Bessell Properties Pty Ltd v Griffin as liquidator of Maystate Pty Ltd [2001] QSC 362

•' 41.74£( State· Reporting Scc1.36'o<. ( Bureau ~"~~::~~!~~.~~~~~:i 'i Transcript of Proceedings L_G·:·,: _lq .. 7 ..:.0C... ~--~ Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Application No 94 of 2001 BESSELL PROPERTIES PTY LTD and MICHAEL GRIFFIN as liquidator of MAYSTATE PTY LTD CAIRNS .. DATE 07/09/2001 JUDGMENT 1 Applicant Respondent - ,14~@}-, I 4TI I Floo1, Tl te Laoo 8001 ts 8011 ,μlex, Oeo1 ge Ob eel, 81 isba, 1e Q. 4000. Telep I 1011e. (07) 924T 4908. Facsil I life. (OT) 32s47 5502 -- 1 of 5 -- 07092001. T3/LET M/T CNSl/2001 (Jones J) HIS HONOUR: This is an application on the part of Bessell Properties Pty Ltd to set aside a statutory demand which was served by its posting on 31 July 2001. I assess that the receipt of that demand, in the ordinary course of post, would have occurred by 3 August 2001, which was a Friday. That meant that this application, and affidavits supporting the application, would need to be filed and served at least by Monday, 27 August 2001 to comply with the provisions of s.4598(3), which is in the following terms: "An application is made in accordance with this section only if, within 21 days: (a) an affidavit supporting the application is filed with the Court; and (b) a copy of the application and a copy of the 10 supporting affidavit, are served on the person 20 who's the demand on the company". What was filed and served in support of the application was an affidavit of Kevin Joseph O'Connor, filed on 19 August 2001, and an affidavit of William James Royds, filed on 20 August 2001. Before I could embark upon the merits of the application to 30 determine whether there was a genuine dispute or an off- setting claim, Mr Ryall of counsel, on behalf of the respondent to this application, raised the point that those two affidavits which I have just referred to do not satisfy the description of supporting affidavits. In the affidavit of Mr O'Connor, who is a director of the 2 JUDGMENT -- 2 of 5 -- 07092001 · T3/LET M/T CNSl/2001 (Jones J) applicant, the only relevant _statement is: 11 (2) Bessell Properties Pty Ltd is not indebted to Maystate Pty Ltd." The affidavit of Mr Royds is essentially a vehicle for the tendering of correspondence between his firm and the liquidators of Maystate Pty Ltd, who are the persons who made the demand. I have perused each of those letters, and in none of them is there any identification of the grounds upon which the statutory demand could be set aside. One of the letters, being the letter of 6 August 2001, simply asserts that the liquidators, or the company in liquidation, "have no right to serve a creditor statutory demand on our client." The other 10 letters relate to demands which were presumably made, or to 20 actions taken by the liquidators, prior to the service of the statutory demand. On 17 May, two letters were written. In the first an assertion is made that: "The chattels in the motel, including all furniture and fit-out, are the property of our clients (Bessell) 11 • So too, is any stock. The other letter, bearing the same date, simply repeats that assertion in this passage: "We note that you (the liquidators) have entered the property as mortgagee of the real property and its structures. You are not the owner of the chattels at Bessell. 3 JUDGMENT 30 -- 3 of 5 -- 07092001. T3/LET M/T CNSl/2001 (Jones J) You already have our notice that our client is the owner of all chattels located at Bessell. If you require these chattels, then our client will make arrangements to collect same. Otherwise you have no right to touch or use our client's chattels, and you are on notice that you must not in any way deal or use our client's chattels without his prior authority." I interpret those letters simply to be asserting a right to chattels, and they do not, it seems to me, go in any way to setting out claims against the demand or grounds for off- setting a claim for debt. The requirement that supporting affidavits relied upon must be filed within 21 days, was discussed in: Re Louisbridge Pty Ltd, decision of Ryan Jin the Supreme Court of Queensland, raises this issue of whether the Court can look at other documents, or other affidavits, in support filed after the 21- day period. And having examined the provisions of s.459G, at p.145, said as follows: "I do not think that this means that supporting affidavits may not be filed after the 21-day period provided that an affidavit is filed and served within the 21-day period which supports the application by providing 10 20 grounds for concluding that there is a genuine dispute 30 between the company and the creditor about the existence or amount of a debt to which the demand relates, or the company has an off-setting claim." The operative words there are, "providing grounds for concluding." What is necessary to qualify for that description has been discussed in a number of cases, but the counsel for the respondent here referred me particu1a·r1y to the case of 4 JUDGMENT 40 -- 4 of 5 -- ' 07092001· T3/LET M/T CNSl/2001 (Jones J) Dromore v W Paton 23ACSR 230. Young J, at page 235, said as follows: "When one examines s.459G of the law, one can see that it is mandatory that there be a supporting affidavit. This ordinarily means an affidavit which backs up the claim that is made. As I said, in John Holland Construction & Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 10 14ACSR 250, 253, there must be something more than mere assertion. In the present case there is nothing more than the solicitor's assertion that the plaintiff's claim is disputed. This is insufficient. I consider·the learned master was correct, to follow the thinking of Sunderberg Jin the Gray v Winter case, and to hold there was no supporting affidavit in the present case." I have come to the same view in respect of the circumstances of this case to that which prevailed in Dromore's case. The affidavit of Mr O'Connor, and the letters accompanying the affidavit of Mr Royds, do no more than make an assertion - in the first instance - that there was no debt, and in the case of the second, of some right to property. This is not sufficient to provide grounds, or even to identify the grounds, upon which the application to set aside will be made. Accordingly, I find that the requirements of s.459G have not been made out and, as a consequence, I have no jurisdiction to further deal with this application. HIS HONOUR: Yes, I make an order that the applicant pay the respondent's costs of and incidental to the application. 5 JUDGMENT 20 30 -- 5 of 5 --