Imagebuild group pty ltd v fokust pty ltd [2017] vsca 131

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Imagebuild Group Pty Ltd v Fokust Pty Ltd - [2017] VSCA 131

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SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0064
IMAGEBUILD GROUP PTY LTD (ACN 142 525 924)
V
FOKUST PTY LTD (ACN 094 218 961)
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JUDGES: WHELAN JA and ALMOND AJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 31 May 2017
DATE OF JUDGMENT: 31 May 2017
MEDIUM NEUTRAL CITATION: [2017] VSCA 131
JUDGMENT APPEALED FROM: Imagebuild v Fokust (Unreported, Supreme Court of Victoria,
Efthim AsJ, 24 May 2017)
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– Application for leave to appeal from Associate Judge – Application to setCORPORATIONS LAW
aside statutory demand dismissed by Associate Judge – Whether there was a ‘supporting affidavit’ filed
and served within time – Leave refused.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr J Leung Brett Patrick Morris as agents for Colwell Wright Solicitors
For the Respondent Mr D Connors Noble Lawyers Pty Ltd
WHELAN JA:
On 30 January 2017 Fokust Pty Ltd (‘Fokust’) obtained judgment in the County Court against
Imagebuild Group Pty Ltd (‘Imagebuild’) for the sum of $540,453.86. The judgment was obtained
under s of the and was28R Building and Construction Industry Security of Payment Act 2002 (Vic)
consequent upon a determination of an adjudicator under that Act.
On 10 February 2017 Fokust served a statutory demand under s of the459E Corporations Act 2001 (
(‘the Act’).Cth)
On 3 March 2017 Imagebuild filed an originating process seeking an order setting aside the
statutory demand under s of the . Accompanying that originating process was an459G Act
affidavit of Joshua Watson, the ‘practice manager’ at the solicitors’ firm then acting on behalf of
Imagebuild. The affidavit was sworn on 3 March 2017. I will refer to it as the Watson affidavit.
On 19 May 2017 the originating process which had been filed came before an associate judge of this
Court. On 24 May 2017 the associate judge dismissed the application and published reasons.
Imagebuild has applied for leave to appeal the associate judge’s dismissal of the application, and
for certain other consequential orders should leave be granted and the appeal be allowed.
In view of the possible operation of time limits provided for under the , the application forAct
leave to appeal has been brought on and argued urgently. It is desirable that the application be
determined today given the potential effect of statutory time limits. For that reason these reasons
are briefer than they might otherwise have been.
The application for leave to appeal was argued on the basis that if leave were granted the Court
would proceed to determine the appeal itself forthwith, and counsel addressed the leave
application on that basis. The President of the Court of Appeal has made a determination under s

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of the permitting two judges of appeal to constitute and exercise all11(1A) Supreme Court Act 1986
the jurisdiction and powers of the Court of Appeal on this application and the consequent appeal
if leave were granted.
The associate judge’s decision
The associate judge dismissed Imagebuild’s application because he determined that an essential
requirement of an application under s of the had not been met. Section requires459G Act 459G
that a supporting affidavit be filed and served within a specified 21 day period. The associate judge
held that the Watson affidavit was not a supporting affidavit within the meaning of s .459G
In this respect, the associate judge quoted and relied upon a decision of the Federal Court of
Australia in (‘Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Ltd Graywinter
’), and upon a decision of the Supreme Court of New South Wales, Equity Division, in[1] Hansmar
(‘ ’).Investments Pty Ltd v Perpetual Trustee Co Ltd Hansmar [2]
.[1] (1996) 21 ACSR 581
.[2] (2007) 61 ACSR 321
The Watson affidavit
It is necessary to set out the Watson affidavit in full. Omitting formal parts, it reads:
1. I am the Practice Manager at the law firm Ainslie Harding & Wood Solicitors
and I am authorised to make this affidavit in support of the Plaintiff’s
application made under ss , and of the459G 459H 459J Corporations Act 2001
. I affirm to the following from my own knowledge save where I state(Cth)
otherwise.
2. I affirm that all matters contained in this affidavit are true based on my own
knowledge and to the best of my knowledge, information and belief based on
my inquiries of relevant persons.
Supporting Affidavit
3. On 10 February 2017, a Statutory Demand addressed to the Plaintiff dated 7
February 2017 (‘Demand’) and accompanying affidavit was served on the
Plaintiff at the Plaintiff’s registered address. The Plaintiff’s registered address is
the address located at Level 1, 48 High Street, Northcote, in the State of Victoria,
3070.
Now produced and shown to me and marked Exhibit ‘JW-1’ is a copy of
the Statutory Demand.
4. Ainslie Harding & Wood Solicitors have prepared the originating process and
the supporting affidavit of the Deponent, Brett Spits, the Director of the

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Plaintiff, to accompany the Plaintiff’s application to set aside or vary the
statutory demand.
the Current and Historical Company Search.
5. The originating process and a true copy of the supporting affidavit (unsworn)
will be filed with the Supreme Court of Victoria today; the Deponent is not
available for attendance at our office today as he is working in rural Victoria
and due to computer issues isn’t able to send us a sworn copy until Monday 6
March 2017.
6. A true copy of the supporting affidavit (unsworn) will be filed with the
originating process today.
the unsworn supporting affidavit of the Deponent.
7. I have been advised that the Deponent will be express posting the original
affirmed supporting affidavit tomorrow.
8. I expect to file the original affirmed affidavit of the deponent in support of the
Plaintiff’s application on or before 4:00 pm on 6 March 2017. The period for
compliance with the statutory demand ends on 3 March 2017.
The ‘supporting affidavit (unsworn)’ exhibited to the Watson affidavit addresses issues which are
said to ‘reduce the amount being sought’, and exhibits a draft County Court writ making claims in
relation to defects and liquidated damages for delay.
Section 459G of the Act
Section of the provides as follows:459G Act
(1) [ ] A company may apply to theApplication to set aside statutory demand
Court for an order setting aside a statutory demand served on the company.
(2) [ ] An application may only be madeTime limit for making application
within 21 days after the demand is so served.
(3) [ ] An application is made in accordanceRequirements for valid application
with this section only if, within those 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 supporting affidavit,
are served on the person who served the demand on the company.
Submissions of Imagebuild on the Watson affidavit

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Counsel on behalf of Imagebuild accepted that the existence of a supporting affidavit is a
prerequisite to the Court’s jurisdiction under s . Counsel accepted that an affidavit which did459G
no more than say that a supporting affidavit would be done later, as was hypothesised by
Sundberg J in , would not comply with s . But relying upon andGraywinter [3] 459G Graywinter
, and also upon the decisions in andHansmar Callite Pty Ltd v Adams [4] NA Investment Holdings Pty
, counsel submitted that an affidavit which sufficiently raised theLtd v Perpetual Nominees Ltd [5]
matters to be relied upon in seeking to set aside the demand, even if that were only done in
exhibits or by inference, was sufficient. He submitted that the Watson affidavit did those things.
, .[3] (1996) 21 ACSR 581 587
.[4] [2001] NSWSC 52
.[5] (2010) 79 ACSR 544
When it was put to counsel for Imagebuild that the Waston affidavit appeared to merely explain a
delay in swearing, serving and filing the supporting affidavit, he submitted that the relevant issue
was the effect of the Watson affidavit, not its purpose, and that if the affidavit did, in effect, raise
the relevant matters, then that was sufficient. He emphasised that the supporting affidavit
required by s did not need to raise the relevant matters by way of admissible evidence.459G
Submissions of Fokust
Counsel for Fokust submitted that the application must be determined by a consideration of the
Watson affidavit itself. He submitted it was not a supporting affidavit and that it did not profess to
be one.
Particular reliance was placed upon the references to the ‘supporting affidavit’, being the unsworn
affidavit yet to come, in paragraphs 4, 6 and 8 of the Watson affidavit. The reference in paragraph
1 of the Watson affidavit to that affidavit having been being sworn ‘in support of’ the application
did not detract from the fact, it was submitted, that the Watson affidavit was an explanation for
the delay in providing the required supporting affidavit and was not the supporting affidavit itself.
Counsel for Fokust emphasised that the Watson affidavit did not verify the contents of the
unsworn affidavit which it exhibited.
Counsel submitted that the Watson affidavit was either a product of a misconception that a good
explanation for delay could have the effect of extending the 21 day period or was an attempt to
circumvent by the ‘back door’ the strict 21 day time limit provided for by s .459G
Analysis
In my view the Watson affidavit is not an affidavit supporting the application to set aside the
statutory demand. What it is is an affidavit explaining the delay in the swearing, filing and service
of what was to be the supporting affidavit.

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The High Court has held that the requirement that a supporting affidavit be filed and served
within the specified period defines the jurisdiction of the Court under s .459G [6]
(1995) 184 CLR 265.[6] David Grant & Co Pty Limited v Westpac Banking Corporation
The High Court has also held that there is no power to extend time after the specified 21 day
period has elapsed. [7]
(2008) 232 CLR 314.[7] Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corp Ltd
An affidavit filed and served within the specified time which asserts that a supporting affidavit will
be sworn, or may be sworn, but not within time, and which explains the delay, is not itself a
supporting affidavit. Nothing said in the authorities relied upon by Imagebuild suggests that such
an affidavit would comply with s .459G
There may be cases where an affidavit directed at explaining delay might nevertheless be
sufficient to constitute a supporting affidavit. For example, such an affidavit might verify, on the
basis of instructions or otherwise, the contents of the affidavit which is proposed to be sworn. It is
significant that the Watson affidavit in this case does not purport to do that. The Watson affidavit
does no more than foreshadow what the deponent expects will be sworn, and explains why that
has not been done within the required 21 day time frame.
The fact that the foreshadowed as yet unsworn affidavit, if it had been sworn and served within
the requisite period, may have been sufficient to constitute a supporting affidavit under s is459G
not to the point.
If an affidavit of the nature of the Watson affidavit were held to be sufficient, in my view it would
be tantamount to permitting extensions of the statutory 21 day time period which the High Court
has made clear that the does not allow.Act
The decision of the associate judge was correct and leave to appeal should be refused.
ALMOND AJA:
I agree with the reasons given by Whelan JA.
In my opinion, for those reasons, leave to appeal should be refused.
WHELAN JA:
The order will be that leave to appeal is refused.

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(Discussion re costs.)
The orders will be that leave to appeal is refused. The applicant is to pay the respondent’s costs of
the application.

Imagebuild group pty ltd v fokust pty ltd [2017] vsca 131

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