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[2026] NSWSC 381
General information, not legal advice.
Supreme Court of NSW
2026-04-16
Brereton J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: In the matter of Ulrich Pty Ltd as trustee for Tortuga Trust [2026] NSWSC 381
Hearing dates: 31 March 2026
Date of orders: 16 April 2026
Decision date: 16 April 2026
Jurisdiction: Equity - Corporations List
Before: Brereton J
Decision: Winding up application dismissed with costs
Catchwords: CORPORATIONS – winding up application –statutory demand – dispute as to date and mode of service – service at registered office – application to set aside statutory demand discontinued – whether company made application in accordance with s 459G – whether company precluded by s 459S from disputing effective date of service – determination of date of failure to comply with statutory demand – whether failure occurred within three‑month period for presumption of insolvency under s 459C –presumption not available – winding up application dismissed
Legislation Cited: Corporations Act 2001 (Cth)
Cases Cited: Biron Capital Ltd v Velowing Pty Ltd [2003] NSWSC 1181
David Grant & Co Pty Ltd (rec apptd) v Westpac Banking Corp (1995) 184 CLR 265; [1995] HCA 43
Golden Plantation Pty Ltd v TQM Design and Construct Pty Ltd; KCL Developments Pty Ltd v TQM Design and Construct Pty Ltd [2010] NSWSC 1453
In the matter of K-Bek Motors Pty Ltd [2017] NSWSC 1838
Perpetual Nominees Ltd v Masri Apartments Pty Ltd; Perpetual Nominees Ltd v AUS Constructions Pty Ltd [2004] NSWSC 551; 49 ACSR 719
Stack v Elster Metering Pty Ltd [2005] FCA 231
Texts Cited: N.A.
Category: Principal judgment
Parties: Commonwealth Bank of Australia (plaintiff)
Ulrich Pty Ltd (defendant)
Representation: Counsel:
D K Ratnam (plaintiff)
E A Walker (defendant)
Solicitors:
HWL Ebsworth Lawyers (plaintiff)
Safe Harbour Lawyers (defendant)
File Number(s): 2025/361041
Publication restriction: N.A.
The Commonwealth Bank of Australia Limited seeks an order that Ulrich Pty Ltd be wound up in insolvency pursuant to s 459A of the Corporations Act 2001 (Cth). Ulrich resists the order.
For the reasons set out below, the application fails.
The CBA served on Ulrich a statutory demand dated 5 February 2025. The demand was for payment of $1,012,305.50.
The date of service of the demand is critical on this application.
The CBA contends that service was “attempted” on 6 February 2025 by delivery of the statutory demand at the address recorded on the ASIC register as the address of Ulrich’s registered office. It contends that service was “effected” on 14 February 2025 by emailing a copy of the demand to the sole director of Ulrich at the time, Mr Jovan Sarai.
Ulrich filed an application to set aside the statutory demand on 7 March 2025. The application was propounded on the basis that Ulrich had been served on 14 February 2025. If the statutory demand was served on 14 February 2025, the application to set aside was made within the time provided for by s 459G. That section provides:
459G Company may apply
(1) A company may apply to the Court for an order setting aside a statutory demand served on the company.
(2) An application may only be made within the statutory period after the demand is so served.
(3) An application is made in accordance with this section only if, within that period:
(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.
The statutory period is 21 days. If the statutory demand was validly served on 6 February 2025, then the application to set aside was made out of time and could not be entertained: David Grant & Co Pty Ltd (rec apptd) v Westpac Banking Corp (1995) 184 CLR 265; [1995] HCA 43.
On 29 May 2025, Ulrich paid the CBA $736,711.68.
On 20 June 2025, Ulrich’s application to set aside the statutory demand was discontinued by consent.
The CBA commenced these winding up proceedings on 19 September 2025.
The originating process alleged that the statutory demand was served on 6 February 2025. By an amended originating process filed on 11 November 2025, the CBA deleted the contention that service was effected on 6 February 2025 and contended instead that it was effected on 14 February 2025.
The CBA seeks to rely on a presumption of insolvency to be made under s 459C. That section relevantly provides:
459C Presumptions to be made in certain proceedings
…(2) The Court must presume that the company is insolvent if, during or after the 3 months ending on the day when the application was made:
(a) the company failed (as defined by section 459F) to comply with a statutory demand;…
459F When company taken to fail to comply with statutory demand
(1) If, as at the end of the period for compliance with a statutory demand, the demand is still in effect and the company has not complied with it, the company is taken to fail to comply with the demand at the end of that period.
(2) The period for compliance with a statutory demand is:
(a) if the company applies in accordance with section 459G for an order setting aside the demand:
(i) if, on hearing the application under section 459G, or on an application by the company under this paragraph, the Court makes an order that extends the period for compliance with the demand—the period specified in the order, or in the last such order, as the case requires, as the period for such compliance; or
(ii) otherwise—the period beginning on the day when the demand is served and ending 7 days after the application under section 459G is finally determined or otherwise disposed of; or
(b) otherwise—the statutory period after the demand is served.
The CBA contends that Ulrich made an application in accordance with s 459G on 7 March 2025, which engaged s 459F(2). It contends that the application was disposed of on 20 June 2025, when the application was discontinued. That being so, it contends that the period for compliance ended 7 days afterwards, on 27 June 2025 in accordance with s 459F(2)(a)(ii).
Returning to the presumption of insolvency under s 459C, on the CBA’s case the Court is to presume Ulrich is insolvent if, during or after the 3 months expiring on 19 September 2025, Ulrich failed to comply with the statutory demand. On this analysis, the failure to comply had to occur on or after 19 June 2025 if the presumption is to be engaged. The CBA contends the presumption applies given that the failure to comply occurred on 27 June 2025.
Ulrich contends that service of the statutory demand was effected on 6 February 2025. It now contends it did not make an application in accordance with s 459G for an order setting aside the demand, because no application was made within the statutory period. It contends that s 459F(2)(a) was never engaged, and thus it is to be taken to have failed to comply with the statutory demand 21 days after it was served on 6 February 2025. On this basis, it contends that the presumption of insolvency in s 459C does not arise. That is because it did not, during or after the 3 months expiring on 19 September 2025, fail to comply with the statutory demand. Its failure occurred in late February 2025.
The case turns on whether the presumption of insolvency is to be made. The CBA only presses the application to wind up Ulrich on the basis of the presumption. Ulrich accepts that if the presumption is to be made, an order for winding up should be made. It does not otherwise seek to prove that it is solvent.
The resolution of the issue of whether there is a presumption of insolvency in this case turns on two issues. They are:
whether Ulrich is precluded by s 459S(1) from contending that service was effected on 6 February 2025; and
if not, whether service was effected on 6 February 2025.
The CBA did not contend that Ulrich was prevented from asserting that service was effective on 6 February 2025 by reason of estoppel, agreement, abuse of process or any other rule or doctrine of preclusion, other than s 459S.
459S Company may not oppose application on certain grounds
(1) In so far as an application for a company to be wound up in insolvency relies on a failure by the company to comply with a statutory demand, the company may not, without the leave of the Court, oppose the application on a ground:
(a) that the company relied on for the purposes of an application by it for the demand to be set aside; or
(b) that the company could have so relied on, but did not so rely on (whether it made such an application or not).
(2) The Court is not to grant leave under subsection (1) unless it is satisfied that the ground is material to proving that the company is solvent.
The CBA contends that Ulrich now relies on a ground that it could have relied on in an application to set aside the statutory demand. Ulrich contends that the ground it now relies on could not have been relied on in any application to set aside the statutory demand. It does not seek leave against the possibility that it is wrong about that.
Counsel for the CBA identified the “ground” on which Ulrich now seeks to rely upon in violation of s 459S in the following way. He submitted that in the course of Ulrich’s application to set aside the statutory demand, Ulrich could have, but did not, raise a contention about which of the two modes of service was effective. He submitted that Ulrich could have raised a challenge to the CBA relying on service on 6 February 2025, relying on s 459J. He also submitted that if this contention had been raised, the issue of whether s 459F(2)(a)(ii) applies would have been considered.
Ulrich relied on the decision of Austin J in Perpetual Nominees Ltd v Masri Apartments Pty Ltd*; Perpetual Nominees* Ltd v AUS Constructions Pty Ltd [2004] NSWSC 551; 49 ACSR 719. His Honour observed (at [9]):
The central proposition in my reasoning is that the words "a ground … that the company could have… relied on [in an application to set aside the statutory demand]" in s 459S(1)(b) direct the attention of the court to whether, having regard to the facts, the company was in a position, at any time during the 21 day period specified by s 459G(2), to raise the relevant grounds in an application to set aside the demand.
His Honour referred to the decision of Barrett J in Biron Capital Ltd v Velowing Pty Ltd [2003] NSWSC 1181. The defendant in that case wished to contend on a winding up application that the debt asserted in the statutory demand had been reduced in consequence of a receiver's sale, and that there was an offsetting claim because of inadequacy of the sale price. The sale occurred after the expiry of the 21-day time limit for challenging the statutory demand. Barrett J held that leave under s 459S was not required because the grounds relied on by the defendant could not have been relied on in an application to set aside the statutory demand, because the facts occurred after the expiry of the 21-day period. Barrett J observed (at [10]):
Implicit in what I have just said is the proposition that, in speaking of 'a ground … that the company could have relied on', s 459S is concerned not with a ground of a particular kind or description in a generic sense but, rather, with a ground that was actually available to be asserted according to the facts and circumstances existing at the time when it was open to the company to resort to the s 459G procedure.
Austin J expressly concurred with this passage in Masri.
Ulrich submits that the ground it raises in opposition to the winding up application is that there is no presumption of insolvency because it did not, during or after the 3 months ending on the day the application was made, fail to comply with a statutory demand. It says that it could not have been known that there was no presumption of insolvency until 3 months had expired from the time of its failure to comply with the statutory demand. It submits that it would have been impossible to seek to set aside the statutory demand on the basis that there was no presumption of insolvency, because the presumption depends on non-compliance with the demand.
I accept Ulrich’s submission. Ulrich is not, on this application, making any contention that it could have made to seek to set aside the statutory demand. On the contrary, it is embracing the statutory demand. On this application, Ulrich contends that the statutory demand was served on 6 February 2025. That contention could not have been relied upon as a ground for setting aside the statutory demand.
I appreciate that the CBA faced a dilemma once Ulrich made the application under s 459G. If service had been effective on 6 February 2025, the application was out of time and the time for compliance continued to run. What then was the CBA to do, given the 3-month limit on the s 459C presumption of insolvency?
A dilemma of this kind was considered by Barrett J in Golden Plantation Pty Ltd v T**QM Design and Construct Pty Ltd; K**CL Developments Pty Ltd v T**QM Design and Construct Pty Ltd [2010] NSWSC 1453. His Honour observed (at [32]):
The dilemma posed by Ms Culkoff is not fanciful. But it need not be insurmountable. The creditor does not have to await the hearing of the purported s 459G application to test the proposition that there is, in truth, no s 459G application. Whether or not there is will most often turn on relatively straightforward and short questions about service, the time of service and the form of the documents, being, as Mr Johnson of counsel pointed out on behalf of the plaintiffs, questions that lend themselves to a summary dismissal application, without any need to deal with the merits of whatever case the company seeks to advance under ss 459H or 459J.
The CBA could have adopted this course.
It was also open to the CBA to seek to secure in some binding way an acceptance by the parties that the efforts to effect service on 6 February 2025 were to be disregarded. If the CBA had decided that it would not assert that service was effective on 6 February 2025, or that it would not press that service as being effective, it could have sought confirmation from Ulrich, at an early time, that Ulrich would not assert in any winding up application that service was effected on 6 February 2025. Had Ulrich declined to give that confirmation, the CBA could have made an urgent application of the kind contemplated by Barrett J.
I reject the CBA’s submission that Ulrich is precluded by s 459S from advancing, as a ground of opposition, that there is no presumption of insolvency. Ulrich is not precluded from contending on this application that service was effected on 6 February 2025.
The CBA’s case now is that service was effected on 14 February 2025 by email, and that there was a failed attempt to serve the statutory demand on 6 February 2025. Notwithstanding that position, in an affidavit that was read by the CBA before me, Ms Sandra Ciganda (a manager at the CBA) gave evidence that the statutory demand was served on 6 February 2025. Her evidence was that the source of her knowledge is an affidavit of service of Mr William Guest affirmed 25 August 2025.
Mr Guest’s affidavit of 25 August 2025 was filed by the CBA on 19 September 2025. Although the affidavit was filed and served in these proceedings by the CBA, it was read at the hearing by Ulrich, not by the CBA. That is, Ulrich read the affidavit of service prepared by the CBA’s process server to seek to prove that Ulrich was served on 6 February 2025. Mr Guest was cross-examined by counsel for the CBA. Unsurprisingly, there was no challenge to his credit. Also unsurprisingly, Mr Guest was unable to add much to his affidavit of service.
Mr Guest’s evidence, which I accept, was that on 6 February 2025 he attended the premises at 24 Oliver Street, Freshwater, NSW at approximately 4.50pm. The lights were off (which is unremarkable given that it was summer, and at 4.50pm the daylight is usually still strong). There was no-one present at the premises. Mr Guest said the premises appeared to be undergoing renovations. He placed the statutory demand and accompanying affidavit in an envelope and left them under the front door.
In another unusual feature, the CBA tendered parts of the affidavit of Mr Sarai (who had been sole director of Ulrich) affirmed on 29 April 2025. That affidavit was filed and served by Ulrich in support of its application to set aside the statutory demand. Mr Sarai’s affidavit established that the premises at 24 Oliver Street, Freshwater had been sold on 13 March 2024, and that its new owners demolished the old premises and were constructing two new dwellings at the site. Mr Sarai first became aware of the statutory demand on 14 February 2025.
It is not disputed that, as at 6 February 2025, the address recorded on ASIC’s register as the registered office of Ulrich was 24 Oliver Street, Freshwater. Nor is it disputed that Mr Guest left the statutory demand and accompanying affidavit at the premises at 24 Oliver Street, Freshwater. If that was the address of Ulrich’s registered office, service was effective. Section 109X of the Corporations Act provides:
109X Service of documents
(1) For the purposes of any law, a document may be served on a company by:
(a) leaving it at, or posting it to, the company’s registered office;…
The issue is whether 24 Oliver Street, Freshwater was the address of Ulrich’s registered office. The CBA contends that it had ceased to be the address of the registered office once the premises had been sold and Ulrich ceased to conduct any business there.
"registered office", in relation to a company or registered body, means the registered office of the company or body under section 142 or 601CT, as the case requires.
(1) A company must have a registered office in this jurisdiction. Communications and notices to the company may be addressed to its registered office.
(2) A company must lodge notice of a change of address of its registered office with ASIC not later than 28 days after the date on which the change occurs. The notice must be in the prescribed form.
(2A) An offence based on subsection (1) or (2) is an offence of strict liability.
(3) A notice of change of address takes effect from the later of:
(a) the seventh day after the notice was lodged; or
(b) a later day specified in the notice as the date from which the change is to take effect.
The address specified in the application for registration for the company's proposed registered office becomes the address of the company's registered office on registration.
Ulrich ceased to have any connection with the property at 24 Oliver Street, Freshwater in March 2024. That address had, at least up to March 2024, been Ulrich’s registered office. As at 6 February 2025, Ulrich had not lodged any notice of a change of address of its registered office with ASIC.
The CBA contends that the identification of a company’s registered office is not to be found by looking at the address that is recorded in the register maintained by ASIC. It contends that s 142 contemplates that the address of the registered office may change in advance of the change being recorded on the register. In particular, s 142(2) contemplates that a company must lodge a notice of a change of address of its registered office with ASIC no later than 28 days after the date on which the change occurs. This appears to contemplate a change occurring sometime before the obligation to notify ASIC of the change arises. Otherwise, it may be thought difficult to see how there could ever be a contravention of s 142(2).
An important function of the requirement of having a registered office is to enable persons to identify an address for service. That would be seriously undermined if the register could not be relied upon to identify a company’s registered office. It would be a remarkable and surprising thing if persons wishing to effect service could not rely on the address of a company’s registered office as disclosed in ASIC’s register. That would undermine the utility of the register.
In my view, the reference in s 109X to serving a document by leaving it at, or posting it to, the company’s registered office contemplates the document being left at, or posted to, the address recorded in the ASIC register as the address of the registered office. Section 142(3) provides that a notice of change of address “takes effect” on a date that is necessarily after the date the notice is lodged. This contemplates a change of address becoming effective only after a notice is lodged. Reading s 109X and s 142(3) together, in my view the address for service contemplated by s 109X is the address shown as the registered address on ASIC’s register, and any change will not relevantly take effect unless and until a notice of change of address is lodged with ASIC and has taken effect.
This conclusion is consistent with the decision in Stack v Elster Metering Pty Ltd [2005] FCA 231. Spender J concluded at [50] that:
…the earliest date on which a change of registered address ‘takes effect’ for the purpose of service is seven days from the date on which a notice is properly lodged with ASIC: s 142(3) of the Corporations Act.
It is also consistent with the many cases where a company has been found to have been duly served because documents have been delivered to the address recorded on ASIC’s register as the address of the registered office, notwithstanding that the company had ceased to occupy the premises. It is implicit that the address of the registered office remains the address that is shown as the address on ASIC’s register, notwithstanding that the company has vacated the premises. An example is In the matter of K-Bek Motors Pty Ltd [2017] NSWSC 1838 at [5].
It follows that in this case, the address of Ulrich’s registered office, at least for the purpose of service, remained 24 Oliver Street, Freshwater after March 2024, notwithstanding the sale of the property. That was the address for service in accordance with s 109X. Mr Guest’s evidence establishes that the statutory demand was served on 6 February 2025.
This means the CBA cannot rely on the presumption of insolvency, and that the application to wind up Ulrich must fail.
**********
Biron Capital Ltd
Velowing Pty Ltd
(1995) 184 CLR 265