A recent illustration of the operation of the Graywinter principle can be seen in the decision of the Victorian Court of Appeal in Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq). In that case, the company’s supporting affidavit filed and served within the 21 day period required by s 459G(3) of the Corporations Act 2001 (Cth) alleged overcharging by the creditor to raise a genuine dispute or an offsetting claim. The allegation of overcharging was made on a very specific basis and there was precise quantification of the alleged offsetting claim. After the expiration of the 21 day period, another affidavit was filed and served which alleged overcharging on a different basis and for a larger amount. Although the company claimed that no new ground not included in the supporting affidavit had been raised, the Victorian Court of Appeal held that the Graywinter principle precluded the company from relying on the overcharging ground in the later affidavit because it differed in character and type from that which had been raised in the supporting affidavit. The fact that both grounds raised the broad issue of overcharging was regarded as insufficient to satisfy the Graywinter principle. Read further about the case here.
Graywinter principle found to preclude reliance upon a ground first raised after the 21 day period
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