at the centre of the page, you’ll see page 613. Does your Honour see that? HER HONOUR: Yes. MR GOODWIN: And then if your Honour goes over to the earlier page, you’ll see 612. So what your Honour can deduce from that is when they put in a request for the search with InfoTrack, this is the document they get back. HER HONOUR: Yes. MR GOODWIN: Now, the actual ASIC report itself formally says ‘end of document’ and you can see that in a vertical line straight above 612, ‘end of document’. HER HONOUR: Yes. MR GOODWIN: But it’s all gone in. Now, Mrs - - - HER HONOUR: But isn’t this also – when you tick the – what reports you want, you can get a fully historical, bells and whistles type of report or you can get a truncated one. And this is actually a more complete report than if you’d gone for one that didn’t have this included, isn’t it? MR GOODWIN: It is a more complete report, but to be honest, your Honour, I don’t know - - - HER HONOUR: I can’t see why you – from your submissions – I see you’re not reading it, but to say that it’s wrong to have it in there -- 16 of 81 -- 17 – I don’t see technically that it’s wrong if it is a report that’s available - - - MR GOODWIN: It’s not wrong – what happened was the bank perceived Mrs Thomson to be complaining about us taking some forensic point about sort of, I don’t know, sneaking this in somehow. So we just said, ‘Look, we don’t care. We won’t read it,’ to just solve that. But then actually Mrs Thomson’s forensic point is slightly different. It’s not that we sort of put in there surreptitiously; she says, ‘Well, it’s an additional exhibit and it shouldn’t be in there and somehow that makes the whole’ - - - HER HONOUR: Well, equally, you might have been criticised for not including pages which were part of the original report. MR GOODWIN: Maybe, your Honour. But look, it’s - - - HER HONOUR: So, to me, it’s hard to see that this point actually goes anywhere when that is an entire document. And in this court, an entire document should be put in - - - MR GOODWIN: Yes. HER HONOUR: - - - unless there’s a reason not to. MR GOODWIN: So look, it’s a nothing point, but it’s taken against us. So I’m just explaining to your Honour why - - -”.13 [67] The respondent now takes issues with that exchange, in particular, that I must have been drawing on personal experience as a solicitor and not from the evidence before the Court. The respondent contends that this is actual bias in respect of the ultimate issue that needs to be determined on the substantive application. [68] The Smith affidavit indicates that he caused a search to be undertaken. The submissions and exchange were directed at whether the full document exhibited from page 21 of the exhibit to the Smith affidavit was the result of that search or whether the exhibit did not reflect the result of that search. The reference to “tick box” was a shorthand reference to selecting a particular search to be undertaken. [69] I have considered the concerns raised by the respondent and the exchange with Counsel for the applicant. I do not consider that actual bias has been established or that it gives rise to a fair-minded lay observer reasonably apprehending that I might not bring an impartial and unprejudiced mind to the resolution of the question that is required to be decided in relation to the application. Applicant’s solvency [70] The respondent also raises a complaint in respect of statements made by me in the course of the hearing regarding the solvency of the applicant, including enquiring whether the respondent was relying on any evidence that the applicant was not able to pay its debts as and when they fell due. 13 T1-33 line 14 to T1-35 line 4. -- 17 of 81 -- 18 [71] This issue arises in respect of the second ground raised by the applicant in the originating application pursuant to s 459J(1)(b) of the Corporations Act. The “other reason” relied upon by the applicant in respect of this ground is that the applicant was at all relevant times solvent, the respondent was aware of this and in the circumstances this is an abuse of process or a subversion of the statutory regime. Part of the applicant’s argument is that the respondent had no genuine belief that the ANZ is insolvent and had no legitimate expectation that the ANZ would be wound up for failing to satisfy her demand. The issue of the absence of a reasonable belief on the part of the respondent was clearly in issue in the substantive application. [72] The complaint made by the respondent in this regard is stated in the email as follows: “32. In the hearing of an application to set aside a creditors statutory demand made against ANZ, one of Australia’s big four banks, it would be difficult for any Judge to approach the hearing without a prejudgment that the Bank is solvent. But this prejudgment would be based on information obtained prior to entering the Court room through media, holding bank accounts with ANZ, loans being entered into between ANZ and the Judge, possible share ownership in ANZ and experience as a solicitor working for legal firms where ANZ is a client. 33. The only way that this prejudgment could not exist is for the Judge to come to the hearing with an open mind to base the decision solely and only on the evidence before the Court, and not take into account experience and knowledge that Her Honour gained through the media, being associated in some way with ANZ though a bank account, loan or shareholder and as a solicitor and the law.” [73] The applicant has filed and served evidence which it seeks to rely on (subject to the determination of the preliminary issues identified by the respondent) to establish the applicant’s solvency for the purposes of the second ground raised in the originating application. [74] The second aspect of the second ground is the respondent’s knowledge. The exchanges with the respondent during the course of her submissions were directed at providing the respondent with an opportunity to identify the basis for her stated belief that she had concerns about the solvency of the applicant. [75] Further, the respondent concludes: “47. The fair-minded lay observer with his attributes would apprehend if Her Honour did make a decision in regard to ANZ’s solvency that it was not done on the merits of the evidence before the Court and had not brought an impartial and unprejudiced mind to the resolution of the question she needed to answer around insolvency. That any decision she makes is not on the incomplete set of financial records but on a prejudgement that ANZ is solvent. It is not possible on the evidence for Her Honour to do this.” -- 18 of 81 -- 19 [76] Having considered the matters raised by the respondent, I do not consider that a fair- minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question required to be decided in respect of the issue of solvency raised in the second ground or more broadly. Setting aside subpoena addressed to Shayne Elliott [77] At the outset of the hearing on 7 February 2022, I raised with both the applicant and respondent the best way to proceed in relation to the two applications namely, the application to set aside the subpoena and the originating application. Following hearing from both parties, I determined to proceed by dealing with the application to set aside the subpoena first and then followed by the originating application, which included consideration of the identified preliminary issues. [78] I gave ex tempore reasons for my decision in relation to setting aside the subpoena addressed to Mr Elliott. My reasons have been included in the daily transcript received from Auscript and appear at T1-20 line 46 to T1-25 line 8. [79] In those reasons, I identify the relevant authorities and considered the submissions raised by the parties. [80] In respect of the decision to set aside the subpoena addressed to Mr Elliott, I do not consider that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question to be determined in respect of the issues raised in the application. [81] The respondent’s complaint also raises issues in relation to the ANZ’s “model litigant principles”. The respondent exhibits a copy of a document entitled “ANZ’s Dispute Resolution Principles and Model Litigant Guidelines” in her affidavit sworn 30 January 2022 at page 630. [82] It appears from the respondent’s email that there may be some confusion between the obligations on parties under r 5 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and the document entitled “ANZ’s Dispute Resolution Principles and Model Litigant Guidelines” (ANZ Model Litigant Guidelines). [83] The ANZ Model Litigant Guidelines include principles to be applied in relation to legal proceedings, including at point 15: “If litigation cannot be avoided, minimise the impact to the customer and ANZ by: a. Taking steps to clarify and narrow the issues in dispute. b. Not requiring the other party to prove a matter that ANZ knows to be true. c. Not contesting liability if ANZ knows that the dispute is really about quantum. d. Avoiding unnecessary delays. e. Monitoring the progress of litigation and using appropriate methods to settle or resolve the matter. -- 19 of 81 -- 20 f. Ensuring that any person negotiating a settlement on behalf of ANZ has authority to reach agreement. g. Not undertaking or pursuing an appeal unless there are reasonable prospects of success.” [84] These objectives are similar in a number of respects with the objective and purpose of r 5 of the UCPR, being the just and expeditious resolution of the real issues at a minimum of expense. [85] The respondent concludes at [57] of her email as follows: “The fair-minded lay observer would reasonably apprehend with his attributes of knowledge that the Judge is a professional lawyer, where there is no evidence before the Court about the Court’s Model Litigant Principles but there is evidence of ANZ’s Model Litigant Principles before the Court, would apprehend that Her Honour might not bring and [sic] impartial and unprejudiced mind to the resolution of whether Mr Elliott should give evidence under the Subpoena in accordance with ANZ’s model Litigant Principles it has agreed to be bound by.” [86] In my reasons for setting aside the subpoena addressed to Mr Elliott, I refer to r 416 of the UCPR which provides that the Court may make an order setting aside all or part of the subpoena. I do not refer to r 5 of the UCPR. [87] In the subsequent ruling in respect of the respondent’s application for an adjournment,14 reference is made to the obligations in r 5 of the UCPR that the matter be dealt with in the most efficient and expeditious way.15 Further, there was an exchange with the respondent in relation to the ANZ Model Litigation Guidelines in respect of the application for an adjournment.16 This does not appear to be part of the current complaint by the respondent. [88] In any event, the Court is able to take into account and consider the relevant rules contained in the UCPR and the relevant law, without them being put into evidence by the parties. [89] I do not consider that there is any basis to the complaint concerning what the respondent refers to as the “Court’s Model Litigant Principles”. Not giving the required assistance and/or consideration to a self-represented litigant [90] The respondent also raises a complaint in respect of the overall conduct of the hearing. [91] The hearing commenced at approximately 10.00 am and proceeded until approximately 12.30 pm. It reconvened at 2.30 pm and concluded again at approximately 5.20 pm. As a result, the hearing occurred in a period of just under 14 T1-53 line 24 to T1-1-56 line 4. 15 T1-55 line 46 to 47. 16 T1-52 line 30 – T1-53 line 2. -- 20 of 81 -- 21 five and a half hours. This time is significantly in excess of the two hour provision for matters heard in the applications list. [92] Given that an interlocutory application and the originating application were being dealt with and that there were numerous voluminous affidavits, some in multiple large parts, there was confusion at times as to what documents were being referred to. The applicant was given an opportunity to make submissions and take the Court to the material that she wanted to refer to and rely on in the affidavits over the course of the hearing. [93] At the hearing the respondent indicated she was unable to immediately deal with the submissions by the applicant in response to the concerns she raised in respect of the affidavits. The matter was adjourned at approximately 12.30 pm to provide an opportunity for the respondent to consider the submissions and material that had been provided to her that morning, and to accommodate the hearing of another matter at 2.00 pm. Upon the resumption of the hearing at 2.30 pm, the respondent made an application for an adjournment. The application was refused and reasons given. My reasons have been included in the daily transcript received from Auscript and appear at T1-53 line 24 to T1-56 line 4. [94] The respondent does raise a further matter in respect of a case referred to by Mr Goodwin, counsel for the applicant, as follows: “63. Her Honour asked Mr Goodwin if he had been able to find any caselaw regarding this affidavit without the perjury clause. He stated that he had found an unreported case that had an Italian sounding like name of ‘Punda’ something. He was not able to provide a citation for this case and this case was not in ANZ’s written submissions. He also did not make any further oral submissions in regard to this case.” [95] The relevant transcript of the exchange with Counsel regarding this authority is as follows: “MR GOODWIN: Your Honour, the closest I came – it seems to be an unreported decision, but there’s a case – it’s got an Italian- sounding name. I can dig it up over lunchtime. It’s called Pudzioni or something like that where – it’s the flipside of this situation where the applicant to seek to set aside a statutory demand is complaining about defects in the statutory demand. HER HONOUR: Demand itself. MR GOODWIN: And what they say is, ‘Look, your affidavit, verifying the statutory demand, doesn’t have the perjury warning in it, among other things.’ And the – that argument is not successful. The statutory demand was not set aside on technical grounds. But it’s not – there’s no helpful reasoning about that particular point. It’s dealt with in a rather cursory fashion where the judge just says, ‘Look, I’m not satisfied that any of the defects in the statutory demand cause, I think, substantial injustice.’ There’s a specific test - - - HER HONOUR: Test, yes. -- 21 of 81 -- 22 MR GOODWIN: - - - under the Act, and that test is unique to the demand. It doesn’t apply to the application - - - HER HONOUR: To set aside.”17 [96] In relation to this issue the respondent later indicated to the Court: “RESPONDENT: - - - gave me that material this – I only got that material this morning and there’s other cases being named. I mean, you rightfully asked him whether or not there was a case that was on point in regard to the form of the Victorian affidavit. He raised that there is a case. He didn’t know the name. It was Italian [indistinct] I did go and research that at lunch time. That has nothing to do with anything that we’re talking about here. It had to do with defects in the actual demand and supporting affidavit itself. So the reality of it here is we’re going right off track in terms of what I actually raised.”18 (underlining added) [97] In respect of the refusal of the adjournment, the respondent states in her email dated 14 February 2022: “70. The fair-minded lay observer would reasonably apprehend that Her Honour’s refusal to adjourn to give a self-represented person requisite assistance and consideration to be able to deal with the late service of the written submissions; no Regulation to hand up at the hearing; and then Her Honour asking a question that lead to an answer that was not in their written submissions and could not remember the name of case, is apprehended bias to a self-represented person where Her Honour may not have brought the appropriate mindset to a hearing where one party is self-represented and the other one of Australia’s big four banks.” [98] I do not consider that there is any issue arising out of the exchange with Counsel or the non-production of the authority. Counsel indicated that he had considered the authority and it applied a different test and was of no assistance to the question that needed to be determined by this Court on this application. The respondent appears to have verified this position independently. [99] I do not consider that the issues raised by the respondent would cause a fair-minded lay observer to reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions that are required to be decided. Other avenues [100] In the course of the hearing, it was identified that the task to be undertaken on an application to set aside a statutory demand on the basis that there was a genuine dispute as to the debt being owing did not require a determination of the merits. Further, if the statutory demand was set aside, the respondent could pursue other avenues to seek payment for the debt claimed. 17 T1-32 line 25 to 46. 18 T1-57 line 16 to 23. -- 22 of 81 -- 23 [101] The respondent in her email raises difficulties that she had experienced in other proceedings including difficulties in having conduct money returned. [102] It is in these circumstances that the respondent raises a further complaint, namely: “77. A fair-minded lay observer with the attributes afforded to him and with knowledge of a fair understanding of the nature of the decision to be made and the circumstances leading up to that decision of whether to set side the statutory demand or not, would reasonably apprehend that Her Honour had a preconceived idea of other avenues open to me, when the evidence before Her Honour was that when I had taken another avenue the Applicant ensured that the subpoenas never reached its employees and they then never gave the required evidence which would have been detrimental to ANZ.” [103] The availability of “other avenues” including trial is consistent with the policy and objective behind s 459H of the Corporations Act. Where there is a genuine dispute about the existence or amount of a debt to which the demand relates then the statutory demand regime in the Corporations Act is not available, but “other avenues” are available for the dispute to be determined on its merits. [104] The comments in relation to “other avenues through the Courts” reflects the legal consequences if a statutory demand is set aside. The references to “other avenues” being available if the statutory demand was set aside on the basis of there being a genuine dispute does not give rise to reasonable apprehension in a fair-minded lay observer that I might not bring an impartial and unprejudiced mind to the resolution of the questions that are required to be decided. Further background [105] The respondent’s email at [78] to [80] also points to some further background between the respondent and the applicant as to the dispute that led to the negotiations and alleged agreement. It does not seem to raise any specific complaint that requires consideration in respect of the respondent’s application for me to recuse myself. [106] Having considered the matters raised by the respondent in her email dated 14 February 2022, I do not consider that there is any basis to conclude that I should recuse myself on the basis of actual or apprehended bias. [107] The originating application was allocated to me to be heard in the applications jurisdiction. Oral submissions in respect of the preliminary issues and the substantive grounds in the originating application were heard on 7 February 2022. At the conclusion of the hearing, I reserved my decision. [108] The issues raised by the respondent come one week after the conclusion of the hearing and the decision being reserved. [109] The respondent indicated at the conclusion of the hearing that she would be appealing. [110] In the circumstances, I consider I have a duty to exercise the judicial function which has been allocated to me to determine the originating application. -- 23 of 81 -- 24 [111] Accordingly, the application by the respondent that I recuse myself on the ground of actual or apprehended bias is refused. [112] I will now proceed to deal with the preliminary issues raised in respect of jurisdiction and the substantive issues in the originating application. Whether the applicant has a compliant application on foot to set aside the creditors statutory demand – jurisdiction issues Respondent’s position [113] The applicant filed the originating application to have the statutory demand set aside on or about 22 August 2019 and filed two supporting affidavits at the same time. These documents were served on the respondent. [114] Following the proceedings no longer being in abeyance, on 30 December 2021, the respondent advised that she had identified defects in the two supporting affidavits which she considered had needed to be remedied within the 21 days statutory period. [115] These defects were: (a) The first Kindermann affidavit was not on the approved Queensland affidavit form and had a different Court heading. (b) The Smith affidavit had an additional exhibit not referred to in the body of the affidavit nor contained within the certificate of exhibits. (c) The first Kindermann affidavit and the Smith affidavit did not contain the matter number. [116] On 4 January 2022 the applicant advised the respondent that: (a) the applicant would not be relying on pages 633 to 663 of the exhibit to the Smith affidavit at the hearing of the originating application. (b) the first Kindermann affidavit was in the Victorian form pursuant to r 2.6 of Schedule 1A of the UCPR (Rules for proceedings under Corporations Act or ASIC Act) (UCPR Corporations Rules). [117] By email dated 5 January 2022 the respondent advised the applicant’s solicitors that there was a further deficiency in the first Kindermann affidavit. The respondent contended that the affidavit was not in the “Victorian form” as it was missing the following statement: “The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offence of perjury.” [118] For ease of reference I will refer to this statement as the perjury warning.19 19 The two further Kindermann affidavits which have been subsequently filed in these proceedings do contain the perjury warning. -- 24 of 81 -- 25 [119] In respect of the applicant not relying on pages 633 to 663 of the exhibit to the Smith affidavit, the respondent said that this could not be remedied in this way as it was outside of the 21 day statutory period. [120] The respondent also raises an issue in the applicant’s originating application. The respondent points to the reference to “s 459J(b)” of the Corporations Act in the second numbered paragraph.20 The respondent contends that the applicant raised for the first time the abuse of process claim on the basis that the applicant is solvent in the second Kindermann affidavit affirmed 24 January 2022. [121] The respondent contends that the reliance now on s 459J(1)(b) of the Corporations Act does not match what is contained in the originating application. [122] Further, the respondent submits that the application in relation to whether the statutory demand is set aside or not needs to be determined first and then it is a matter for a determination as to whether the applicant is insolvent. Accordingly, the respondent contends that there is no “other ground” of abuse of process based on solvency until a later point in time when the decision is made.21 [123] The respondent contends that these preliminary issues need to be determined at the outset as otherwise there is no application properly made pursuant to s 459G of the Corporations Act. [124] The respondent refers to the decision in LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd22 of Holmes J (as the Chief Justice then was). That case considered an unsealed copy of the application, bearing no return date or file number being sent by facsimile to the respondent’s solicitors on the last day for service. It was argued that an unsealed copy of the application was not sufficient and it was not proper service. [125] Her Honour considered other relevant authorities. [126] In Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 181 the application served lacked the return date. It was held that it was not adequate service as the purpose of serving a document was “to give the party served proper notice of the proceedings for which his attendance was required; and that had not been achieved within the requisite 21 days”.23 [127] In Chelring Pty Ltd v Coombs [2000] WASC 60, a copy of a properly completed application to aside a statutory demand had been shown to a staff member of the respondent’s solicitors, but an incomplete copy, together with the supporting affidavit was left with the respondent’s solicitor. Further, the copy served did not bear the seal of the Supreme Court, did not have the action number endorsed on it and did not bear the date and time for hearing of the application. In that case, it was held that the “copy” of the application was required to include any important information, including the return date of the application and the date upon which the application was filed. 20 The applicant acknowledges that this is a typographical error and there is no s 459J(b) on the Corporations Act but this is meant to be a reference to s 459J(1)(b). 21 Paragraph 17 of written submissions dated 3 February 2022. 22 [2004] QSC 134. 23 LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134 at [4]. -- 25 of 81 -- 26 [128] In respect of the requirement to include “important information” Holmes J summarised the principle as follows: “Without those pieces of information, he said, a respondent would be put at a disadvantage: the filing date was needed so that the respondent could be sure that there had been compliance with the statutory requirements, and the return date was needed so that the respondent knew when it was required to appear.”24 [129] In Universal Trade Exchange Pty Ltd v Westpac Banking Corporation (2002) 20 ACLC 1302, the application served on the respondent lacked the return date. In that case, it was concluded that to comply with the requirements of this section, it was necessary that the copy of the application be endorsed with a return date. As it had not been, the application was incompetent. [130] Holmes J followed the reasoning of Santow J in Benonyx and concluded that the documents served failed to reflect the originating application in a matter of substance, that is, it did not contain the return date for the application. [131] The respondent here relies upon the cases of Chelring Pty Ltd v Coombs and Benonyx. [132] The respondent also refers to and relies upon the decision in Robowash Pty Ltd v Robowash Finance Pty Ltd,25 being a decision of the Full Court of the Supreme Court of Western Australia. In that case, the applicant had served its application but four pages of the annexure to the supporting affidavit were missing. The Court in that case concluded that the service of the affidavit and its annexure was deficient and therefore the application to set aside the statutory demand was not valid. [133] The respondent submits that if all sections of s 459G are not complied with then there is no application to set aside the statutory demand validly on foot. The respondent contends that here: (a) The first Kindermann has an irregularity in form which was not rectified within the 21 day period. The Victorian Supreme Court affidavit template available online is exhibited to the respondent’s affidavit.26 As the first Kindermann affidavit is missing the perjury clause, the respondent submits this is an irregularity in form. (b) The Smith affidavit had an additional document that was not referred to in the body of the affidavit or in the certificate of exhibit, and this was not corrected within the 21 day period. (c) Both affidavits also do not include the matter number in the Court heading. [134] Given the irregularities identified by the respondent, it is submitted that there has not been compliance with the requirements in s 459G of the Corporations Act. [135] The respondent acknowledges the existence of r 436 of the UCPR and that an affidavit may be used despite an irregularity in form with the leave of the Court. However, the respondent submits that the irregularity must be rectified within the 21 day period. 24 Ibid at [5]. 25 (2000) 158 FLR 338. 26 Exhibit CMT-5, affidavit of Thomson filed 17 January 2022. -- 26 of 81 -- 27 As this was not done, the respondent submits that the application to set aside the statutory demand has not been properly brought and is therefore not a valid application within s 459G of the Corporations Act. [136] In respect of the reference to “s 459J(b)”, the respondent contends that the originating application does not contain sufficient information for her, as a self-represented litigant, to know the basis for the order sought. She submits that until she was served with the applicant’s submissions for the hearing of the originating application on 2 February 2022 she was not aware that the paragraph should read “s 459J(1)(b)”. [137] The respondent submits that given the general wording in the Corporations Act section to “some other reason”, she was not sure what grounds for setting aside the statutory demand this related to. [138] Further, the respondent’s complaint is that the two supporting affidavits provided with the originating application did not state what that other ground was. The first Kindermann affidavit deals with the ground in respect of a genuine dispute. The Smith affidavit does not identify any ground to set aside the statutory demand. [139] In these circumstances, the respondent submits that there is insufficient information, she has been prejudiced by this late information and the irregularities were not rectified within the 21 day period. [140] The respondent contends that this omission from the originating application is a matter of substance and is sufficient to make the applicant’s application to set aside the statutory demand void. [141] Further, the respondent accepts that this could have been completed and re-served on her prior to the expiration of the 21 day statutory period but that had not occurred. [142] Ultimately, the respondent submits that as these irregularities have not been remedied within the 21 day period, the applicant does not have an application on foot to set aside the statutory demand. [143] The respondent’s substantive written submissions dated 6 February 2022 deal with issues on the substantive application but also further deal with these preliminary issues. These submissions largely repeat what is contained in the written submissions of the respondent dated 3 February 2022. [144] As outlined above, the applicant filed by leave separate submissions addressing the alleged deficiencies in the affidavits dated 6 February 2022. [145] Following the refusal of the application for an adjournment by the respondent, the respondent made some comments in respect of the approach taken by the applicant. [146] The respondent was critical of the applicant going through each of the alleged defects in detail as the respondent submitted that this missed her point. Her point was that these were irregularities that could be dealt with by a grant of leave, however this was required to be dealt within the 21 day period. [147] It appeared from this submission that the respondent did not consider that it was necessary for the applicant to address each of these alleged defects. -- 27 of 81 -- 28 [148] I disagreed with that position and indicated to the respondent that I considered it was appropriate that the applicant address the alleged defects so that the Court could fully understand the nature of the alleged defects and consider whether they went to jurisdiction or whether they were irregularities of form.27 [149] As indicated previously, the respondent was in a position to deal with the technical requirements of the Supreme Court (General Civil Procedure) Rules 2015 (Victorian Supreme Court Rules) to some degree and also the requirements of the UCPR as she had raised these points in her material. The submissions on behalf of the applicant do identify the requirements of the relevant Victorian legislation and Victorian Supreme Court Rules but this is necessary given the complaints raised by the respondent in relation to the supporting affidavits. Applicant’s position [150] The applicant accepts that the first Kindermann affidavit did not contain the perjury warning. Further, the perjury warning was contained in Schedule 1 of the Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 (Vic) (Victorian Oaths and Affirmations Regulations) at the relevant time. The question is the effect of the omission. [151] Further, it is not contentious that no application for leave pursuant to r 436(2) of the UCPR was made in respect of the first Kindermann affidavit or the Smith affidavit within the 21 day statutory period. To the extent that leave may be required, the applicant made that application at the hearing. [152] The applicant’s primary position is that the respondent’s complaints in respect of the first Kindermann affidavit and the Smith affidavit should be rejected. Alternatively, if the Court considers that they are irregularities, then the applicant seeks leave under r 436(2) of the UCPR to rely upon those affidavits. [153] Rule 2.6 of UCPR Corporations Rules permits an affidavit used in a Corporations Act matter to be in the form that complies with: (a) the UCPR; or (b) the rules of the Supreme Court of the State (if any) or Territory (if any) where the affidavit was sworn or affirmed; or (c) the rules of the Federal Court of Australia. [154] Ms Kindermann is a solicitor, holds a Victorian practising certificate, is a senior inhouse lawyer for the ANZ in Victoria28 and she affirmed the first Kindermann affidavit on 21 August 2019 at Melbourne in Victoria. The affidavit was affirmed before Nicholas Guenther, an Australian legal practitioner. In these circumstances, the applicant contends that it is permissible to file an affidavit that complies with the Victorian Supreme Court Rules. [155] Order 43 of the Victorian Supreme Court Rules sets out the requirements in respect of affidavits. The relevant version of the Victorian Supreme Court Rules in force at the time the first Kindermann affidavit was affirmed was authorised version number 27 That is, whether they were irregularities or more substantive in nature. 28 These matters are set out in the first Kindermann affidavit. -- 28 of 81 -- 29 028 which incorporated amendments as at 3 June 2019. A copy of an extract of these rules was annexed to the applicant’s submissions. [156] The applicant contends that the first Kindermann affidavit complies with the requirements as set out in Order 43 Victorian Supreme Court Rules. [157] The Victorian Supreme Court Rules authorised version number 028 did not prescribe a general form of affidavit. Also exhibited to the submissions is a list of the Victorian forms. Whilst form 43A is a form for a certificate identifying exhibit, there is no form in respect of an affidavit. [158] There are prescribed forms in respect of certain specific affidavits, for example an affidavit of documents, an affidavit in support of an application for attachment of earnings order, an affidavit in support of summons for an order to attend for examination or furnish particulars and an affidavit as to stock. None of those forms are relevant to the current considerations. [159] Further, the applicant submits that the relevant perjury warning which is stated in Schedule 1 of the Victorian Oaths and Affirmations Regulations is not contained in those prescribed forms for the affidavits for particular purposes. Further, the applicant notes that the current version of the Victorian Supreme Court Rules (being version 040) which incorporates amendments as at 1 January 2022 also do not contain the perjury warning in respect of forms 29B, 72B, 72E and 73B which relate to those specific affidavits. [160] The applicant in its submissions also considers the Supreme Court (Corporations) Rules 2013 (Vic) (Victorian Corporations Rules). The latest authorised version number 11 incorporates amendments as at 2 July 2018. Neither the form of affidavit accompanying a statutory demand (form 7) or the example affidavit in support of an application for winding up an insolvency contain the perjury warning from the Victorian Oaths and Affirmations Regulations. [161] The “affidavit template” that the respondent identifies in her submissions, and which has been exhibited in her affidavit, is not a prescribed form under the Victorian Supreme Court Rules or the Victorian Corporations Rules. [162] It is accepted that the affidavit template appears on the Supreme Court of Victoria website. There is no form number noted on the affidavit template. [163] Further, the applicant has been unable to verify whether the affidavit template was published at the time that the first Kindermann affidavit was affirmed as there is no date on the document on the Supreme Court of Victoria website.29 [164] The applicant contends that “at worst” the difference in the form of the first Kindermann affidavit amounts to an irregularity and notes that this has been accepted by the respondent. [165] The applicant points to the following rules in support of this contention: (a) Rule 2.01(1) of the Victorian Supreme Court Rules provides: 29 However, it is accepted that the perjury warning was in the Schedule 1 of the Victorian Oaths and Affirmations Regulations at the relevant time. -- 29 of 81 -- 30 “A failure to comply with these Rules is an irregularity and does not render a proceeding or any step taken, or any document, judgment or order in the proceeding, a nullity.” (b) Rule 43.08 of the Victorian Supreme Court Rules provides: “Notwithstanding any irregularity of form an affidavit may, with the leave of the Court, be used in evidence.” [166] The applicants also submits that it is also relevant to consider the statutory requirements for an affidavit in Victoria which are found in Part 3 of the Oaths and Affirmations Act 2018 (Vic) (Victorian Oaths Act). The perjury warning set out in Schedule 1 to the Victorian Oaths and Affirmations Regulations is not expressly stated or referred to in Part 3 of the Victorian Oaths Act. The requirements for a deponent appear in s 25 and the requirements for an “authorised affidavit taker” appear in ss 26 and 27 of the Victorian Oaths Act. [167] The requirements in s 25 of the Victorian Oaths Act are as follows: “(1) Subject to section 28, the deponent of an affidavit must do the following in the presence (whether physically or by audio visual link) of an authorised affidavit taker— (a) sign or initial any alteration to the affidavit; (b) sign each page of the affidavit; (c) sign the affidavit; (d) if the affidavit refers to a document, sign a certificate attached to the document identifying the document as an exhibit to the affidavit; (e) take the oath or make the affirmation in accordance with Part 2. (2) The deponent must swear or affirm the affidavit by saying the prescribed oath or affirmation aloud in the presence (whether physically or by audio visual link) of the authorised affidavit taker, unless the deponent has a disability that prevents the deponent from doing so.” [168] Section 28 is not relevant to the current circumstances. [169] Further, s 23 of the Victorian Oaths Act provides “an affidavit may be in the prescribed form”. (emphasis added) [170] The applicant draws attention to the use of the word “may” rather than “must”. This is in contrast to other sections of the Victorian Oaths Act where the word “must” is used, including in relation to statutory declarations. [171] In the Victorian Oaths and Affirmations Regulations, this distinction is also maintained. Section 1 of the Regulations states: “The objectives of these Regulations are to prescribe— -- 30 of 81 -- 31 (a) a form which may be used to make an affidavit; and (b) a form which must be used to make a statutory declaration …” (emphasis added) [172] This is then consistent with s 7 of the Victorian Oaths and Affirmations Regulations which states: “For the purposes of section 23 of the Act, the prescribed form is set out in Schedule 1.” [173] As a result, an affidavit may be in the form set out in Schedule 1 of the Victorian Oaths and Affirmations Regulations. Schedule 1 of the Victorian Oaths and Affirmations Regulations contains a form of affidavit which includes the perjury warning. [174] The other contents of the form are not in issue here. [175] Also, relevantly, s 29 of the Victorian Oaths Act states: “Minor non-compliance does not affect validity An affidavit is not invalid merely because of an inadvertent non- compliance with a requirement imposed by this Part that does not materially affect the nature of the affidavit.” [176] The applicant contends that s 29 of the Victorian Oaths Act operates such that any non-compliance with the prescribed form does not go to validity. It is also submitted that this is consistent with r 43.08 of the Victorian Supreme Court Rules. [177] The applicant contends that if the omission of the perjury warning is an irregularity then leave would be required to use the first Kindermann affidavit in evidence. The distinction is made between filing an affidavit and using it in evidence. [178] In respect of the issue concerning the exhibit to the Smith affidavit, the applicant submits that to comply with the UCPR Corporations Rules, a company search of the ANZ was exhibited to the Smith affidavit. [179] The applicant points in this respect to the search result starting at page 21 of the exhibit to the Smith affidavit. [180] The pagination of the search result starts at internal numbering page 1 (page 21 of the exhibit) and goes through to page 643 (page 663 of the exhibit). [181] A review of the Bundle from page 21 onwards shows three parts: (a) A page titled “ASIC Extract Snapshot” at page 1 which in the top right hand corner has “InfoTrack”. It also shows in grey shaded boxes on that page “Go to Full ASIC Results” and “Go to Full Credit Report”. (b) At page 2 the heading is “ASIC Current Organisation Extract” for Australia and New Zealand Banking Group Limited and the date of the extract as shown just under the heading on page 2 (page 22 of the exhibit) is “ASIC Data Extracted 20/08/2019”. The top right hand corner of page 2 (page 22 of exhibit) -- 31 of 81 -- 32 has “InfoTrack”. The ASIC extract appears to continue through to page 612 (page 632 of the exhibit) concluding with the words “End of Document”. (c) At page 613 the page is headed “(creditor) watch” and “Credit Report” (page 633 of the exhibit). There is also a separate internal number in the bottom right hand corner of the pages “Page 1/31”. At page 643 (page 663 of the exhibit) this is shown as “Page 31/31”. [182] It is submitted by the applicant that there is no irregularity as it was the entire search result that was included. [183] However, to meet the complaint raised by the respondent, the applicant indicated that it did not read or rely upon the pages 633 to 663 of the exhibit, being the Credit Report. [184] It is submitted that the inclusion of the Credit Report has no impact on the affidavit being filed within the 21 day period and does not affect its nature as an affidavit. [185] Further, the applicant submits that it is always open for the applicant to seek not to read and rely on part of an exhibit. That is entirely separate from the process of filing the affidavit. Accordingly, the applicant submits there is no irregularity in relation to the exhibit to the Smith affidavit. [186] Further, the applicant responds to the issue raised in respect of the first Kindermann affidavit and the Smith affidavit being defective because they do not have the matter numbers written on them. [187] The matter number was completed in handwriting on the originating application and the Court seal was affixed and the relevant return date completed. The matter was originally listed for 10.00 am on 17 September 2019. Accordingly, it is not contentious that the copy of the originating application which was served on the respondent contained the matter number. [188] It is contended that the two affidavits which were served in support of the originating application (the first Kindermann affidavit and the Smith affidavit) did not have the matter number completed in handwriting but they did bear the Supreme Court seal. [189] Further, there is no suggestion in the current case that the affidavits were different to that filed with the Court but it is merely the omission of the matter number on the service copy of the affidavits which is in issue. [190] The applicant refers to and relies upon the decision of Craneford Nominees Pty Ltd v VGC Co-Operative Ltd.30 In that case, Stanley J considered the meaning of “copy” and concluded: “[21] An analysis of the authorities demonstrates that a document will satisfy the definition of a ‘copy of the application’ where: (1) the copy document reflects the form of the originating process accepted by the court within the 21 day period; 30 (2012) 262 FLR 283. -- 32 of 81 -- 33 (2) the copy document evidences the fact of the court’s acceptance, and hence, the fact that proceedings have been commenced, by some mark, whether it is the seal of the court, the Registrar’s signature, or some other authenticating mark such as the court stamp or action number; and (3) the copy document records the important fact of the return date of the application.” [191] Here, the applicants submits that the affidavits were sealed and were served together with the originating application which did include the matter number and the return date. They were copies of the affidavits filed and consequently no irregularity arises. [192] The final issue addressed by the applicant in respect of these preliminary matters is in respect of the Smith affidavit not raising the relevant supporting ground for s 459J(1)(b) of the Corporations Act. [193] In this regard, the applicant relies upon the decision of Sceam Constructions Pty Ltd v Clyne,31 where the Court of Appeal, in joint reasons of Ferguson CJ, Sifris and Walker JJA undertook a review of the relevant authorities in relation to what is required for an affidavit to satisfy the requirement that it support the application to set aside a statutory demand. [194] In considering the various authorities in respect of the requirements, the Court of Appeal states: “[36] Most recently the issue was considered by the New South Wales Court of Appeal in Ziegler atf Doris Gayst Testamentary Trust v Cenric Group Pty Ltd.32 Gleeson JA (with whom Meagher and McCallum JJA agreed) referred to the first paragraph of the passage in Infratel … In dealing with a submission about what was required for a supporting affidavit, Gleeson JA drew on Lindgren AJA’s judgment in NA Investment Holdings. His Honour said this: Ms Ziegler’s third complaint confused the concept of ‘support’ (as in an affidavit in support) with natural justice considerations. In NA Investment Holdings Pty Limited v Perpetual Nominees Ltd, Lindgren AJA (Beazley and Handley JJA agreeing) said that there is no requirement that the party seeking to set aside a statutory demand draw to the attention of the defendant the particular issue on which reliance will be sought to be placed, observing that such a submission confused the concept of ‘support’ in the requirement for an affidavit in support with natural justice considerations. Insofar as Ms Ziegler relied on statements in some authorities, such as by Barrett J in Elm Financial Services 31 [2021] VSCA 270. 32 [2020] NSWCA 85 (Ziegler). -- 33 of 81 -- 34 Pty Ltd v MacDougal and in Process Machinery Australia Pty Ltd v ACN 057 262 590 Pty Ltd, that the Graywinter principle requires that the affidavit in support of the application ‘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’, subsequent authority takes a less strict view of the scope of the so-called ‘Graywinter principle’ and accepts that the requirement in s 459G(3)(a) is satisfied if the ground is raised expressly, by necessary inference, or by a reasonably available inference … Nor is there a requirement that the supporting affidavit contain submissions or arguments as to the legal basis of the asserted offsetting claim. That is not the function of an affidavit, as Lindgren AJA correctly observed in NA Investments Pty Ltd v Perpetual Nominees Ltd.33 [37] Further, some of the authorities have also cautioned against using the phrase, ‘Graywinter principle’, noting the potential for distraction from the terms of the statute; that subsequent authorities have modified it; and that the rule by reference to which Sundberg J reasoned had subsequently been repealed.34 [38] Standing back from all that has been written in the authorities, it is important to bear firmly in mind that what is critical is the language in the legislation. It requires an affidavit supporting the application to be filed with the Court within the statutory period. In the context of a claim to set aside the statutory demand on the basis that there is a genuine dispute as to the existence or amount of the demand, pursuant to s 459H(1)(a), the affidavit must support the application by providing the basis for establishing that there is a genuine dispute. Establishing the genuineness of the dispute requires material showing, or from which it can be inferred, that there is a real dispute. Most commonly this will be done by the deponent describing the dispute. That description will delineate the scope of the dispute which may be relied upon to set the demand aside. Where the dispute is based purely on the construction of a written agreement between the parties, the support requirement may be satisfied by exhibiting the agreement without more. But, for example and without being prescriptive, if something beyond the written terms is to be relied upon, then it is highly likely that this will need to be raised in the affidavit and more than mere assertion will be necessary. Ultimately, what is required to satisfy the support requirement must be assessed in the context of the particular application that is made. 33 Ibid [47]-[49] (emphasis added) (citations omitted). 34 Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd (2019) 99 NSWLR 397, 407–8 [40]; [2019] NSWCA 60; Ibid [48]. -- 34 of 81 -- 35 [39] In our opinion, while various forms of language are used in the authorities, their effect is the same. Whether the terms ‘fair notice’ or ‘fairly alert’ are used or whether it is said that the ground must be raised ‘expressly, by necessary inference or by a reasonably available inference’, the outcome turns on whether the affidavit supports the application. In their context, we do not understand the Victorian authorities referred to above to have used the terms ‘fair notice’ and ‘fairly alert’ in a procedural fairness sense. Rather, in substance and properly understood, those phrases have been used as a shorthand for the lengthier phrase ‘expressly, by necessary inference or reasonably available inference’. That phrase requires that the grounds for resisting the statutory demand appear in the affidavit. The phrases ‘fair notice’ and fairly alert’ convey the same requirement. And in several of the cases using that terminology, the Court has used both phrases, in a context indicating that it considered that they conveyed the same requirement.35 The language of ‘fair notice’ or ‘fairly alerts’ has been directed towards the need for the affidavit to show that there is a real dispute, so as to properly be regarded as an affidavit that supports the application to set aside the statutory demand. [40] Further, in our view the language of ‘fair notice’ and ‘fairly alert’ describes one of the key purposes of the affidavit required to be filed and served under s 459G(3). That this is a key purpose of the section is supported by the extrinsic materials. Section 459G was introduced into the precursor to the Act by the Corporate Law Reform Bill 1992. The Explanatory Memorandum to that Bill records that s 459G was introduced as one of a suite of provisions to implement the recommendations of the ‘Harmer Report’ in connection with the setting aside of statutory demands.36 In relation to the affidavit requirement, the Harmer Report said as follows: Proposal. In DP 32 (para 118) the Commission proposed that any person (including the company) seeking to oppose an application for a winding up order based upon an allegation of insolvency should have to file and serve on the applicant notice of the grounds of opposition verified by affidavit. This was to ensure that a person opposing a winding up order put forward the basis of the opposition within an appropriate time. Recommendation. The Commission recommends that a person who has not, within the prescribed time, filed and served on the applicant notice of the grounds of opposition (verified by affidavit), should not, without leave of the court, be entitled to oppose an application 35 See, eg, Malec [2015] VSCA 330, [59]; GoConnect [2016] VSCA 315, [40]. 36 Explanatory Memorandum, Corporate Law Reform Bill (Cth) [685]. -- 35 of 81 -- 36 for a winding up order. Further, where the application for winding up is based upon non-compliance with a statutory demand, limits should be placed upon the right of a company to dispute the demand.37 [41] Thus we do not think it constitutes an error to describe the affidavit requirement in s 459G(3) as directed to ‘fairly notifying’ or ‘fairly alerting’ the person who filed the statutory demand to the ground(s) on which the applicant will seek to have the statutory demand set aside. That is not to suggest that the language of ‘fair notice’ is concerned with matters of procedural fairness. [42] However, given that the language of ‘fair notice’ is not used in the statute itself, and is susceptible to misinterpretation, we consider that it would be preferable to avoid use of that language in the future. In a similar vein, while the shorthand phrase ‘Graywinter principle’ is convenient in some senses, it may be preferable to avoid its use, given that the authorities have developed since Graywinter was decided. It is more appropriate to use the language of the statute and to consider whether the statutory period affidavit ‘supports’ the application. If it does, then that affidavit may be supplemented by evidence filed outside the statutory period. If it does not, then there is no jurisdiction to consider material filed beyond that period.” (underlining added) [195] In light of these statements, the applicant submits that the test is to ask whether the affidavit raised expressly, or by necessary inference, or by reasonably available inference, the ground for setting aside the statutory demand. [196] Further, it is contended that it is not necessary that the affidavit contain submissions or arguments as this is not the function of an affidavit. [197] The applicant also submits that the test is not a subjective one and therefore the correct question is not whether the respondent in a given case subjectively understood the ground. [198] The applicant’s position is that the Smith affidavit identified in the body in the affidavit and in the exhibits: (a) The ANZ made a statutory profit of $3.17 billion for the half year ending 31 March 2019; and (b) Cash profits for its continuing operations of $3.56 billion for the half year ending 31 March 2019. [199] Further, it is contended that the only reason for including this evidence in the context of s 459J of the Corporations Act is to demonstrate “some other reason” for setting aside the statutory demand. 37 Law Reform Commission, General Insolvency Inquiry (Report No 45, 1988) 76 [118] (‘Harmer Report’). -- 36 of 81 -- 37 [200] The applicant submits that s 459J is expressly mentioned at the beginning of the originating application and the later reference to “s 459J(b)” rather than the correct reference to s 459J(1)(b) does not mean there is no application under s 459J. The affidavit clearly raised the financial position of the applicant. This was not evidence that went to a ground that could be covered by s 459J(1)(a). [201] Accordingly, the applicant submits that the subject matter referred to in the affidavit resulted in the reasonably available inference being that the ground for setting aside the statutory demand was that the applicant was solvent. [202] The applicant also referred to a number of other cases in submissions. [203] The applicant refers to the case of Whisson and Another v Eastland Technology Australia Limited.38 In that case, the Full Court of the Supreme Court of Western Australia constituted by Steytler J, McKechnie and Jenkins JJ heard an appeal which included a ground challenging an application to set aside a statutory demand on the basis that the application referred to the statutory demand being dated an incorrect date and the supporting affidavit referred to the correct date. The appeal was dismissed and the Court found that the reference to the incorrect date of the statutory demand was not fatal. [204] Justice Steytler in respect of this issue stated: “[12] In my opinion this submission is without merit. It was obvious all concerned that there was typing error in the application and it was the statutory demand dated 22 October 2002 that was intended to be referred to. The hearing before the Acting Master proceeded upon the assumption that this was the statutory demand which was sought to be set aside. The supporting affidavit made this plain. It referred to the demand dated 22 October 2002 and annexed a copy of it. Consequently, the Court had jurisdiction to make an order setting aside the statutory demand.” [205] Further, McKechnie J stated in relation to this issue: “[42] The essence of the amended ground 1A of the appeal is that no valid application to set aside the statutory demand dated 22 October 2002 had been made pursuant to s 459G of the Corporations Act (2001) because the respondent, in its claim for a declaration, referred to the statutory demand as being dated 21 December 2001. The application was supported by an affidavit of Mr Sharland sworn 11 November 2002, to whom reference has been made. In [4] of his affidavit Mr Sharland says: ‘On 23 October 2002 the Applicant received a Creditors Statutory Demand for Payment of Debt (‘the Second Statutory Demand’) dated 22 October 2002 issued by Mr Brendan Ashdown on behalf of the Respondents.’ 38 [2004] WASCA 272. -- 37 of 81 -- 38 [43] The statutory demand was annexed to Mr Sharland’s affidavit together with the affidavit accompanying the statutory demand of Messrs Whisson and Prestidge dated 22 October 2002. I do not consider the dating error in the application gives rise to any jurisdictional issue at all. Issues were joined before the Acting Master on the correct statutory demand. Nobody was in any doubt as to what was being asserted in the statutory demand and which statutory demand was being resisted. The ground is without merit.” [206] In these circumstances, the applicant submits that the validity of the application to set aside the statutory demand is not affected by any irregularity. The incorrect reference to “s 459J(b)” in the originating application does not affect the validity of the originating application or the affidavits in support. Further, the Smith affidavit contains information as to the financial position of the applicant and the reasonably available inference is that the “some other reason” relied upon by the applicant was the solvency of the applicant. [207] Finally, the applicant points to the fact that the respondent appears to accept that the first Kindermann affidavit and the Smith affidavit were filed on 22 August 2019. The requirements of s 459G(3) of the Corporations Act refers to the filing of a supporting affidavit within the 21 day period. [208] The applicant contends that the respondent’s submission that any irregularity must be rectified within the 21 day period is incorrect. [209] In respect of where any irregularity arises under the rules of Court (in contrast to a jurisdictional point under the Corporations Act) reliance is placed on the decision in Financial Solutions Australasia Pty Ltd v Predella Pty Ltd.39 [210] That case concerned an appeal from a decision of the Master setting aside a statutory demand. On appeal, Parker J, with whom Anderson and Scott JJ agreed, stated: “39 By ground 1 Financial Solutions contends that the affidavit of Mr Farbenbloom in support of the application failed to meet essential requirements of O 81G, r 12, as that rule then provided, in that it failed to state ‘the facts in support of the process’ as required by subr (1) and it failed to ‘annexe a record of a search of the records maintained by the Commission, in relation to the company that is the subject of the application …’ as required by subr (2). Order 81G, r 12 then provided: ‘12 (i) Unless the Court otherwise directs, an originating process, or interlocutory process, must be supported by an affidavit stating the facts in support of the process. (ii) An affidavit in support of an originating process must annex a record of a search of the records maintained by the Commission, in relation to the company that is the subject of the application to 39 (2002) 26 WAR 306. -- 38 of 81 -- 39 which the originating process relates, carried out no earlier than seven days before the originating process is filed.’ 40 The appellant points to the word ‘must’ in both subrr (1) and (2) as indicating an essential requirement of a supporting affidavit, the intention of the rule in each case being, it is submitted, that an affidavit which fails to comply with the requirement is not valid or effective as an affidavit supporting the application: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391; Australian Steel Co (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 at 44-46 [39]-[43] are relied on. This is a case it is submitted in which the requirements of r 12 cannot be relaxed or waived; as Dawson J put it in Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 259, either there was compliance or there was not. 41 It is necessary to draw a distinction between the jurisdictional requirement of s 459G(3) and compliance with the procedural rules of this Court. The rules relevantly seek to facilitate the operation inter alia of s 459G(3), but they can never expand or modify its jurisdictional requirement. In this case either the affidavit satisfies the statutory requirement of s 459G(3)(a) or it does not. That is determined on the proper construction of s 459G. I have indicated in these reasons my view that in this case the affidavit of Mr Farbenbloom did not fail to meet that jurisdictional requirement of the Corporations Law. 42 A distinct issue is whether the requirements of Rules of this Court applicable to an affidavit of this nature were complied with. As Santow J succinctly put the issue in Callite Pty Ltd v Adams [2001] NSWSC 52 at [5]: ‘It is clear that while non-compliance with the Corporations Law rules is a matter for the court to consider in determining whether or not to grant any dispensation, that question is quite distinct from whether the affidavit meets the description in s 459G(3); that is to say, is it ‘an affidavit supporting the application’ …’ 43 Turning to the word ‘must’ in O 81G, r 12(1) and (2) to determine its intended effect, it is necessary, of course, to have regard not only to the actual words in each subrule but also to the context and the scope and object of the rule, and of the rules generally. It is the case that O 81G is replete with the word ‘must’. It is applied to a wide variety of requirements and procedures, including, for example, in r 11 procedural steps to be taken by the Principal Registrar, and in r 17 the filing of a Notice of Appearance before appearing at the hearing of an application (a procedure with which the appellant failed to comply before the Master but which he did not take to be essential and extended time for compliance). -- 39 of 81 -- 40 44 Of course the word ‘must’, without more, would suggest that compliance is essential. But by O 81G, r 1(2) the ordinary rules of the court are applied to the Order, so far as they are not inconsistent with the Corporations Rules comprised in O 81G. By RSC, O 2, r 1 non-compliance with a rule is an irregularity, not a nullity, and the Court is empowered to dispense with compliance entirely or to make such order as it thinks fit in cases of noncompliance. Order 81G, r 8 provides for extensions and abridgments of time for compliance with the Rules in that Order unless the Corporations Law, the ASIC Law or the Order otherwise provides and r 5(1) allows for substantial compliance with prescribed forms to be sufficient even though the relevant rules of the Order provide that process ‘must’ be in accordance with the applicable form. 45 Looking to the general context, O 81G is in aid of the Corporations Law. There is nothing in that law which would suggest a legislative intention that requirements such as those in r 12 would be essential to the validity of an application. To the extent that r 12(1) may require, in a particular case, something additional to or different from s 459G(3)(a) to be included in the supporting affidavit, it is not apparent why that additional or different requirement should be essential to the validity of the application. While r 12(2) seeks to ensure that, by the annexure of a record of a recent company search, the court has current relevant information when it deals with the application, it is not apparent why it should be essential for that search to be annexed to the affidavit itself, non-compliance being fatal to the application. Compliance by the time of the hearing would meet the objective. 46 For my part I see no reason to discern an intention in r 12 that the word ‘must’ should exclude the operation of r 8 or the general dispensing power in RSC, O 2, r 1. In my view, in its context the word ‘must’ in r 12 is to be understood as subject to r 8 and also to the general dispensing power. 47 I note that Santow J had to deal with this question in the context of essentially identical rules in Bell Construction Services Pty Ltd v Form-Kwip Building Services Pty Ltd [2001] NSWSC 73 in a context where, as here, there had been a failure to annexe to the supporting affidavit the company search required by the New South Wales equivalent to O 81, r 12(2). His Honour said (at [14]): ‘Otherwise, as I said in Callite, what s 459G makes mandatory in this context is that there be ‘an affidavit supporting the application’. That means establishing the case for the application, being usually that there is a genuine dispute. The company search required by the Rules is irrelevant to that matter. It cannot be said that a requirement in the Rules, here only recently introduced, -- 40 of 81 -- 41 thereby ipso facto acquires the status of a mandatory requirement for s 459G purposes. That would not be congruent with the fact that the requirements of the Rules remain dispensable by the court. Section 459G of the Corporations Law does not interfere with that. To suppose otherwise would carry the absurd implication that whatever requirements may from time to time be introduced by the Rules, noncompliance with such Rules coupled with a failure to obtain dispensation within the 21 days allowed by s 459G of the Corporations Law would be fatal. This is more especially as dispensation can always be obtained afterwards in a proper case. (I should interpolate that I do now give that dispensation, on terms that the omitted search be filed with an affidavit within seven days.) Section 459G of the Corporations Law in its mandatory requirements demands an affidavit meeting the description of an ‘affidavit supporting the application’, not an affidavit in all respects conforming to the Supreme Court Rules 1970 (NSW) from time to time.’ As is apparent from the passage quoted his Honour had no hesitation in exercising the general dispensation power of the Rules in that case despite the use of the word ‘must’ in the particular subrule in question. 48 In reaching this view Santow J considered but rejected a submission, repeated on this appeal, that the decision of this Court in Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338 required the contrary conclusion. Robowash dealt with a different issue from the present. There had been a deficiency in compliance with the requirement of s 459G(3)(b) of the Corporations Law that ‘a copy of” the supporting affidavit be served. What was served was an incomplete affidavit; pages had been omitted from an annexure. I would respectfully adopt Santow J’s views as expressed (at [9]-[13]) of his reasons and would not wish to add anything further on that matter. 49 For these reasons I am not persuaded that in the present case, there having been compliance with s 459G(3), it was beyond the powers available to the Master to allow late compliance with the requirement of O 81G, r 12(2) with respect to the company search or to allow the late introduction of further facts and evidence in support of the genuine dispute raised in the supporting affidavit. In my view the circumstances were such that the steps he took in this regard were open to him in the proper exercise of the discretionary powers available to him.” [211] The applicant relies on this reasoning as supporting its contention that any irregularities of form may be corrected by a grant of leave when the affidavit is sought to be relied upon in evidence at the hearing. Accordingly, the applicant submits that -- 41 of 81 -- 42 the failure to apply for leave within the 21 day period is not fatal to the applicant bringing the application as the affidavit has been filed. [212] Further, the applicant submits that to the extent that the Court finds there is an irregularity in respect of the first Kindermann affidavit and the Smith affidavit, leave can be granted pursuant to r 436(2) UCPR. On that leave being granted, the applicant is able to rely on the affidavits the subject to the grant of leave. Consideration [213] It is convenient to approach the preliminary issues as follows: (a) Are the identified defects in the first Kindermann affidavit irregularities of form or do they go to jurisdiction under s 459G of the Corporations Act? Namely: (i) Use of the Victorian Court heading and format under the Victorian Supreme Court Rules; (ii) The omission of the matter number; and (iii) The omission of the perjury warning. (b) If they are irregularities of form, can leave be granted outside the 21 day statutory period? (c) Are the identified defects in the Smith affidavit irregularities of form or do they go to jurisdiction under s 459G of the Corporations Act? Namely: (i) The omission of the matter number; and (ii) The inclusion of pages 633 to 663 of the exhibit. (d) If these are irregularities of form, can leave be granted outside the 21 day statutory period? (e) In respect of the incorrect reference to “s 459J(b)” of the Corporations Act in the originating application and the nature of the applicant’s second ground not being expressly identified in the first Kindermann affidavit or the Smith affidavit, is this a defect going to jurisdiction such that there is not a valid application under s 459G of the Corporations Act? First Kindermann affidavit [214] The first Kindermann affidavit was prepared in the Victorian Court form. This is evident from an inspection of the document as it has two parallel lines immediately under the Court heading and title of the document. The details of the filing party are contained between these two lines. [215] In the usual Queensland UCPR court form information of a similar nature is found in the footer of the document. That is at the bottom of the page usually beneath one horizontal line. [216] The use of the Court form under the Victorian Supreme Court Rules is permitted under rule 2.6 of the UCPR Corporations Rules. This is not an issue going to -- 42 of 81 -- 43 jurisdiction. Further, this is not an irregularity in form and, accordingly, it is not necessary to consider the issue of whether leave is required. [217] The matter number appears to have been handwritten on the service copy of the originating application but was not added to the service copy of the first Kindermann affidavit. The Court seal was on the originating application, the first Kindermann affidavit and the Smith affidavit. [218] The affidavit of Daniel Joubert sworn 2 February 2022 states at [4]: “The electronic copies of the originating application and affidavits attached to my service emails I refer to at paragraph 3 above were all sealed with the seal of the Supreme Court Office Brisbane. The originating application attached to my first service email showed the Queensland Supreme Court proceeding number on the cover page, as did the subject line to each of my three emails.” [219] Rule 964 of the UCPR deals with the matter number, described as the “serial number”, as follows: “(1) This rule applies to proceedings started by claim, application or notice of appeal. (2) The registrar must keep a separate file for each proceeding and give the proceeding a distinguishing number. (3) The court serial number must start with - (a) for the Supreme Court – the letter ‘S’ … (4) Each document filed in the proceeding must – (a) be placed on the relevant file; and (b) show the court serial number for the proceeding at the top right-hand corner of the first page. (5) Unless the document starts a proceeding or is filed with a document starting a proceeding, the party filing the document must insert the serial number on the document.” [220] Rule 371 of the UCPR states: “(1) A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.” [221] Further, r 436 of the UCPR specifically in respect of affidavits provides: “(1) An affidavit may, unless the court orders otherwise, be filed despite an irregularity in form, including a failure to use the approved form. (2) An affidavit may, with the leave of the court, be used despite an irregularity in form and the affidavit must have on it a -- 43 of 81 -- 44 memorandum by the court or the appropriate associate or clerk that it was used by leave. (3) An affidavit used under subrule (2) is afterwards taken as a regular affidavit.” [222] Section 459G of the Corporations Act requires within the 21 day statutory period that: (a) “an affidavit supporting the application is filed with the court”; and (b) “a copy of the supporting affidavit” be served together with the application. [223] Here, the affidavit has been accepted as filed and the matter number has been added at the Registry and the Supreme Court seal affixed to the affidavit. There is no irregularity in respect of the filed copy of the first Kindermann affidavit. [224] In respect of the service copy of the first Kindermann affidavit, it bears the Supreme Court seal but not the matter number. The question then needs to be asked: is this a “copy of the supporting affidavit” for the purposes of s 459G of the Corporations Act. [225] The meaning of “copy” in this context has been considered in Craneford Nominees Pty Ltd v VGC Co-operative Ltd (2012) 262 FLR 283. I agree with the analysis of Stanley J as to the requirements of a “copy” in the context of s 459G of the Corporations Act. While his Honour was considering a copy of the application, the comments are equally relevant to the supporting affidavit. [226] Applying the analysis to the current factual circumstance: (a) The copy document reflects the form of the affidavit accepted by the court within the 21 day period. (b) The copy document evidences the fact of the court’s acceptance by the seal of the court. (c) There is no other “important information” that is required to be included in the affidavit of a similar nature to the return date which is recorded in the originating application. [227] Further, Stanley J commented on the purpose of the provision relevantly as follows: “[18] The requirement in s 459G(3)(b) for a service copy of the application and the supporting affidavit on the person who served the statutory demand exists to ensure that person has proper notice that curial proceedings have been commenced by the person subject to the statutory demand, the basis upon which that person asserts that a genuine dispute exists in relation to the debt constituting the statutory demand, and the date upon which those proceedings are to be heard by the court. [19] Identification of Parliament’s purpose in imposing the requirement for service of a copy of the application and the supporting affidavit on the person who served the statutory demand, does not require that the copy of the application required to be served pursuant to s 459G(3)(b) is in all respects an exact copy of the application filed in the court. To construe -- 44 of 81 -- 45 the provision in that way is unnecessary for the purpose of fulfilling the underlying purpose and policy of the Act. Worse than that, to impose such a requirement might frustrate the operation of the Act in circumstances, not unlike the present case, where a party has served the copy of the application returned to it by the court registry, ignorant of marks or notations that may have been made on the filed document by the registry staff, only to find that by reasons of this fact alone, it has failed to invoke the court’s jurisdiction to obtain a determination of whether proper grounds exist to set aside the statutory demand. In my view, this is not what Parliament intended by the requirement to serve a copy of the application”. [228] These comments apply equally in respect of the copy of the supporting affidavit. [229] The respondent relies on the decision of LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd40 in support of her contention that the omission results in the document served not being “a copy of the supporting affidavit”. However, the omission in that case was of a different character to here. [230] Holmes J stated at [9]: “I can see no reason not to adopt the reasoning of Santow J in Benonyx. It is not necessary for me to embark on any attempt at delineation of what is required to constitute a “copy” for the purposes of s 459G(3). It is patent here that the documents served failed to reflect the original application in a matter of substance: it did not contain the return date for the application.” [231] The reasoning of Santow J in Benonyx relevantly was that the point of service was to give the party served proper notice of the proceedings for which an attendance was required and this was not achieved where the return date was not included in the originating application within the 21 day period. The return date was provided after the 21 days but this could not remedy there not being adequate service of the originating application for s 459G(3)(b). [232] Here the originating application contained the necessary information of the matter number and the return date. All documents had the Supreme Court seal affixed. In these circumstances, “a copy of the supporting affidavit” being the first Kindermann affidavit has been served in compliance with s 459G(3)(b). No lack of jurisdiction arises on respect of this issue. [233] It is then necessary to consider whether there is an irregularity in form. The original first Kindermann affidavit on the court file has the matter number inserted on it. There is no irregularity in respect of that document. Rule 964(5) reflects that documents filed to commence proceedings will not have the matter number inserted already. On filing the matter number was handwritten on the first Kindermann affidavit. 40 [2004] QSC 134. -- 45 of 81 -- 46 [234] The affidavit that is sought to be read as evidence in support of the application is the original affidavit on the court file. There is no irregularity in form in respect of the matter number as it is included on the original first Kindermann affidavit on the court file. Accordingly, leave is not required pursuant to r 436 UCPR for the affidavit to be used in evidence. [235] The final issue to be considered in respect of the first Kindermann affidavit is the omission of the perjury warning. This omission is in the original filed affidavit as well as the service copy. No issue arises in respect of the service copy as it is in the same form in this respect as the original. [236] The following facts are relevant: (a) The perjury warning was included in the Victorian Oaths and Affirmations Regulations at the relevant time. (b) Order 43 of the Victorian Supreme Court Rules did not mandate the inclusion of the perjury warning. The first Kindermann affidavit meets the requirements in Order 43 of the Victorian Supreme Court Rules. (c) Further, the Victorian Corporations Rules did not mandate the inclusion of the perjury warning. (d) Whilst the affidavit template on the Victorian Supreme Court website included the perjury warning it was not a prescribed form for the purposes of the relevant Victorian Supreme Court Rules. (e) Part 3 of the Victorian Oaths Act contains s 23 which provides that an affidavit “may be in the prescribed form”. The Victorian Oaths and Affirmations Regulation contains at Schedule 1 a form of affidavit containing the perjury warning. Regulation 7 provides that schedule 1 contains the prescribed form for the purposes of s 23 of the Victorian Oaths Act. (f) The first Kindermann affidavit meets the requirements for an affidavit in Victoria contained in Part 3 of the Victorian Oaths Act to the extent that they are mandatory. (g) As the form in Schedule 1 of the Victorian Oaths and Affirmations Regulations is not mandatory, it was not mandatory for the perjury warning to be included in the affidavit. (h) The omission of the perjury warning does not prevent the document being an affidavit for the purposes of the Victorian Supreme Court Rules or the Victorian Oaths Act. (i) Section 29 of the Victorian Oaths Act provides that an affidavit is not invalid as a result of an inadvertent non-compliance with a requirement in Part 3 “that does not materially affect the nature of the affidavit”. (j) Section 29 has no direct application here as there is no non-compliance with a requirement of Part 3. It does however support the conclusion that irregularities do not invalidate an affidavit being an affidavit unless they “materially affect the nature of the affidavit”. -- 46 of 81 -- 47 [237] For the purposes of s 459G of the Corporations Act, the first Kindermann affidavit is a valid affidavit which has been filed. Therefore, no jurisdiction issue is made out in respect of this issue. [238] It is then necessary to consider whether it is an irregularity of form for which leave is required to rely on the affidavit in evidence. If leave is required the applicable rule would be r 436(2) of the UCPR. [239] It is also not appropriate to conclude that the omission of the perjury warning is an irregularity of form. There is no irregularity as it was permissible for there to be some variances from the form so long as the mandatory requirements were met. Here the mandatory requirements in Part 3 of the Victorian Oaths Act were met together with the requirements in Order 43 of the Victorian Supreme Court Rules. [240] There is no irregularity of form and leave to rely on the affidavit is not required in respect of the omission of the perjury warning. [241] As a consequence of the above findings and reasoning, in respect of the issues identified in the first Kindermann affidavit: (a) There is no jurisdiction issue established in respect of s 459G of the Corporations Act. (b) There are no irregularities of form requiring consideration of an exercise of leave under r 436(2) of the UCPR. (c) Accordingly, it is not necessary to determine whether leave has to be exercised within the 21 day statutory period. Smith affidavit [242] There are two issues to be considered in respect of the Smith affidavit: (a) The omission of the matter number. (b) The inclusion of the document at pages 633 to 663 of the exhibit. [243] The considerations set out above in respect of the omission of the matter number in the first Kindermann affidavit apply equally in respect of the Smith affidavit. [244] Without repeating those considerations here, I incorporate that reasoning in respect in respect of the omission of the matter number on the service copy of the Smith affidavit. [245] In these circumstances, I find that “a copy of the supporting affidavit” being the Smith affidavit has been served in compliance with s 459G(3)(b) of the Corporations Act. No lack of jurisdiction arises on respect of the issue of the omission of the matter number. [246] There is no irregularity in respect of the original Smith affidavit on the court file as the matter number has been inserted on it. Accordingly, leave is not required pursuant to r 436 of the UCPR for the affidavit to be used in evidence. -- 47 of 81 -- 48 [247] The second issue that arises in respect of the Smith affidavit relates to the exhibit at pages 633 to 663 of the exhibit to the Smith affidavit. The respondent describes these pages as an “additional exhibit”. [248] An alternative characterisation is that the affidavit and index to the exhibit bundle only partially describe the document which is exhibited, being pages 21 to 663. An examination of the full document which is exhibited shows that the document comprises the summary page and then the ASIC search and the Credit Report, both of which are shown on the summary page. [249] The Smith affidavit was executed in Brisbane and the UCPR applies to the requirements of the affidavit. Rule 435 of the UCPR deals with exhibits to affidavits. Rule 435 relevantly states: “(1) A document to be used with and mentioned in an affidavit is an exhibit. … (3) A group of different documents may form 1 exhibit. … (5) An exhibit to an affidavit must have – (a) a letter, number or other identifying mark on it; and (b) a certificate in the approved form on it and bound with it. (6) The certificate must be signed by the person who made the affidavit and the person who took the affidavit. … (9) Subrules (10) and (11) apply if – (a) an exhibit to an affidavit is comprised of a group of documents; or (b) there is more than one documentary exhibit to an affidavit. (10) The documents are to be presented in a way that will facilitate the court’s efficient and expeditious reference to them. (11) As far as practicable – (a) the documents are to be bound in 1 or more paginated books; and (b) a certificate is to be bound – (i) if there is 1 book – at the front of the book; or (ii) if there is more than 1 book – at the front of each book dealing with the exhibits in the book; and (c) an index to each book is to be bound immediately after the certificate. …” -- 48 of 81 -- 49 [250] Rule 436 of the UCPR further provides that an affidavit may be filed despite an irregularity in form and leave may be granted to use the affidavit. Upon leave being granted the affidavit is regularised. [251] Here the document is the full search result as indicated in the internal numbering from page 1 to 643 (being pages 21 to 663 of the exhibit). [252] The document is described at [6] of the affidavit as follows: “On 20 August 2019, I caused to be carried out a search of the records maintained by ASIC in relation to the Applicant. A copy of the results from that search commences on page 21 of the Bundle”. [253] Further, the “Index of Exhibits to the Affidavit of Peter Andrew Smith” records from page 21 the document described as: “Results of search of the records maintained by ASIC in relation to the Applicant dated 20 August 2019”. [254] The description of the document from page 21 onwards of the bundle of exhibits contained in the affidavit and the index only partially describes that document. [255] A more complete description of the document commencing at page 21 would be consistent with the following words in underlining added: (a) “On 20 August 2019, I caused to be carried out a search to obtain a report incorporating both a search of the records maintained by ASIC and a credit report in relation to the Applicant. A copy of the results from that search commences on page 21 of the Bundle”. (b) “Results of search of the records maintained by ASIC together with a credit report in relation to the Applicant dated 20 August 2019”. [256] In LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd,41 Holmes J considered the effect of an affidavit accompanying a statutory demand not being signed on every page in non-compliance with the UCPR. In that case it was submitted that this was more than an irregularity of form and the document was not an affidavit at all. [257] Her Honour concluded: “[18] More fundamentally, I would not regard the failure to sign each page of the affidavit as rendering it without effect….” [258] Applying this reasoning, the partial description of the document does not alter the affidavit and the exhibit being in the nature of an affidavit. It was filed within the 21 day statutory period. The service copy in respect of this issue was the same as the filed copy. Therefore, no issue arises as to non-compliance with s 459G(3) of the Corporations Act. [259] It is then necessary then to consider whether there has been an irregularity in form and whether leave to rely on the affidavit, including the exhibit, is required. 41 [2004] QSC 134. -- 49 of 81 -- 50 [260] I consider that the full document was intended to be included in the exhibit and the correct characterisation of the irregularity is that the description of the document in the affidavit and the index is only a partial description. This is an irregularity of form. Leave may be given under r 436 of the UCPR to regularise the affidavit. [261] To the extent necessary, at the hearing the applicant made an application for leave to rely on the Smith affidavit. [262] I consider that it is appropriate to grant leave to the applicant to use the Smith affidavit in evidence despite the irregularity and the affidavit will be marked to reflect that leave was granted on the date of these reasons to use the affidavit despite the irregularity. [263] The remaining issue is whether the grant of leave at this stage results in a lack of jurisdiction under s 459G(3) of the Corporations Act. [264] Leave may be granted to use an affidavit outside of the 21 day statutory period provided that the affidavit was filed and served within the 21 day statutory period. That is the case here. Financial Solutions Australasia Pty Ltd v Predella Pty Ltd42 is authority for this conclusion. [265] Accordingly, there is no jurisdiction issues pursuant to s 459G(3) of the Corporations Act in relation to the Smith affidavit. [266] In any event, the applicant has indicated it does not seek to read and rely on pages 633 to 663 of the exhibit. [267] Affidavits filed in support of an application are always subject to evidence rulings and also being read and relied upon by a party. The ability to do this is not limited to the 21 day statutory period. [268] Accordingly, for the purposes of the substantive hearing, pages 633 to 663 of the exhibit to the Smith affidavit are not in evidence. The Credit Report cannot therefore be taken into account in determining the application but the balance of the affidavit and the exhibit is in evidence. Section 459J(1)(b) ground and supporting affidavit [269] The final preliminary issue to be considered is the respondent’s contention that the incorrect reference to “s 459J(b)” in the originating application and the Smith affidavit not clearly identifying the ground relied upon results in non-compliance with s 459G of the Corporations Act so that the Court does not have jurisdiction. [270] The originating application refers to an application under s 459J of the Corporations Act in the opening sentence: “This application is made under ss 459G, 459H and 459J of the Corporations Act 2001 to set aside a statutory demand”. This is sufficient for an application under s 459J of the Corporations Act. 42 (2002) 26 WAR 306; [2002] WASCA 51. -- 50 of 81 -- 51 [271] It also states: “On the facts stated in the supporting affidavits, the applicant claims: … 2. Further, or in the alternative, an order under section 459J(b) of the Corporations Act 2001 that the Statutory Demand be set aside.” [272] The omission of sub-section (1) in paragraph 2 is not in itself fatal. Clearly, the relief sought is an order under s 459J and there are only two available limbs. The only sub- paragraph (b) is in sub-section (1). In any event, the reference to s 459J is sufficient for the purposes of the originating application. [273] The requirements of s 459G also need to be complied with and the application needs to have a “supporting affidavit” filed and served. [274] The complaint raised by the respondent can be characterised as the Smith affidavit was not a “supporting affidavit’ as required as it did not sufficiently identify the relevant ground of review. [275] The applicant’s second ground is “some other reason” under s 459J(1)(b) of the Corporations Act. The specific basis that the applicant raises is that the applicant was solvent when the demand was made (and remains so) and the respondent has no reasonable basis for contending that the applicant was or is insolvent. [276] In accordance with the statement of principle in Sceam Construction Pty Ltd v Clyne43 the relevant inquiry is whether the supporting affidavit raised expressly or by necessary inference or by a reasonably available inference the ground for setting aside the statutory demand raised by the applicant. [277] Here, the Smith affidavit does not expressly raise the second ground. The Smith affidavit does contain in the body of the affidavit and the exhibit evidence as to the applicant’s statutory profit and cash profit. The reasonable inference from the subject matter of the evidence is that the ground relates to the financial position of the applicant, more specifically its solvency. [278] The level of detail set out in the applicant’s written submissions in the substantive application would not be found in an affidavit. An affidavit contains evidence; not submissions or an outline of the arguments. [279] Further, the question is not what the recipient of the supporting affidavit understood. It is the whether the ground being relied upon was a reasonably available inference from the evidence contained in the supporting affidavit. [280] Here, the Smith affidavit contained the financial results for the applicant for the six months to 31 March 2019 and the ASIC search results (leaving aside the Credit Report which is not in evidence as discussed above). 43 [2021] VSCA 270 at [36]. -- 51 of 81 -- 52 [281] I am satisfied that the Smith affidavit as the supporting affidavit in respect of the applicant’s second ground sufficiently supported the reasonably available inference that the “some other reason” relied upon was the solvency of the applicant. [282] Accordingly, the Court has jurisdiction to consider the second ground raised in the originating application pursuant to s 459J of the Corporations Act. [283] It is now necessary to consider the substantive application to set aside the statutory demand. Substantive application to set aside the statutory demand [284] The applicant’s application to set aside the statutory demand has two distinct limbs: (a) In relation to s 459H, the applicant relies upon the contemporaneous correspondence (exhibited to the affidavits) between the ANZ and the respondent as not being consistent with the agreements alleged in the statutory demand. The applicant contends that this evidence establishes that there is a genuine dispute about the existence of the debt claimed in the statutory demand. (b) In relation to s 459J(1)(b), the applicant relies upon the evidence filed in support of the application as establishing that the applicant was solvent when the statutory demand was made, and further remains so now. The applicant contends that the respondent has no reasonable basis for contending the applicant was or is insolvent. Further, the applicant contends that a winding up order will not be made against the applicant if it fails to comply with the statutory demand and in the circumstances, the statutory demand is an abuse of process and should be set aside. The relevant legal principles in an application to set aside a statutory demand [285] Section 459G states as follows: “(1) A company may apply to the Court for an order setting aside a statutory demand served on the company. (2) An application may only be made within the statutory period after the demand is so served. (3) An application is made in accordance with this section only if, within that period: (a) an affidavit supporting the application is filed with the Court; and (b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.” [286] Further, s 459H of the Corporations Act states: “(1) This section applies where, on an application under section 459G, the Court is satisfied of either or both of the following: -- 52 of 81 -- 53 (a) that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates; (b) that the company has an offsetting claim.” [287] Section 459H(2) deals with a calculation of the substantiated amount where there is an offsetting total. This section also contains relevant definitions. There is no claim in respect of an offsetting claim and accordingly, that subsection is not relevant to these proceedings. [288] Section 459J of the Corporations Act states: “(1) On an application under section 459G, the Court may by order set aside the demand if it is satisfied that: (a) because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or (b) there is some other reason why the demand should be set aside. (2) Except as provided in subsection (1), the Court must not set aside a statutory demand merely because of a defect.” Genuine dispute [289] The onus of establishing the existence of a genuine dispute is on the applicant.44 [290] In respect of what is the correct approach to a genuine dispute, Bowskill J (as her Honour then was) stated in SGR Pastoral Pty Ltd v Christensen45 at [51]: “… The threshold is not high or demanding; a genuine dispute means there must be a plausible contention requiring investigation; and it is only if the applicant’s contentions are so devoid of substance that no further investigation is warranted that the applicant will fail. The court is not called on to determine the merits of, or to resolve, the dispute.” [291] Jackson J has also commented on the correct approach to this issue and in Australian Communication Exchange Ltd v Pilot Partners P/L; Premier Fasteners P/L v Pilot Partners P/L; Bridgeman Agencies P/L v Pilot Partners P/L; Accesscomm P/L v Pilot Partners P/L; Direction Fund Limited v Pilot Partners P/L,46 stated as follows: “[18] Nevertheless, the requirement that any dispute must be genuine entails that the court must examine the facts alleged to see whether the threshold of a genuine dispute is crossed. … [19] An applicant bears the onus of establishing the existence of a genuine dispute on the balance of probabilities.47 44 Project 88 TPF Pty Ltd v Open Projects Group Pty Ltd [2020] QSC 167 at [76] per Ryan J. 45 (2019) 2 Qd R 334. 46 [2017] QSC 176. 47 Building Solutions & Waterproofing Pty Ltd v Robin H Wright Pty Ltd [2017] QSC 110, [16]. -- 53 of 81 -- 54 Courts have sought to articulate the nature of the inquiry involved. A recent example in the Court of Appeal of Victoria in Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd is as follows: ‘In determining an application under s 459G, the Court’s function is to identify whether a genuine dispute or offsetting claim exists, not to determine any such dispute or claim. This means that the applicant under s 459G is required only to establish a ‘plausible contention requiring investigation’ of the existence of a genuine dispute or claim. The application will fail only if the contended dispute or claim is ‘so devoid of substance that no further investigation is warranted’. The resolution of the application should generally not involve the deciding of disputed questions of fact, but might require determination of short points of law.”48 [20] Courts have also sought to articulate what is required by way of evidence to satisfy the court that there is a genuine dispute. A recent example in the Court of Appeal of NSW, Ligon 158 Pty Ltd v Huber, says ‘about the forensic approach to be adopted in s 459G proceedings: (1) While there must be evidence showing a serious question to be tried or an issue deserving of a hearing that evidence cannot and need not conclusively prove the claim or otherwise be incontrovertible or substantially non-contestable. (2) The short time allowed by s 459G(2) for the preparation of the affidavit supporting the claim for an order setting aside the demand militates against the presentation of the fullest and best evidence in some cases. (3) In determining whether there is evidence of a genuine dispute regarding the debt, the court is generally not concerned to engage in an enquiry as to the credit of the deponent of the supporting affidavit. At the same time, it is not required to accept uncritically every statement in the affidavit that is inconsistent with undisputed contemporary documents, is inherently improbable, does not have sufficient prima facie plausibility to merit further investigation or is an assertion of facts unsupported by evidence. (4) Inconsistent contemporaneous documents are not necessarily sufficient to defeat the company’s challenge even though they might pose difficulties 48 (2017) 118 ACSR 592, 605 [47]. -- 54 of 81 -- 55 for the ultimate proof of the case that it would advance if the dispute were litigated’.”49 [292] Associate Justice Hetyey in Syncordia Group Pty Ltd v Nexia Melbourne Pty Ltd50 helpfully summarises the principles of what constitutes a genuine dispute: “[16] The following principles delineate what constitutes a genuine dispute for the purpose of s 459H(1) of the Act: (a) for a dispute to be ‘genuine’ it must be ‘bona fide and truly exist in fact’;51 (b) ‘the grounds for alleging the existence of a dispute … [must be] real and not spurious, hypothetical, illusory or misconceived’;52 (c) the dispute must have a ‘sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion, and sufficient factual particularity to exclude the merely fanciful or futile. … Something ‘between mere assertion and the proof that would be necessary in a court of law’ may suffice’;53 (d) a genuine dispute may involve a ‘plausible contention requiring investigation’ and raise the same sort of considerations as the ‘serious question to be tried’ test that applies in the case of interlocutory injunctions;54 (e) the Court should not uncritically accept statements about an alleged genuine dispute which are ‘equivocal, lacking in precision, inconsistent with undisputed contemporary documents … or inherently improbable …’;55 (f) if the dispute appears to be something ‘merely created or constructed in response to the pressure represented by the 49 (2016) 117 ACSR 495, 498 [9]; and see Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601, 608-613 [32]-[55]. 50 [2021] VSC 732. 51 Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452, 464 (Northrop, Merkel and Goldberg JJ) (‘Spencer Constructions’), cited with approval by the Victorian Supreme Court of Appeal in Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 330 [49] (Kyrou, Ferguson and Kaye JJA) (‘Malec’). 52 Spencer Constructions 464, cited with approval by the Victorian Supreme Court of Appeal in Malec [49] (Kyrou, Ferguson and Kaye JJA). 53 TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67, 79 [71] (Dodds- Streeton JA) (‘TR Administration’); Malec [49] (Kyrou, Ferguson and Kaye JJA). 54 Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601, 608 [31] (Beazley P, Meagher and Gleeson JJA) (‘Britten-Norman’); Malec [48] (Kyrou, Ferguson and Kaye JJA). 55 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785, 787 (McClelland CJ in Eq), cited with approval by the Victorian Supreme Court of Appeal in TR Administration 78 [64] (Dodds-Streeton JJA) and Malec [50] (Kyrou, Ferguson and Kaye JJA). -- 55 of 81 -- 56 service of the statutory demand’, then it is not advanced in good faith and will not be regarded as genuine;56 and (g) whilst the underlying nature of the dispute about the existence of a debt ‘must be exposed’, the Court will not deal with the merits and nothing of substance will be decided.57” Some other reason [293] The applicant submits that s 459J(1)(b) is a remedial provision which empowers the Court to address cases that do not come within ss 459H or 459J(1)(a) of the Corporations Act. [294] In considering s 459J(1)(b), Moshinsky J in Grocon Constructors (Qld) Pty Ltd v Dexus Funds Management Limited as Trustee for the Dexus 480Q Trust (No 2)58 summarised the relevant principles as follows: “[14] A statutory demand will be set aside for ‘some other reason’ under s 459J(1)(b) of the Corporations Act where the conduct of the creditor in issuing the statutory demand is unconscionable, an abuse of process, or gives rise to substantial injustice. Conduct falling within this category includes using the statutory demand process by a creditor as a debt collection device. The reasons for this were explained by Martin CJ (with whom Owen and Miller JJA agreed) in Createc Pty Ltd v Design Signs Pty Ltd (2009) 71 ACSR 602 at [2] as follows: ‘The issue of the statutory demand, and the appeal from the decision of the master setting it aside, reflect a fundamental misconception as to the purpose of the statutory demand process created by Pt 5.4 of the Corporations Act. That purpose is to provide a means whereby the insolvency of a company may be established for the purposes of an application to wind up that company. Its purpose is not to provide a means whereby those claiming a genuinely disputed debt can avoid the obligation of establishing their entitlement to that debt in a court of appropriate jurisdiction by placing commercial pressure on the party resisting payment. There is a clear inference from the evidence that Createc’s purpose in issuing the statutory demand was the improper purpose of using the statutory demand process to enforce payment of a debt which it knew to be genuinely disputed. That is an abuse of process’. [15] Martin CJ also stated, at [48]-[50]: 56 Creata (Aust) Pty Ltd v Faull (2017) 125 ACSR 212, 224 [47] (Barrett AJA, with Gleeson and White JJA agreeing) (‘Creata’). 57 Quadrant Constructions Pty Ltd v HSBC Bank Australia Ltd [2004] FCA 111 [4] (Finkelstein J). See also Malec [48] (Kyrou, Ferguson and Kaye JJA). 58 [2019] FCA 1117. -- 56 of 81 -- 57 ‘48 Following the introduction of Pt 5.4, doubts were expressed as to whether the statutory procedures provided an exclusive code for the resolution of proceedings brought as a result of the issue of a statutory demand. However, in David Grant & Co Pty Ltd v Westpac Banking Corp (1995) 184 CLR 265; 131 ALR 353; 18 ACSR 225; [1995] HCA 43 (David Grant), Gummow J, with whom the other members of the High Court agreed, expressed the following view (at CLR 279; ALR 362; ACSR 234): ‘It also may transpire that a winding-up application in respect of a solvent company is threatened or made for an improper purpose which amounts to an abuse of process in the technical sense of that term, as explained in Williams v Spautz. However, in an appropriate case, injunctive relief may then be available to the company in a court of general equity jurisdiction.’ [Footnotes omitted] 49 Since that decision, it has generally been accepted that the court retains a residual jurisdiction to restrain reliance on the statutory demand procedure on the ground of an abuse of process: see House of Tan Pty Ltd v Beachiris Pty Ltd (1996) 21 ACSR 527 at 528: SMEC at [35]; Roberts at [54]-[58]; and State Bank of New South Wales v Tela Pty Ltd (No 2) (2002) 188 ALR 702; [2002] NSWSC 20 at [5]. In Roberts, the jurisdiction was exercised on the grounds of impropriety of purpose, and a winding- up application was dismissed with costs. Similarly, in Old Kiama Wharf Co Pty Ltd v DCT (2005) 55 ACSR 223; [2005] NSWSC 929, an application to set aside a statutory demand was upheld because the court concluded that the process was being used to ‘attempt to apply pressure to a taxpayer to force payment of a debt’: at [42]. 50 Adopting the criterion from Williams v Spautz (1992) 174 CLR 509; 107 ALR 635; [1992] HCA 34 (Williams), suggested by Gummow J in David Grant, there will be an abuse of process if the purpose of the party issuing the statutory demand is not the purpose of pursuing the statutory demand to wind up the company on the ground of insolvency, but rather to use the process as a means of obtaining an advantage for which the process is not designed or to obtain some collateral advantage beyond what -- 57 of 81 -- 58 the law offers – such as the application of pressure to compel payment of the disputed debt’.” [295] As to the timing of the considerations under s 459J(1)(b), the decision of Barrett J in Tatlers.com.au Pty Ltd v Davis59 provides assistance. The factual circumstances of that case involved a change in the position between the time of issue and service of a statutory demand. Barrett J stated: “[11] The particular sequence of events raises a question of timing relevant to s 459J(1)(b), that is, whether the ‘other reason why the demand should be set aside’ upon which a s 459G applicant relies must be seen to have existed when the statutory demand was served or whether regard is to be had to the position that exists when the court comes to consider the s 459G application. The defendant says that the first approach is the correct one. I do not accept that proposition. Section 459J(1)(b) is a provision that underwrites the statutory purposes reflected in Pt 5.4 as a whole. It was recognised as such by the Court of Appeal in Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24 where there was express approval of the observation to that effect by Bryson J in Portrait Express (Sales) Pty Ltd v Kodak (A/asia) Pty Ltd (1996) 132 FLR 300 …” [296] In Lifese Pty Limited v Lee Crane Hire Pty Limited,60 Edmonds J was considering an application to set aside a statutory demand where there was no evidence before the Court that the company was insolvent. There was also no submission, either orally or in writing, that the company was insolvent. In those circumstances, Edmonds J concluded, at [17], that “…the only inference open is that the issue of the statutory demand was for a collateral purpose, namely, to put pressure on the Company to pay the debt the subject of the statutory demand”. Further, Counsel for the respondent in that case “steadfastly refrained from addressing that proposition, even though [Edmonds J] expressly put it to him”. [297] His Honour went on to consider the relevant statements of principles that I have previously referred to in Createc Pty Ltd v Design Signs Pty Ltd as expressed by Martin CJ. Edmonds J concluded “On this ground alone, the statutory demand must be set aside”. [298] The respondent company in that case also made a submission that if the Court was not minded to dismiss the application then the Court had power to set aside a statutory demand on conditions that included the company pay the amount of the alleged debt into Court. While it was acknowledged that it was within the Court’s power to set aside a statutory demand on condition that the company commences proceedings, his Honour concluded: “[22] This exemplifies what the true purpose of Lee Crane Hire’s recourse to the statutory demand process is all about; to secure payment of the outstanding amounts alleged to be owing on the invoices referred to in the schedule to the statutory demand. It leaves undetermined, the liability of the Company on the 59 (2006) 203 FLR 473; [2006] NSWSC 1055. 60 [2012] FCA 302. -- 58 of 81 -- 59 invoices for hire charges for the months of September to December 2011 … for which a further statutory demand might be issued. So much exemplifies the inappropriateness of the procedure in a case such as this when alternative proceedings in another court could bring all matters in dispute between the parties to a head for resolution.” [299] The statutory demand was set aside in that case. [300] Doyle J in Reschke Pty Ltd v DiGiorgio Family Wines Pty Ltd61 stated in respect of this issue: “[59] While it is often said that it is an abuse of process to use the statutory demand facility as a means of debt collection, or to apply pressure, that will not always be so. … [60] While care is thus needed, it is accepted that impropriety of purpose may constitute ‘some other reason’ for setting aside a statutory demand under s 459J(1)(b).62 It is also accepted that the propriety or otherwise of a creditor’s use of a statutory demand will be determined by reference to the legislative scheme.63 [61] In an attempt to give some content to these general statements of principle, it seems to me that the mere fact that a purpose, or even the primary purpose, of a creditor in issuing a statutory demand is to apply some pressure, or to achieve recovery of the relevant debt, does not mean that the creditor has made an improper use of the statutory demand facility. … [62] However, impropriety may well arise if the creditor uses the statutory demand facility knowing that the debt is the subject of a genuine dispute, or knowing that the company is solvent. The reasons for this are obvious, and reflect the legislative scheme. In particular, it is apparent from the ability under s 459H of the Act to set aside a statutory demand if there is a genuine dispute as to the existence or amount of the relevant debt, that the legislative intention is that those debts and disputes be addressed through ordinary legal proceedings rather than through the statutory demand facility. Similarly, as a purpose of a statutory demand is to facilitate a presumption of insolvency for the purposes of a subsequent winding up application, it is clear that it is intended for use in a context in which there is some reason to think that the debtor company is, or might be, insolvent. The statutory demand procedure is not intended for use in the case of a company which the creditor knows is solvent, and hence in respect of which there is no prospect of any subsequent winding up application. 61 [2017] SASC 187. 62 Accordent Pty Ltd v RMBL Investments Ltd (2009) 105 SASR 62 at [58]. 63 Saferack Pty Ltd v Marketing Heads Australia Pty Ltd (2007) 214 FLR 393; Re Eastmark Holdings Pty Ltd [2011] NSWSC 1084 at [32]-[41]. -- 59 of 81 -- 60 [63] In summary, the statutory demand facility is intended for use in a context of potential insolvency, and in respect of debts which are not genuinely in dispute. There is no impropriety in using a statutory demand in that context, even if the initial and primary focus is an attempt to recover, or apply some pressure in relation to, such debts. However, there may be impropriety in using a statutory demand to recover, or apply pressure in relation to, debts that the creditor knows are genuinely disputed, or in a context where the creditor knows the company is solvent.” [301] In Syncordia Group Operations Pty Ltd v Nexia Melbourne Pty Ltd64 the issue of a debtor company’s solvency was also considered. Associate Justice Hetyey stated: “[48] The question of a debtor company’s solvency may become relevant in an application to set aside a statutory demand in the following limited circumstances: (a) where a statutory demand is served upon a company that is obviously solvent, the Court is entitled to take this into account in determining whether the issue of the statutory demand constitutes an abuse of process under s 459J(1)(b) of the Act;65 or (b) where the Court considers ‘[i]t may be easier to conclude that a dispute about a debt or an offsetting claim is ‘genuine’ when raised or made by a solvent company than in other cases’.66” [302] The decision in Paperlinx Ltd v Skidmore67 involved circumstances where the defendant obtained a judgment against the plaintiff for damages for wrongful dismissal and served a statutory demand for the full amount of the debt. The plaintiff company was “manifestly solvent” and paid the amount of the debt, less a deduction for taxation. The defendant refused to acknowledge that he was not entitled to move for the winding up and the company applied to set aside the statutory demand. [303] At the hearing before Finkelstein J, Counsel for the defendant argued that the Court could not set aside the demand because the solvency of the company was not a factor for the Court in deciding what to do with the demand. There was also a secondary argument that a demand that had been paid could not be set aside. [304] Given the way the hearing proceeded, his Honour ultimately dismissed the application but awarded costs against the defendant. The case supports the contention that in deciding whether a person is threatening a winding-up application for an improper purpose, it is legitimate, and will often be necessary, to enquire into the 64 [2021] VSC 732. 65 Paperlinx Ltd v Skidmore (2004) 51 ACSR 614, 616 [9] (Finkelstein J). See also the discussion in Assaf’s Winding Up in Insolvency at [8.101]. 66 Chippendale Printing Co Pty Ltd v Deputy Cmr of Taxation (1995) 15 ACSR 682, 695 (Lindgren J). See also Leda Developments Pty Ltd v Orion Consolidated Pty (formerly Hillnorth Pty Ltd) [2001] QSC 400 at 7 (Mullins J); Reavill Farm Management Pty Ltd v Ashford Properties Pty Ltd [2010] NSWSC 1128 [27]-[28] (Barrett J). 67 (2004) 51 ACSR 614. -- 60 of 81 -- 61 solvency of the company. Further, in that case, his Honour was satisfied that the statutory demand was served for an improper purpose. [305] In respect of the latter point, his Honour stated: “[10] Here I have no doubt that the defendant served the statutory demand for a purpose foreign to the Corporations Act. He could not have intended to rely on non-compliance with the demand to establish insolvency because he knew the company could easily rebut the presumption. Indeed, I am sure that after he had received part payment (if not before then) the defendant never intended to apply for the plaintiff’s winding up. Nevertheless, the plaintiff was entitled to bring this application to avoid what, from its perspective, was the risk of having to face a winding- up application. [11] This brings me to … second point. At least two remedies were available to the plaintiff if the defendant had not withdrawn his threatened proceeding. It could have sought an injunction restraining the defendant from making a winding-up application. … Another option, which was the one taken, was to seek to have the statutory demand set aside …” Is there a genuine dispute? Applicant’s position [306] The applicant makes a number of points to establish a genuine dispute as to the existence of the alleged debts contained in the statutory demand. These include: (a) The contemporaneous correspondence is inconsistent with the existence of the two agreements alleged by the respondent. (b) There are other problems with the alleged agreements, including the demand specified that on 22 May 2018 that the ANZ agreed to pay on behalf of the respondent to Tremco the sum of $972,000 however there is no explanation for the calculation of this amount. (c) The respondent’s affidavit filed on 17 January 2022 at [35(b)] deposes that at the meeting on 22 March 2018 Tremco, PWA and Thomson Lawyers were not discussed and it was to proceed on the basis that the applicant “would not pay all the legal costs associated” with the Court proceedings. (d) Ms Kindermann’s affidavit deposes, on information and belief, that Mr Steinberg denies that the ANZ reached the alleged agreements with the respondent. Mr Steinberg was at both meetings and was involved in the relevant contemporaneous correspondence. (e) It is improbable that a settlement of the nature alleged by the respondent with the ANZ would not be recorded in a deed or arrangement. The applicant points to contemporaneous correspondence which refers to the need for formal documentation, including in the respondent’s counteroffer contained in the letter dated 22 March 2018. (f) For an agreement to be binding its terms must be certain. -- 61 of 81 -- 62 [307] The applicant relies on the relevant parts of the contemporaneous correspondence exhibited to the first Kindermann affidavit and the respondent’s affidavit as revealing considerable uncertainty over the alleged agreements and their terms. [308] While it is not necessary or appropriate for me to determine whether there is a concluded agreement, it is appropriate for me to consider the contemporaneous correspondence as part of the exercise of determining whether there is a genuine dispute as to the existence of the alleged debts contained in the statutory demand. [309] On 22 March 2018, Mr Steinberg and Ms Lara Ford of the ANZ met with the respondent. [310] On 22 March 2018, the respondent emailed a Mr Peter Gnaden of the ANZ and stated in a letter:68 “… Wayne and I refer to the meeting we had with Mr Ben Steinberg, head of commercial lending at ANZ and Lara Ford today. I have sent this to you as per our previous meeting for you to onforward to Ben. Time is of the essence as you are aware. Ben has invited us to put forward a counteroffer, to the settlement offer that he made on behalf of ANZ to Wayne and I today. 26. The counteroffer we wish to make to ANZ at the invitation of Ben Steinberg is: (a) ANZ will not enforce the personal guarantees that Wayne, Peradena Pty Ltd and I gave to ANZ for Kadoe Pty Ltd (in liquidation) in its own capacity and in its capacity as trustee of The For Three Trust and discharge the second mortgage on 26 Bellanboe Circuit, Pelican Waters; and (b) ANZ forgive the balance on the Holden Commodore … (c) ANZ reduce the balance of the mortgage on the property at 26 Bellanboe Circuit, Pelican Waters to $300,000.00; and (d) ANZ pay to us the sum of $4,225,756.00 within 7 days from the date of acceptance of this offer by ANZ, in full and final settlement of the damages we have sustained arising from ANZ’s breaches of the AMLCTF Act and the compensation payable as a result of those breaches; (e) That this settlement is subject to a suitably worded deed of release and indemnity; Time is of the essence with the commencement of trial in the Tremco matter due to commence on 16 April 2018. We need to negotiate any settlement amount and have the ability to pay that from the compensation the subject of the settlement offer … 68 Exhibit IK-01 of the first Kindermann affidavit, beginning page 38. -- 62 of 81 -- 63 We look forward to receiving your acceptance of this offer by return. Please feel free to give me a call if you need clarification of anything in this letter or wish to discuss the terms of settlement further.” [311] A few days later, on 26 March 2018, the respondent emailed Mr Elliott about the meeting on 22 March 2018 and attaching a letter. The attached letter dated 22 March 201869 relevantly states: “I have attached a copy of the counteroffer we have made for your information. The initial settlement offer we made was set out in detail as to how we had derived at the settlement amount … … At ANZ’s request the amount of the settlement we require has been reduced down from where it should rightfully be, I respectfully ask that agreement to this remediation and acceptance of our counter offer is accepted by no later than 4:00 pm on Wednesday 28 March 2018, so that myself and my family can go into Easter with peace of mind in regard to our future.” [312] On 27 March 2018, Mr Gnaden of the ANZ emailed the respondent, copied to Ms Ford, in response to the counteroffer as follows:70 “… Regarding your counter offer in paragraph 26, ANZ rejects that offer. ANZ remains of the view that its acceptance of the Trust Deed did not cause you any loss. As a final attempt to reach an amicable resolution, and taking into account your financial difficulty, ANZ is prepared to settle in terms set out in paragraphs (a), (b), (c) and (e) of your counteroffer. In relation to paragraph (d) of your counteroffer, ANZ is not prepared to pay any compensation to you.” [313] The applicant submits that nowhere in this contemporaneous correspondence between the respondent and the ANZ is there a reference to an agreement having been reached on 22 March 2018, nor is there any identification of particular sums in the statutory demand, namely $972,000, $50,000 and $30,000. [314] In considering this contemporaneous correspondence the applicant identifies the following principles: (a) Subsequent conduct is admissible to determine whether or not an agreement was in fact reached: Chambers v Brice.71 (b) The usual legal effect of a counteroffer by one party is to reject a previous offer by the other party: NWA Realty Pty Ltd v Christou.72 69 Exhibit IK-01 of the first Kindermann affidavit beginning at page 43. 70 Exhibit IK-01 of the first Kindermann affidavit, beginning at page 46. 71 [2013] QSC 232 at [135] per P Lyons J. 72 [2019] NSWSC 1364 at [40]. -- 63 of 81 -- 64 [315] On 27 March 2018, Mr Gnaden for the ANZ expressly rejected the respondent’s counteroffer.73 [316] Further, on 12 October 2018 the respondent met with Mr Steinberg, Mr Elliott and Ms George of the ANZ.74 [317] On 15 October 2018, Mr Steinberg emailed the respondent and copied the email to others stating:75 “… During the meeting, Mr Elliott suggested that you and ANZ have a different view of the facts and issues regarding the Trust issues and that we are unlikely to reach an agreement on these issues. Mr Elliott also suggested that we therefore concentrate our efforts on a way forward and on possible resolution recognising we will not agree on the Trust issues. I therefore wish to confirm the proposal we put which is as follows. ANZ has suggested that you retain a suitably qualified advisor to advise you on your position with Tremco and ultimately to agree a compromise payment to them in full and final settlement of the judgment debt that they currently have against you which is circa $370,000 plus costs. Should you reach an agreement on a reasonable payment in full and final settlement the provided such payment is no more than $50,000, ANZ will agree to make this payment on an ex gratia basis ie we will not seek to recover it from you. … ANZ’s offer in respect of it’s [sic] facilities remains open to you for acceptance. That is – ANZ offers to forgive the entire business debt owing (circa $500,000) and to reduce the amount owing on your home loan from its current balance in excess of $500,000 to $350,000 on the basis that you demonstrate capacity to service the $350,000. If you are unable to demonstrate capacity to serve the $350,000 then ANZ will consider reducing the home further to an amount that you demonstrate is serviceable (usual documentation will need to be provided to demonstrate service ability). … If you agree with this path forward, please can you arrange the appointment of your selected advisor and preparation of a scope letter.” [318] On 16 October 2018, the respondent responded by email to Mr Steinberg, and also copied to others.76 [319] In this response, the respondent summarises her understanding of the ANZ’s “proposal dated 15 October 2018” and then also sets out the respondent’s five page “counter proposal”, including as follows: 73 Exhibit IK-01 of the first Kindermann affidavit at page 46. 74 First affidavit of Kindermann, at [26]; Affidavit of Thomson filed 17 January 2022, at [38]. 75 Exhibit IK-01 of the first Kindermann affidavit, beginning at page 48. 76 Exhibit IK-01 of the first Kindermann affidavit, beginning at page 50. -- 64 of 81 -- 65 “Your proposal dated 15 October 2018 … In regard to your offer yesterday I state as follows: a. Your offer made at the meeting on Friday included issues other than just negotiating a settlement for $50,000.00 with Tremco. The Tremco proceedings included third party proceedings involving the negligent accountant. You previously asked me try and organise a settlement conference to try and settle the third party proceedings. They refused. b. You never made any representation on Friday that you would cap any settlement with Tremco at $50,000.00, and if more than that, you reserved the right to pursue me personally for any additional amount that you paid to Tremco. This was never discussed at the meeting last Friday. … e. After speaking with David Neve yesterday and Leon over the weekend, they both advised that you were made aware by them that there may be some legal issues that need to be determined before we can get to whether ANZ are required to pay compensation for loss and damage. This has been excluded from your offer yesterday. Counter Proposal i. That ANZ agree to use the existing independent report from Marilyn Barnes, that goes to the viability of the trust whilst it traded up until 30 June 2013. This would reduce the amount required to determine whether ANZ has any liability and if so what loss and damage arises from this liability. … v. Shayne made it very clear in the meeting last Friday that he does not wish to look backwards. He also made representations to the Economics Committee last Friday that he would take full responsibility for all customers he had done wrong by. The only way that Shayne can be informed as to whether he needs to take responsibility for our matter is for the full investigation to be undertaken as outlined above.” [320] In this response, the respondent does not refer to any agreement having been reached on 12 October 2018. Further, there is no mention of any specific sum of $1,780,378. [321] The applicant contends that if the ANZ had unconditionally agreed to pay the amount of $1,780,378 to the respondent, it is likely that the respondent would have mentioned this in her long email. However, the applicant submits that it is not consistent with the language used in the response that there was a concluded agreement. -- 65 of 81 -- 66 [322] The applicant also contends that the email from Mr Steinberg dated 15 October 2018: (a) is consistent with the position that the ANZ had not already agreed to pay $972,000 to Tremco as at March 2018; and (b) it does not raise that the ANZ had already agreed to pay $972,000 to Tremco, which would be consistent with that agreement having been reached. [323] The applicant also refers to additional emails between the ANZ and the respondent between 18 October 2018 and 22 March 2019 about the negotiations between the parties. These emails emphasise that the applicant’s proposal contained in the email dated 15 and 18 October 2018 are on the basis there had to be a global settlement of all issues. [324] In an email dated 20 October 2018 the respondent emailed various parties, copied to the applicant, stating: “On 12 October 2018 I met with Shayne Elliott, CEO of ANZ, Alexis George, Deputy CEO of ANZ and Ben Steinberg. Agreement was reached on that day for an independent person to be appointed at ANZ’s expense to bring Tremco to the table for settlement negotiations, where ANZ have agreed they will pay that settlement. There has been a sticking point to this agreement now, as ANZ do not like the person I wish to have do this … These negotiations as to this person has stalled here. … ANZ have asked me to approach you direct and negotiate a settlement that ANZ will pay on the basis if I am bankrupt Tremco will get nothing. Except I am not in a position to do that because a full and final settlement has not been negotiated between myself and ANZ and I will not have ANZ construe that by my conduct of approaching you that I have accepted an offer that I have rejected outright, except for ANZ reaching a settlement with Tremco.”77 [325] In a response emailed on 21 October 2018, Ben Steinberg on behalf of the applicant informed the respondent as follows: “I must make some points clear as you either misunderstand or misinterpret: * ANZ suggested 4 Brisbane based advisors and gave you an option of selecting …Your note below inaccurately says that we want you to use PWC. That said - if you do not want to use PWC - that is fine with us. Choose one of the other 3 firms we suggested or David Neve. Our negotiations have not stalled on your selection of advisor. You are free to choose your own advisor and for the record ANZ will work with David Neve, if you select him as your advisor. My email dated 15 October says ‘The appointment of advisor is a matter solely for you’. So please do not misinterpret our messages to you, which are designed to resolve our issues constructively. 77 Exhibit CMT-97, affidavit of Thomson filed 17 January 2022, at page 938. -- 66 of 81 -- 67 * Our offer was for your advisor to conduct negotiations with Tremco, not for ANZ to do this. * Finally, the offer we put to you in my email dated 15 October 2018, then repeated very clearly in my email dated 18 October 2018 is offered on the basis of an all in settlement. It is not available to you to agree to the part where we offered to help by funding an agreed (compromised) payment to Tremco without accepting the balance of the proposal. It is a package. An opportunity to settle all those matters - not just one that you select. May I suggest that you ask someone else to read those offers so that you understand them with clarity and with the goodwill they are intended.”78 [326] Further, the respondent emailed in response on 21 October 2018 including as follows: “In regard to Tremco, it makes no difference to me whether you pay Tremco out or not. Tremco have been provided with evidence last year that I have no money whatsoever to satisfy any judgment and/or adverse cost order. The outcome for me is still the same regardless of whether you meet the commitment that was given to me on 12 October 2018 that ANZ would negotiation a settlement with Tremco. The only party impacted by your decision is Tremco. You were going to pay them out and now you are not until I accept the settlement offer currently on the table. You were told in February 2018 that this settlement was not sufficient. It is still not sufficient and you are seeking to have me accept this by using the pressure of the appeal being heard on 23 October 2018. This is financial control being used by ANZ to have me comply with its wishes instead of ANZ honestly and integrally assessing my families [sic] situation and an appropriate amount of compensation paid to my family. … With the settlement offer that is on the table there is absolutely no reason for ANZ to put forward four substantial firms simply to negotiate a settlement with Tremco. This can be done by ANZ, with me included. It will not cost the amount that ANZ have put forward that it will cover for a consultant to negotiate this. This was not in the spirit of the negotiations that occurred on 12 October 2018. You need to be clear that the blockage in moving forward is not Tremco’s settlement. Tremco have been put on notice, including a letter from ANZ Bank last year that I have no equity in my home. The blockage in moving forward is Shayne Elliot [sic] and your refusal to look at the root cause of the dispute with ANZ, have a consultant determine ANZ’s liability (if any) and calculate the loss and damage that ANZ need to remediate to me and my family. Until ANZ agree to do what is necessary, and which Shayne Elliott told the Economics Committee he would take full responsibility for, and look at ANZ’s misconduct and wrongdoing, then this matter can 78 Exhibit CMT-98, affidavit of Thomson filed 17 January 2022, at page 940. -- 67 of 81 -- 68 not progress and has stalled perhaps to the point where it is not possible to progress forward. … My offer is still on the table for me to have David Neve and if necessary a solicitor of his choice to determine ANZ’s liability (if any) and the amount of loss and damage that my family has sustained both in financial terms and the loss of my personal and business reputation …” [327] On 22 March 2019, Mr Steinberg emailed the respondent and expressly informed the respondent that “ANZ is not offering any cash payment to you”.79 [328] It is on the basis of this evidence that the applicant contends that the contemporaneous correspondence is inconsistent with the existence of the two agreements alleged by the respondent. [329] In respect of point (b) identified by the applicant, reference is made to the decision of Porter DCJ QC in Tremco Pty Ltd v Thomson80 on 12 June 2018 in that his Honour ordered the respondent pay $372,016.10 to Tremco as compensation under s 588M of the Corporations Act for insolvent trading plus interest and indemnity costs. The respondent sought to appeal this decision to the Court of Appeal and it was unsuccessful: see Thomson v Tremco.81 [330] As at 22 March 2018, the sum of $972,000 was not known and in particular, the respondent’s debt to Tremco had not arisen as the District Court decision was not delivered until 12 June 2018. It is in these circumstances that the ANZ contends that it could not have agreed to pay $972,000 at the time alleged. [331] The applicant submits that it can be inferred that the judgment of $372,016.10 ($452,919.82 inclusive of interest) plus costs forms a component of the $972,000. There is a reference in an email on 16 October 2018 from the respondent to Mr Steinberg which refers to the judgment amount.82 [332] There is no explanation in the statutory demand about the calculation of the $972,000 (apart from what can be inferred), $50,000 and the $30,000 as to how those amounts were calculated or when the alleged debts arose. [333] In respect of the point (c) identified by the applicant, the applicant contends that the evidence in the respondent’s affidavit filed on 17 January 2022 at [35(b)] is that there was no discussion of Tremco, PWA and Thomson Lawyers at the meeting on 22 March 2018. The applicant submits that if there was no discussion of those entities, it is not consistent that there was an agreement on that date to pay the specific amounts alleged to Tremco, PWA and Thomson Lawyers. 79 Exhibit CMT-104, affidavit of Thomson filed 17 January 2022 , beginning at page 950. 80 [2018] QDC 101. 81 (2019) 136 ACSR 1; [2019] QCA 018. 82 Exhibit IK-01 of the first Kindermann affidavit, beginning at page 50. -- 68 of 81 -- 69 [334] Reference is also made to [35(f)] of the respondent’s affidavit which the applicant contends further supports this position which states: “Nothing further was agreed to at this meeting, just that we were invited to make a counter-offer in regard to the compensation we would accept”. [335] The respondent’s affidavit at [38] addresses the meeting on 12 October 2018. In that paragraph the respondent sets out the details of what she says was agreed at the meeting but the figure of $1,780,378 is not mentioned. [336] The respondent’s affidavit also states at [37] that the ANZ was refusing to pay any compensation to her. In these circumstances, the applicant contends that it was improbable that the ANZ would not pay compensation to the respondent but would make an unconditional “cash payment” to the respondent. [337] In respect of point (d) identified by the applicant, Mr Steinberg was at both meetings and was involved in the contemporaneous correspondence. It is contended on behalf of the applicant that it is improbable that the ANZ made the alleged agreements as it is contrary to the evidence. [338] In respect of point (e) identified by the applicant, there is no evidence of any agreement being evidenced in a deed or agreement. The applicant submits that this is consistent with the ANZ’s contention that no agreement was reached. The respondent refers to the need for formal documentation at [26(e)] of her counteroffer in the letter dated 22 March 2018. Further, it is submitted that it is improbable that a settlement of the nature alleged by the respondent would not be recorded in a deed or agreement.83 [339] Finally, the applicant contends that all of these matters support there being a genuine dispute for the purpose of s 459H(1). That is: (a) There is sufficient objective existence of prima facie implausibility, it goes beyond mere assertion. (b) These matters give rise to a plausible contention requiring investigation akin to considering the “serious question to be tried” test. (c) The correspondence was contemporaneous and was not prepared following receipt of the statutory demand. (d) The issues referred to and relied upon by the applicant go to the underlying nature of the dispute about the existence of a debt. Respondent’s position [340] In respect of the alleged agreements which are the subject of the statutory demand, the respondent addresses these issues under the heading “The Applicant admits liability and wishes to reach a compromise over the amount it will pay in settlement”. [341] The respondent submits that the applicant has never denied that it is liable to pay a settlement and therefore there is no genuine dispute about liability. 83 First Affidavit of Kindermann, at [21(d)] and [26]. -- 69 of 81 -- 70 [342] The respondent summarises in her submissions the basis of the alleged agreement as follows: “[32] Mr Elliott and I worked together from August 2016 to 12 October 2018 to negotiate to remediation to be paid. The terms were consistent with the Applicant’s desire to compromise the amount it had to pay. During this period 2016 to 2018 the terms were agreed upon at varying times. As the negotiations progressed counter-offers were made only in relation to the terms that had not previously been agreed to an agreement was still yet to be reached on.” (underlining added) [343] Further, in her written submissions, the respondent goes on to explain the basis of the alleged agreements in the statutory demand as follows: “[35] Further evidence of the Applicant intend to be legally bound by the agreement was that by on or about 28 February 2019 the Applicant had agreed to the appointment of David Neve; had told Tremco that they would cover the costs of any payment to it; Tremco and PWA had agreed to attend the settlement conference.84 [36] The Applicant itself did not proceed with the appointment of David Neve or the settlement conference. [37] This does not mean that the Applicant does not pay at all. It just means that it waived its rights to compromise the amounts it was to cover in the settlement to me. The amount that was owing at 12 October 2018 and payable due to the Applicant not denying liability for this settlement to be paid, includes the amounts that the Applicant wanted the opportunity to compromise. Except for Thomson Lawyers, where a cost assessor had been appointed and an order had been made as what the costs she was to assess where to cover and on what basis.85 This $30,000 was the amount that I calculated they would be entitled to on an assessment. The amount of $118,868 contained as owing to Thomson Lawyers in paragraph 14 of Ms Kindermann’s affidavit sworn 21 August 2019 has been reduced on assessment to $34,953.05.86 This is the compromise amount that needs to be included in the statutory demand. The Court has the ability to vary the amount in the demand instead of setting the demand aside.87 [38] The Court could also adjourn this hearing to give a period of time for the compromise to be negotiated under the terms that the Applicant had agreed so the amounts contained in the statutory demand can be varied. 84 Affidavit of Thomson filed 17 January 2022, at paragraphs [47]-[48], [50]-[54]. 85 Affidavit of Thomson filed 17 January 2022, page 912. 86 Affidavit of Thomson filed 17 January 2022, page 913-933. 87 Section 459H(2) Corporations Act 2001. (Note: Respondent’s footnote). -- 70 of 81 -- 71 [39] For these reasons there is not a genuine dispute, as the Applicant has never denied liability and its conduct admittedly after the meeting on 12 October 2018 was to take steps to fulfil its obligations under the settlement. [40] The Applicant just did not want to pay the full amount of the settlement to me. They wanted to compromise this and pay for this to occur at a settlement conference where it elected not to proceed with that settlement conference. On that basis the Applicant waived its right to the opportunity to compromise the amount it would pay to me in settlement.” (underlining added) [344] The respondent expanded this reasoning in her oral submissions, including as follows: “RESPONDENT: No. My submission is what it does is it actually represents that they actually wanted an opportunity – they’re not going to pay all of it. They wanted that opportunity to actually – they’re not saying they’re not paying any of it, and that’s certainly not what they told me to do. And that correspondence doesn’t indicate that they never told me they’d pay any of it. It indicates that they didn’t want to pay all of it. And then if we go post two thousand and – 12th of October 2018, the situation then was that there was no genuine dispute up to the 12th of October 2018. They agreed to pay. They agreed to pay Tremco, PWA and Thomson Lawyers. They wanted the opportunity to negotiate the compromised amounts. HER HONOUR: So when you say they agreed to pay, are you saying that they agreed to pay subject to the amount being finalised? RESPONDENT: Correct. That is what has always been the case. So they wanted the opportunity to compromise the amounts. So if we go post 12 October 2018, the sticking point then was the appointment of a consultant. So they had organised that – or they had a preference that they wanted a consultant to negotiate – or to sit down at a settlement conference with the party – with Tremco, PWA, Thomsons and myself, and they wanted that consultant to actually physically negotiate a compromise of the amounts they would pay. So this whole thing is not a dispute about amounts that are in the statutory demand. This is that they wanted to compromise it.”88 (underlining added). [345] Further, the respondent referred to the affidavit of Mr Ashby she had filed in support of her submissions and stated in oral submissions: “HER HONOUR: But what does that go to? RESPONDENT: It goes to the fact that they always wanted – didn’t deny the settlement, always wanted an opportunity to compromise the amounts. 88 T1-81 line 14 – 34. -- 71 of 81 -- 72 HER HONOUR: But even if I accept that they were willing to be able to continue negotiate to reach a settlement, they can - - - RESPONDENT: No, the settlement was reached. HER HONOUR: We can still get to the point where there is a disagreement as to whether the amounts of money that you say are payable are payable and that is what is the genuine dispute between the parties that Mr Goodwin has - - - RESPONDENT: No, the genuine dispute with the parties is actually whether or not they waived their right to actually physically compromise the amounts. HER HONOUR: But the statutory demand claims a particular amount of money - - - RESPONDENT: Correct. And the money that was - - - HER HONOUR: - - - and that’s what Mr - - - RESPONDENT: - - - owing on the 12th of October - - - HER HONOUR: And that’s what Mr Goodwin’s client disputes. RESPONDENT: Yes. HER HONOUR: They say that there is – that amount is not paid. RESPONDENT: We wouldn’t be here if there wasn’t a dispute - - - HER HONOUR: Yes. RESPONDENT: - - - in regard to them and me in regard to what has happened here. HER HONOUR: But doesn’t that mean that Mr Goodwin has to win on today’s application? RESPONDENT: No, not at all because you have the ability to actually vary the amounts in the demand without setting it aside.”89 (underlining added) [346] The respondent further submitted: “RESPONDENT: Yeah, and that’s why we needed Mr Elliott here and that was exactly what I said this morning. The only person that could actually go to that evidence is actually Mr Elliott. Mr Elliott is the one that said the cash payment. So Mr Elliott was the only person that could give the evidence as to that cash payment and I had that right removed this morning. Now, it doesn’t go to whether or not 89 T1-83 line 10 to 1-84 line 5. -- 72 of 81 -- 73 they can’t be varied. It actually goes to the fact that they waived their right to actually physically – they waived their right to negotiate those amounts. So the amounts in the statutory demand are the full amounts that need to be paid and whilst Mr Goodwin might like to rely on the fact that the amount for Tremco is an amount more than the judgment, the actual statutory demand wasn’t actually physically – it wasn’t served until August 2019. So what was owed to Tremco in 2018 when that agreement was reached? Mr Goodwin rightly pointed out that there was actually the cost of another – of the trial and the cost of an appeal after that. So this goes to the fact that – and we can look at it like that, I mean, we can find arguments for both sides, that both parties are right, but I would hope that you would keep an open mind about the fact that I’ve been badly hurt by a bank - - - HER HONOUR: But this is where you’re missing the point of the application today. RESPONDENT: Am I? HER HONOUR: You say there are arguments on both sides, that is the very issue that this court needs to - - - RESPONDENT: But I don’t mean in real life, I mean in regard to these legal proceedings. HER HONOUR: But that’s exactly it. That is what the Corporations Act means when it says a genuine dispute. It means - - - RESPONDENT: A genuine dispute about the debt being owed. HER HONOUR: Yes. RESPONDENT: And there’s no dispute about the debt being owed. There is nothing in any correspondence that says they’re not going to pay. And in actual fact, if you go to other correspondence - - - HER HONOUR: Well, because they say they don’t have to pay anything. That’s their position. RESPONDENT: But that isn’t the case. And the correspondence after – what is in that email of the 15th of October is not what was agreed to and it was not agreed to because – and I’ll take you to the rest of the evidence, okay? So it would be really good if you had an open mind so that when I take you to the evidence – so there’s an affidavit of David Timothy Neve, that’s eCourt document 7. So the dispute was who was going to be appointed as – the dispute was going to be appointed for the consultant. HER HONOUR: Yes. -- 73 of 81 -- 74 RESPONDENT: And that’s what stopped it being paid, nothing else. So at paragraph – this is actually – do you need the date that it was sworn, or are you just fine with the document? HER HONOUR: I have a document that was filed on the 10th of September 2019 and is sworn on 30 August 2019. RESPONDENT: Okay. So at paragraph 10.4 Mr Neve actually says that Mr Steinberg called him and made it clear that they wanted PWC to be appointed, Mr Neve is actually the consultant that I actually had chosen. And at that point in time, the only dispute was who was to be appointed as the consultant so that the – the compromised amounts could be paid. And then Mr Steinberg, when he couldn’t get Mr Neve to agree – and that’s all in that paragraph – when he couldn’t David Neve to agree not to take the consultancy if I chose him, that’s where the dispute escalated and that’s when Mr Steinberg then confirmed in the email on the Monday different terms to what had been agreed. So if I can take you to page 935 of my affidavit. … RESPONDENT: Yeah, but I’m saying to you that agreement was reached, and all - - - HER HONOUR: But Mr Goodwin says no – his client says no, it wasn’t. RESPONDENT: I understand, but if we go to the rest of the evidence, you will see that by the 27th of February or 28th of February 2019, the sticking point of who the consultant was going to be to actually fulfil the terms that were agreed to on the 12th of October was then all approved, and it was approved before that. So they kept changing the terms. What is in that paperwork on the 15th is not what Mr Goodwin took you to on the 22nd - - - HER HONOUR: But - - - RESPONDENT: - - - of March 2019. HER HONOUR: So in – so - - - RESPONDENT: The terms were different. HER HONOUR: - - - all of these contemporaneous documents are supportive of a trial judge, if it goes to trial, ultimately needing to weight up whether an agreement was actually reached or not. So all of this - - - … HER HONOUR: I’m trying to understand - - - RESPONDENT: All I can do - - - -- 74 of 81 -- 75 HER HONOUR: - - - what you say forms the basis for those debt amounts in the statutory demand. RESPONDENT: Okay. They - - - HER HONOUR: Why do you say you’re entitled to that. RESPONDENT: - - - wanted – they wanted the right to compromise them. They agreed to the settlement. It doesn’t – it doesn’t mean - - - HER HONOUR: When you say they agreed, where do you – what evidence do you point to, to say that they agreed? RESPONDENT: I’m saying that what happened after the - - - … RESPONDENT: Okay. They didn’t. I’m saying to you that if they – if they waive their right to negotiate the compromise to that amount, then the full amount has to be paid. And in terms of the amount that I’ve got, Mr Goodwin read out - - - HER HONOUR: So you accept there was no, in effect, agreed position in respect of the amounts to be paid? RESPONDENT: No, I – no, I don’t. – I do not accept that because they were the ones that didn’t want to pay the full amount. HER HONOUR: So you say they didn’t want to pay the full amount, but by not continuing to negotiate you say they locked in the full amount. RESPONDENT: Yes, they waived that right. It doesn’t mean that the rest of the settlement is not paid. HER HONOUR: So there was no, in effect, compromise by them that, in effect, there was an agreement to pay. RESPONDENT: Yes. HER HONOUR: You, in effect, said that they pay the full amount because they didn’t continue in the process. RESPONDENT: Right. But mine isn’t the full amount. Okay. So no - - - HER HONOUR: I thought you said the amounts were the full amount. RESPONDENT: Yeah, mine isn’t – yes. Mine isn’t the full amount. The amount I put in for myself that Mr Goodwin - - - HER HONOUR: The amount for the three companies listed. -- 75 of 81 -- 76 RESPONDENT: Mr Goodwin read out today a settlement offer that I had made prior to the 12th of October. HER HONOUR: So you’re saying the 1.7 is not the full amount, but the other amounts are. RESPONDENT: No, that is the amount that was a compromised amount, okay? And Mr Goodwin has got the last settlement offer - - - HER HONOUR: So how is - - - RESPONDENT: Mr Goodwin read out the last settlement offer, which was made in March or whatever, I can’t remember the exact date. HER HONOUR: And where does it say, ‘We accept that offer.’ RESPONDENT: That wasn’t when it was accepted, and I’ve never said it was accepted in March. I accepted that there were payments to Tremco and PWA, but the payment to me was never agreed to until the 12th of October.”90 (underlining added) [347] In respect of the respondent’s affidavit evidence in respect of the alleged agreement, the respondent informed the Court that: “RESPONDENT: Okay. Probably because I didn’t realise I had to go into that much detail with it and because I – I honestly believed he would give the details of what was agreed to under oath. And then from there, it would be seen very clearly that the only dispute that existed was in regard to the consultant to be appointed. Okay. And that was simply because they wanted PWC to be appointed and I didn’t because of a conflict of interest. So it’s not about what was agreed to. It’s about what they – they were to fulfil under that agreement and because they chose not to – not to go forward and – and compromise those amounts. I mean, that doesn’t mean they don’t pay. And then, what, I – just because they don’t want to appoint PwC, I’m then back to square one again.”91 (underlining added) Consideration [348] The statutory demand contains the following description of the debt:92 “The outstanding amounts due and payable by the Company pursuant to the following settlements reached with the Creditor under the Company guaranteed payment of the following amounts:- On 22 March 2018 the Company agreed to pay the following companies on behalf of the Creditor:- 90 T1-84 line 23 to T1-91 line 13. Only extracts from this portion of the transcript are reproduced here. The full portion of the transcript has been considered in respect of the respondent’s contentions. 91 T1-99 line 21 – 30. 92 Exhibit IK-01 of the first Kindermann affidavit, page 3. -- 76 of 81 -- 77 Tremco Pty Ltd $972,000.00 PWA Financial Group Pty Ltd $50,000.00 Thomson Lawyers $30,000.00 On 12 October 2018 the Company agreed to pay the Creditor a cash payment $1,780,378.00 Total owing and payable by the Company to the Creditor $2,832,378.00” [349] The question is whether the Court is satisfied that there is a genuine dispute between the applicant and the respondent about the existence or the amount of the debt to which the demand relates. [350] The contemporaneous correspondence between the applicant and the respondent raises issues which require further investigation. There are a number of inconsistencies with there being: (a) A concluded agreement or agreements; or (b) Whether, as contended for by the respondent, the negotiations “locked in” agreed components and the monetary amounts were set when the applicant waived its rights to agree the amounts. [351] A debt is due and payable under s 459E of the Corporations Act when it is ascertainable, immediately payable and presently recoverable or enforceable by action. [352] Here the amounts claimed in the statutory demand are said to be agreed on dates stated. The ultimate question is whether the claimed amounts are debts that were due and owing. [353] It is not the function of the Court on an application such as this to determine the merits, including whether there is an agreement and, if there is, its terms. The Court is required to look at the evidence to ascertain whether there are grounds for alleging the existence of a dispute. This may be whether there is a plausible contention requiring investigation. [354] Here the contemporaneous correspondence shows there were ongoing negotiations between the applicant and the respondent. It shows counteroffers being made. [355] From the contemporaneous correspondence in evidence and the submissions of the parties it emerges that further investigation is required in respect of two competing contentions: (a) whether the component in the counteroffers were in effect “locked in” with ongoing negotiations being only on what remained outstanding and the applicant waiving the right to agree the amounts payable by not continuing to negotiate;93 or 93 As contended for by the respondent. -- 77 of 81 -- 78 (b) whether the counteroffers where in effect “global offers” where everything had to be agreed for an agreement to be reached and the counteroffers operating such that the previous offers were rejected.94 [356] In the circumstances, there is a clear and genuine dispute between the parties as to whether there is a debt that is due and payable as claimed in the statutory demand. [357] Accordingly, I am satisfied that there exists a genuine dispute regarding the existence of the debt asserted in the statutory demand and the statutory demand should be set aside. Should the statutory demand be set aside for “some other reason”? Applicant’s position [358] The applicant submits that the ANZ was solvent at the time the statutory demand was issued and was solvent at the time of the hearing. The applicant relies on [4] of the Smith affidavit and [28] of the affidavit of Inge Kindermann sworn and filed 24 January 2022 (second Kindermann affidavit) and the relevant parts of the exhibits (excluding the Credit Report). [359] It is also submitted that it can be inferred that the respondent knew of the ANZ’s solvency and had no reasonable belief to the contrary when she issued the statutory demand. In support of this inference, the applicant relies upon: (a) The respondent filed an AFCA complaint against the ANZ seeking compensation for the amount in the statutory demand. The complaint proceeded on the basis of the respondent having an expectation that the ANZ could pay if her complaint was successful. (b) The ANZ is in the top 10 publicly listed companies in Australia for share capitalisation. (c) The profits made and dividends paid by the applicant are subject to regular reporting in Australian media. (d) The ANZ’s core financial information is publicly available. (e) Australian banks are subject to prudential regulation by various Commonwealth agencies and this is a matter of public record. [360] The second Kindermann affidavit updates the financial position in respect of the applicant. The ANZ’s statutory profit for the year ending September 2021 was $6.162 billion.95 The ANZ’s financial statements were audited by KPMG.96 [361] The applicant contends that the respondent has provided no credible or admissible evidence to the contrary. It is in these circumstances that the applicant submits: (a) it can be inferred that the respondent had no genuine belief that the ANZ is insolvent and has no legitimate expectation that the ANZ would be wound up for failing to satisfy her demand. 94 As contended for by the applicant. 95 Second Kindermann affidavit filed 24 January 2022, at [28]. 96 Exhibit IK-01 of the second Kindermann Affidavit. at page 44. -- 78 of 81 -- 79 (b) there is an available inference that the respondent issued the statutory demand for the purpose of attempting to force the applicant to pay her disputed debt in the knowledge that the ANZ is solvent or in the absence of a reasonable belief to the contrary. [362] The applicant submits that an abuse of process or a subversion of the statutory regime is made out and the statutory demand should be set aside on this ground in addition to the genuine dispute ground. Respondent’s position [363] The respondent relies on her written submissions dated 6 February 2022. I note that the respondent’s written submissions dated 3 February 2022 also include submissions relevant to the substantive application, in particular from paragraph 55 onwards. These have also been considered as part of the respondent’s case. These are largely repeated in the later submissions but have been considered as part of the overall submissions made by the respondent. [364] Firstly, under the heading “Introduction”, the respondent submits that this is a public interest matter. The respondent then refers to contraventions by the applicant in other Court proceedings and in evidence given to the Commonwealth Parliament. [365] The respondent refers to there being admitted 327,895 contraventions of the law and then applies the maximum penalty and on her calculation, the applicant would have had to pay $557 billion. She also contends that the applicant could not admit to the 1,340,087 contraventions because in those circumstances, the penalty would have been $2.2 trillion. [366] The respondent then undertakes a calculation of the applicant’s cash profit and estimates it would take 90 years for the applicant to repay the maximum penalty. [367] It is against this background that the respondent submits that “the only way that it remains solvent from this one example of its breaking the law is it was able to negotiate with the Australian Security Investments Commission to pay a penalty of $8 million from the 327,895 contraventions, which only equated to a penalty of $24.40 per contravention”. [368] The ultimate submission made by the respondent is that “because of the sheer number of the contraventions the applicant’s law breaking puts it into the category of insolvent”.97 [369] The respondent undertakes a similar exercise in respect of other proceedings involving the applicant. The respondent also makes submissions in relation to a remediation program that the applicant has in place. The respondent is not eligible for the remediation program as hers was a commercial loan and not a home loan. However, the respondent points to alleged delays in the remediation payments and the payments not being complete as being “evidence of a much wider problem within the applicant”. The respondent states “these delays in remediation could include the lack of surplus funds to meet the remediation payments”. 97 Respondent’s written submissions dated 6 February 2022 citing exhibit CMT-80, affidavit of Thomson filed 17 January, at page 688, [78], [80]. -- 79 of 81 -- 80 [370] The respondent also points to the financial statements which are in evidence before the Court evidencing that there is a cash profit of $6.162 billion which is unaudited. The respondent submits “no one has verified its legitimacy or what this includes”. [371] The respondent seeks to categorise the applicant’s conduct in relation to other proceedings as evidencing that “law breaking is systemic”. The respondent also refers to the evidence given at the Banking Royal Commission and also, responses by the Board at the applicant’s annual general meeting in Perth in 2018 as the basis for her submission that “[she] had severe questions about the solvency of the Applicant from all the misconduct and how it was going to pay for it all”. [372] On this point, the respondent ultimately submits: “[26] There is no one to protect the little person except the Court under these circumstances. An appointment of a liquidator to determine solvency, where clearly penalties in one matter alone rendered the Applicant insolvent, and where had the Applicant put a provision into its books to cover this as it should, it would have identified a solvency issue where it should have had a liquidator appointed to prevent the systemic lawbreaking [sic], preserve the assets, determine all customers that have been harmed and pay the remediation. It would have not known at the time it reported these contraventions to ASIC what penalty it would be looking at, so it should have declared this in its books.” [373] In oral submissions, the respondent stated: “You know, that this is not an abuse of process of what I’ve done. I’ve genuinely believed that they are not as solvent as what they are, because if they were it wouldn’t take them 15 years to pay remediation to people. That’s in evidence in my stuff to. You don’t take 15 years, and if we’re talking about solvency you have to pay your debts as and when they fall due.”98 Consideration [374] Here the respondent has sought to explain her concerns about the solvency of the applicant and has made submissions as to those concerns. This is in contrast to Lifese Pty Limited v Lee Crane Hire Pty Limited.99 [375] The applicant needs to establish that the respondent knew of the applicant’s solvency or had no reasonable belief to the contrary when she issued the statutory demand. [376] The respondent has articulated concerns about the large amounts of pecuniary penalties and court orders that the applicant has been required to pay. She is sufficiently concerned about the applicant’s solvency that she has attended the Annual General Meeting of the applicant in Perth and raised her concerns regarding solvency. The respondent deposes to some of these concerns in her affidavit sworn 5 February 2022. 98 T1-100 line 20 – 25. 99 [2012] FCA 302. -- 80 of 81 -- 81 [377] The applicant submits that the respondent has provided no admissible evidence that the applicant is insolvent. Further, the applicant submits that it can be inferred that the respondent has no genuine belief that the applicant is insolvent. [378] The respondent clearly is concerned about the issue of solvency and has raised these issues in her oral and written submissions and in her supporting material to the best of her ability as a litigant appearing in person. [379] On the balance of probabilities, on the evidence filed in support of the application, the applicant is solvent. However, in order to succeed on the second ground the applicant needs to establish an abuse of process or subversion of the statutory regime by the respondent. The respondent’s concerns about the issues of solvency faced by the applicant are significant to the respondent. While the respondent’s belief may not be supported by admissible evidence or constitute a reasonable belief, it is her strongly held belief. [380] In these circumstances, I am not satisfied that the applicant has established that there is an abuse of process. Accordingly, the applicant has not established that the statutory demand should be set aside under s 459J(1)(b) of the Corporations Act. Orders [381] Accordingly, the Court orders that: 1. A copy of the respondent’s email dated 14 February 2022 is marked for identification “A”. 2. The respondent’s application that I recuse myself on the basis of actual or apprehended bias is refused. 3. Pursuant to r 436(2) of the UCPR, the applicant is granted leave to rely on the Smith affidavit in evidence in support of the application. 4. Pursuant to s 459H of the Corporations Act, the statutory demand dated 1 August 2019 served on the applicant by the respondent be set aside. [382] I will hear from the parties in respect of costs. -- 81 of 81 --