Supreme Court New South Wales

• Medium Neutral Citation: In the Matter of Prime City Investments Pty Ltd [2012] NSWSC 1287
• Hearing dates: 13 September 2012
• Decision date: 13 September 2012
• Jurisdiction: Equity Division - Corporations List
• Before: Brereton J

Decision

Affidavit rejected

• Catchwords: EVIDENCE - whether affidavit filed in earlier proceedings can be can be relied on - whether affidavit incorporated by reference - whether leave to rely on the affidavit should be given under UCPR r 31.9
• Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 31.9; (Cth) Corporations Act 2001, s 459G
• Cases Cited: David Grant and Co Pty Limited v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265; Robowash Pty Limited v Robowash Finance Pty Limited [2000] WASCA 409; (2000) 158 FLR 338; Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund (1996) 70 FCR 452; (1996) 21 ACSR 581
• Category: Interlocutory applications
• Parties: Prime City Investments Pty Limited ACN 002 328 663 - Plaintiff; Paul Jones & Associates Pty Limited - First Defendant; Andrew Wallace - Second Defendant
• Representation: Counsel: J Loxton - Plaintiff; S J Phillips - Defendant; Solicitors: Coopers Law Firm - Plaintiff; Access Law Group - Defendant
• File Number(s): 2012/180675

Judgment (ex tempore)

1 HIS HONOUR: I have allowed argument on this issue to take perhaps longer than might be usual on an evidentiary question, because I am conscious that its outcome may be almost determinative of the proceedings, though not necessarily so.

2 The affidavit of Leslie Wolfgang Hines Houlton in support of the plaintiff's application pursuant to (Cth) Corporations Act 2001, s 459G ("the s 459G affidavit"), sworn 7 June 2012, was short and direct, as follows:

1. I am the director of Prime City Investments Pty Limited, the plaintiff in these proceedings.

2. I am authorised to make this affidavit on the plaintiff's behalf.

3. On 18 May, 2012, the first defendant served on the plaintiff a statutory demand, a copy of the statutory demand is annexed hereto and marked "A".

4. I refer to and rely on my affidavit of 20 March 2012 (mistyped as 2011) filed in proceedings number 2012/00089058, a copy of which has been served on the first defendant in those proceedings.

5. The statutory demand referred to in those proceedings has been set aside.

6. Directions for the further conduct of those proceedings have been made and the matter has been stood over to 22 June 2012 for further mention.

7. I am also authorised to speak on behalf of Avenue Ten Pty Limited ACN 082 230 153 ("Avenue Ten").

8. Annexed hereto and marked "B" is a copy of a Statement of Claim filed in the District Court of New South Wales, matter number 2012/179302, between Avenue Ten, the first defendant and Asquared Planning Pty Limited.

9. Avenue Ten brings those District Court proceedings on the basis that it was the contracting party in respect of the matters being the subject of the first defendant's statutory demand and as deposed by me in my affidavit of 20 March 2012 referred to above.

3 The plaintiff now seeks to rely on Mr Houlton's affidavit of 20 March 2012, referred to in paragraph 4 of the s 459G affidavit. There are two separate ways in which this might be approached. One is on the basis urged by the plaintiff, that it is incorporated by reference in the s 459G affidavit, and had already been served in earlier proceedings. The second is pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 31.9, which governs when an affidavit filed in other proceedings may be used in evidence.

4 The distinction may be important, because if the 20 March 2012 affidavit were treated as incorporated in the s 459G affidavit, then it may well be that it enlarges the scope of the dispute that it is open to the plaintiff to agitate in these proceedings, beyond that which prima facie appears on the face of the 7 June 2012 affidavit. If it were admitted only as an affidavit filed in other proceedings, and not incorporated in the s 459G affidavit, it would not have the effect of enlarging the grounds of dispute that are open to be relied on by the plaintiff, according to the principle in Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund (1996) 70 FCR 452; (1996) 21 ACSR 581.

5 It is well established that compliance with s 459G(3) must be strict and precise [David Grant and Co Pty Limited v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265, 276-277 (Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed); Robowash Pty Limited v Robowash Finance Pty Limited [2000] WASCA 409; (2000) 158 FLR 338, 339]. This is so, in particular, in respect of the requirement that a complete copy of the supporting affidavit be served within the 21 days after service of the demand. Indeed, s 459G(3) refers to "those 21 days", and that is a reference back to s 459G(2), which provides that an application to set aside a statutory demand, "[m]ay only be made within 21 days after the demand is so served". The combined effect of s 459G(2) and (3) is that the application must be made, and a copy of the application and a complete copy of the supporting affidavit served, within 21 days after the demand is served. Robowash also makes clear that it is essential that a complete copy of the affidavit be served. In that case, the omission of four pages of the annexures to a 90-page affidavit was fatal to its validity, and there does not appear to have been any view contemplating the materiality of those four pages to the issues made any difference in this respect.

6 When the deponent of an affidavit says, "I refer to and rely on" a document, that does not put the document into evidence; subject to objection, annexing the document does so, and exhibiting the document does so. But if the document is neither annexed nor exhibited, but merely "referred to and relied upon", the document must separately be identified and tendered in the proceedings if it is to go into evidence. In the context of a creditor's statutory demand dated 18 May 2012, and apparently served that day, it just cannot be said that an affidavit of 20 March 2012 in other proceedings, even assuming that it had been served on the first defendant in those other proceedings, could be said to form part of the s 459G affidavit, just because the s 459G affidavit "referred to and relied upon" it. For that reason, the affidavit of 20 March 2012 does not form part of, and is not admissible as part of, the s 459G affidavit.

7 Rule 31.9 provides as follows:

31.9 Earlier evidence in other proceedings

(cf SCR Part 36, rule 7; DCR Part 28, rule 10)

(1) In any proceedings, evidence taken, or an affidavit filed, in other proceedings may not be used as evidence, saving all just exceptions and unless the court orders otherwise.

(2) Leave may not be granted under subrule (1) except to allow the evidence taken, or affidavit filed, in the other proceedings to be used in relation to the proof of particular facts.

8 The starting point is that an affidavit filed in other proceedings may not be used in evidence, subject to certain exceptions. Even when permitted to be used under those exceptions, it can only be used "in relation to the proof of particular facts". The "particular facts", in relation to the proof of which it might be relied on in this case, have not been identified. The affidavit in question has not been served in these proceedings. In those circumstances, it would be unjust to the defendant to permit it to be relied on at all under r 31.9.

9 Accordingly, I reject the affidavit of Leslie Wolfgang Hines Houlton sworn 20 March 2012 in proceedings 2012/89058.

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Decision last updated: 15 January 2013