BETWEEN : AUSTRALIAN FOODS COMPANY PTY LTD (ACN 081 404 686)

Application to set aside a statutory demand - Application filed within time but served out of time - Court's failure to return a completed copy to the applicant for service - Completed copy of application needs to be served

1 MASTER BREDMEYER: This is an application to set aside a statutory demand. The application is dated 1 May and relates to a statutory demand served by the respondent on the applicant on 10 April 2002. The application was filed on the 21st day, together with the supporting affidavit and two copies. According to the filing clerk, Ms Ebony Bostock, who has sworn an affidavit, she lodged the documents at the court and said she was waiting to have them given back. She was told that the documents would have to go in for checking and that she would be given a date later. She then asked for copies which were stamped with the court's stamp and given back to her, but with no hearing date on them. The applicant's solicitor considered that he could not serve a copy of the application on the respondent unless it showed a hearing date. I consider he was right in that view. That was the view taken by Santo J in Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 1181. A completed copy of the application showing the hearing date and the affidavit in support was served on 8 May.

2 Sections 459G of the Corporations Act requires both the application and the supporting affidavit to be filed and served on the person who made the demand within 21 days of the receipt of the demand. Those time limits are not capable of extension: see David Grant Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265.

3 The application will be dismissed because the applicant failed to serve the application on the respondent within the 21-day limit. The mistake was caused by the court staff, which I regret. I have spoken to the Officer-in-Charge of the Registry and he assured me that proper procedures were in place for the handling of s 459G applications, but, in this case, those proper procedures were not observed. I hope that the mistake will not happen again. In the circumstances, I will order a refund of the filing fee paid.

4 I will also say what Santo J said in Benonyx. The law on s 459G is absolutely rigid and that can produce hardship. However, if the applicant proposes to oppose a winding-up application based on the demand and seeks leave to challenge the demand under s 459S, the applicant may very well get a sympathetic hearing. Santo J put it this way:

"While this result appears productive of hardship and unduly technical, it is in my view regrettably unavoidable. No doubt if the matter reaches the stage of an application under section 459S, to the extent that the court is satisfied as to the matters there set out, then winding-up can be reviewed in the overall context of what the court may then taken into account."

5 The orders will be (1) application dismissed; (2) applicant to pay the respondent's costs of the application to be taxed, if not agreed and (3) filing fee to be refunded to the applicant.