Case: Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 70 FCR 452
Outcome: followed
Section 459G(3)(a) states that an application to set aside a statutory demand can only be made if an "affidavit supporting the application" is filed within 21 days of service of the demand. Unless such an affidavit is filed and served in time, there is no application under s 459G and, consequently, s 459H will not apply. If there is no application, the Court has no jurisdiction and the situation cannot be remedied by filing further supporting material at a later stage; Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 70 FCR 452 at 455 and 459. If there is a valid application, further affidavits may be filed to supplement the case made in the initial supporting affidavit; Graywinter Properties at 460. The defendant submits that the affidavit filed on 21 December 2006 does not set out a genuine offsetting claim and is therefore not a supporting affidavit for the purposes of s 459G(3)(a). Consequently, it is submitted, the Court's jurisdiction to set aside the statutory claim is not enlivened. 16 The leading authority on the question of the minimum requirements for an affidavit to be a "supporting affidavit" as required by s 459G(3)(a) is generally accepted as being the decision of Sundberg J in Graywinter Properties. His Honour observed at 459: In order to be a "supporting affidavit", an affidavit must say something that promotes the company's case. An affidavit which merely says "I am a director of the company but am too busy at present to make a full affidavit, and I will do so later" would not support the application. It would in no way advance, further or assist the company's cause, which is to have the notice set aside. At the other extreme, the affidavit need not detail, in admissible form, all the evidence that supports the contention of a genuine dispute.... That evidence must be available at the hearing of the application to set aside, because that application is for final and not interlocutory relief... 17 In Elm Financial Services Pty Ltd v MacDougal [2004] NSWSC 560 at [7] , Barratt J, echoing comments he had previously made in Process Machinery Australia Pty Ltd (t/as DCL Engineering) v ACN 057 260 590 Pty Ltd [2002] NSWSC 45 at [21] - [22] , said of the " Graywinter principle": What it means is that the application ... and the affidavit in support of that application, both filed and served within the 21 day period stipulated in s 459G(3) , 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. The content of the application and affidavit must convey, even if it be by necessary inference, a clear delineation of the area of controversy so that it is identifiable with one or more of the grounds made available by ss 459H and 459J for setting aside statutory demands. The process of delineation may not be extended after the end of the 21 day period although it is open to the plaintiff to supplement the initial affidavit by way of additional evidence relevant to the area of controversy identified within the period. 36 The plaintiff also relied on a supplementary affidavit of Dr Chisholm filed on 10 August 2007. Annexed to this affidavit are purchase orders, bills of lading and invoices relating to the dye supplied by the defendant in early 2005. The affidavit provides additional factual detail in support of the plaintiff's claim to have an offsetting debt. Given that the first affidavit had clearly indicated the general nature of its case it is entirely legitimate for the plaintiff to expand the factual grounds on which it relies in this way; SMEC International 38 ACSR at 599, Graywinter Properties 70 FCR at 460.