When attempting to set aside a statutory demand (“SD”), please don’t forget to actually ‘file’ the supporting affidavit with the court registry, as a law firm recently found out the hard way.
On 18 April 2018, Irwin Homes’ lawyers applied to court to set aside the SD.
The 21 day period was to end on 24 April 2018 (in just 6 days).
Irwin operates in Gladstone, and the lawyers in Brisbane.
As the original affidavit may take many days in the post to get to the lawyers, a copy of the affidavit was instead filed with the court.
However, the court registry merely labelled the affidavit “POF” (“placed on file”) and added it to the correspondence part of the file, but not the court file.
The Court ruled that an affidavit is not ‘filed’ until the registry has recorded it on the court file (Rule 968 Uniform Civil procedure Rules).
So what could they have done instead?
(a) direct the registry to record it on file and not just rely on them;
(b) apply to court for approval to file the copy affidavit to protect the 21 day period limitation;
(c) monitor the court file, especially for contentious issues; and
(d) don’t wait to the end of the 21 day period to deal with an SD!
This will likely be an expensive lesson; so treat SD’s with respect and caution.