MATTER : Section 459G of the Corporations Law

Corporations - Application to set aside a statutory demand - Application out of time - No extension of time possible

Acts Interpretation Act 1901 (Cth), s 36(2)

1 MASTER BREDMEYER : These are applications to set aside two statutory demands and are made under s 459G of the Corporations Law. They first came before me on 24 January 2001 when the applicant was represented by counsel. The respondents argued that the applications were outside the 21 day time limit imposed by the section and therefore should be dismissed. I agreed with that submission and made orders dismissing the applications and ordered the applicant to pay the respondents' costs to be taxed if not agreed. I thought counsel for the applicant was caught by surprise by the respondents' submissions and I directed that the orders were not to be executed for 24 hours. I did so in order that counsel might consult with his instructing solicitor. Pursuant to that direction, the applicant has asked me to rehear the application which I have done on short notice.

2 In each of these applications a statutory demand was served on 19 December 2000 and the applications to set aside the demands were filed in this Court and served on 12 January 2001. Section 459G(2), (3) of the Corporations Law provides:

(2) An application may only be made within 21 days after the demand is so served.

(3) An application is made in accordance with this section only if, within those 21 days:

(a) an affidavit supporting the application is filed with the Court; and

(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company."

3 According to the section, the 21 days expired on Tuesday 9 January 2001. Counsel for the applicant asked me to extend time under the Corporation Rules O 81G r 7(4). I quote all of r 7 so that subrule (4) can be seen in context:

(a) prohibits, permits or requires an act or thing to be done within, by, or before the end of; or

(b) otherwise prescribes, allows or provides for,

a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event, as the case may be.

(2) Without limiting subrule (1), in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted.

(3) If the last day of any period prescribed or allowed by this order for an act or thing to be done falls on a day that is not a business day in the place where the act or thing is to be or may be done, the act or thing may be done on the first business day in the place after that day.

(4) In calculating a period of time for the purposes of this order, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted."

"1. Application of this order and other rules of court

(1) Unless the Court otherwise orders, this order applies to a proceeding in the Court under the Corporations Law, or the ASIC Law, that is commenced on or after the day on which the Supreme Court Amendment Rules (No 2) 2000 came into operation.

... "

4 I consider that O 81G r 7(4) does not apply to these applications. The 21 day period is not prescribed by the order. The 21 day period is fixed by s 459G. There is no power to extend that period under s 459G, s 467A or s 1322: see David Grant & Co Pty Ltd v Westpac Banking Corp [1995] HCA 43; (1995) 184 CLR 265.

5 The Corporations Rules cannot affect that principle. If the 21 day period had been prescribed by the Corporations Rules then r 7(4) would give an automatic extension between 25 December and 1 January for the Christmas period. By way of comparison, the general Rules of the Supreme Court, O 63 r 4 prescribes a 21 day appeal period and O 3 r 3 provides for an automatic extension for lodging an appeal notice between 24 December and 15 January next. But, because the 21 day period in this case is fixed by statute, O 81G r 7(4) does not apply. There is no statutory power to give an extension so the applications will be dismissed.

6 The above reasons are as I delivered them orally. The following thought is new and occurred to me as I was preparing these reasons for publication - which I did at the request of the applicant. I illustrate the pre-eminence of the statute over the rule in this way. If, for example, the 21 day period for an application to set aside a statutory demand under s 459G, expired on a public holiday, the applicant would get an extension of time to the next business day. But that would be under statute, viz s 36(2) of the Acts Interpretation Act 1901 (Cth), and not by virtue of O 81G r 7(3).

7 The applicant is to pay the respondents' costs of today to be taxed, if not agreed.