Supreme Court of the ACT|2001-04-06|Before: Gummow J

Kanwa Nominees Pty Ltd v Australian Taxation Office [2001] ACTSC 30 (6 April 2001)

Kanwa Nominees Pty Limited v Australian Taxation Office [2001]

PRACTICE AND PROCEDURE - Validity of application to set aside statutory demand - Whether the twenty one day service of application includes public holidays.

David Grant & Co v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 278-9

1. The challenge to the validity of the application to set aside the statutory demand is dismissed, with costs.

1. This is an application to set aside a statutory demand pursuant to s 459G of the Corporations Law. The matter is before me on a preliminary point, being the question of whether the application to set aside the statutory demand was served on the respondent within time.

2. The creditors statutory demand was served by posting the document by pre paid mail to the registered office of the company on 14 February 2001, which was a Wednesday. The affidavit indicates that the letter was posted in Parramatta, and was posted to the registered office of the company in Cooma. Mr Kanawaty has stated in his affidavit that he received the statutory demand on 19 February 2001, which was a Monday. In the absence of any evidence to the contrary, it seems to me that it is appropriate to say that the statutory demand was served on the applicant on 19 February 2001, as the delay of only two working days seems to be consistent with ordinary mail services from a suburban posting address to a rural centre.

3. The application to set aside the statutory demand was filed on 13 March 2001. This is 22 days after 19 February. The respondent submitted that the statutory demand is thus filed out of time, as s 459G provides that an application to set aside a statutory demand must be filed within 21 days of service. There is no discretion within the Corporations Law to extend this time, and it is established that failure to serve an application within 21 days is fatal to an application (per Gummow J in David Grant & Co v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 278-9).

4. The 21 day time limit in this case would have required the application to be served on 12 March 2001, which was a public holiday in the Australian Capital Territory. Section 31 (2) of the Acts Interpretation Act 1901 (Cth) provides:

"Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, or on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place."

5. The application to set aside a statutory demand must be made to the Court by way of an application and supporting affidavit filed within 21 days pursuant to s 459G. This application has been brought in the Supreme Court of the Australian Capital Territory, and in the Australian Capital Territory the 12 March 2001 was a public holiday. It seems to me that it must follow that, for the purposes of determining whether this application was filed within time, the effect of s36 of the Acts Interpretation Act must be taken into account. The effect of s 36 of that Act is that, although a count of 21 days from the date of service, being 19 February 2001, would indicate that the deadline for filing the application and affidavit was 12 March 2001, because that date was a public holiday in the Australian Capital Territory, the expiry of 21 days must be taken to the next working day, being 13 March 2001.

6. The application to set aside the statutory demand was filed in this court, together with the supporting affidavit, on 13 March 2001. It was thus within time. The challenge to the validity of the application to set aside the statutory demand is dismissed, with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Solicitor for the Defendant: Australian Government Solicitor

Interpretation Act 1901

Kanwa Nominees Pty Ltd v Australian Taxation Office [2001] ACTSC 30

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Judgment (15 paragraphs)

Kanwa Nominees Pty Ltd v Australian Taxation Office [2001] ACTSC 30 (6 April 2001)

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