No setting aside of statutory demand despite defect in form

The Queensland Court of Appeal in McElligott v Boyce [2011] QCA 117 illustrates that the mere absence of the prescribed warning statement outlining the consequences of non-compliance with a statutory demand is not sufficient reason for the purposes of s459J(2) of the Corporations Act 2001 (Cth) to have that statutory demand set aside.

In this case, it was not disputed that the statutory demand did not contain the warning statement outlining the consequences of non-compliance which is prescribed by the statutory form. The court referred to s459J(2) of the Corporations Act which states that a statutory demand must not be set aside owing merely to a defect in its form, unless that defect will cause substantial injustice. In this case, no substantial injustice was caused.