Plaintiff v Defendant

CORPORATIONS - Winding up - Where statutory presumption of insolvency disputed -Whether application fails to comply with s 459Q of the Corporations Act 2001 (Cth) or is defective or misleading for failing to provide particulars of email service of the statutory demand - Oral application to amend the application to raise actual insolvency refused - Corporations Act 2001 (Cth) ss 459Q, 459R, 467(3)(e).

1. By originating process filed on 19 February 2025, Flooring Xtra (Aust) Pty Ltd ('Flooring Xtra') sought an order that the defendant be wound up in insolvency under the provisions of the Corporations Act 2001 (Cth) ('Corporations Act'), relying upon the statutory presumption arising from the failure to comply with a statutory demand.
2. Flooring Xtra issued a creditor's statutory demand to the defendant dated 23 October 2024, demanding the sum of $22,015.65. It is not in dispute that the defendant received the statutory demand twice, once via email sent to the defendant's director on 28 October 2024 and also via ordinary pre-paid post sent later that same day. The parties accept that the letter sent by post was properly addressed, such that the statutory presumptions as to service in the ordinary course of post apply, and service would be presumed effected on 7 November 2024.
3. It is also not in dispute that the defendant did not comply with the statutory demand within 21 days of service, regardless of whether the 21 days is counted from the date the demand was received by email or the deemed date of receipt by post.
4. There is a dispute between the parties as to whether the statutory presumption of insolvency provided for in s 459C(2)(a) of the Corporations Act arises. The parties accept that if the demand was served by ordinary post, then the presumption will arise and the defendant bears the onus of rebutting the presumption of insolvency.
5. Conversely, if receipt of the statutory demand by email was effective service, then the parties agree that the originating process was filed too late to give rise to the presumption of insolvency.
6. There have been a number of hearings of this proceeding. At the hearings on 19 March 2025, 16 April 2025 and 30 April 2025, Mr Con Ioannidis was given leave to appear on behalf of the defendant as its sole director. Initially, there were four supporting creditors, including Dahlsens Building Centres Pty Ltd ('Dahlsens'). At the hearing on 19 March 2025, the Court was advised that the defendant had reached a resolution with Flooring Xtra and one supporting creditor. Timetabling orders were made for any application by a supporting creditor to be substituted as the plaintiff. At the hearing on 16 April 2025, the Court was advised that the defendant had reached a resolution with two of the three remaining supporting creditors, and a timetable was made for Dahlsens to make any substitution application as the remaining supporting creditor.
7. On 30 April 2025, the defendant's director obtained an adjournment of the proceeding on the basis that the defendant had retained legal representation and wished to oppose the applications for substitution and winding up. On 13 May 2025, a notice of appearance was filed on behalf of the defendant by its solicitors. On 14 May 2025, Dahlsens was substituted as the plaintiff pursuant to s 465B of the Corporations Act, and timetabling orders were made for the defendant's responding evidence by 26 May 2025.[1] On 26 and 27 May 2025, the defendant filed opposing evidence. On 28 May 2025, the defendant was granted, by consent, an opportunity to file further evidence by 11 June 2025, and timetabling orders were made for the parties' submissions.[2] The defendant filed further evidence on 11 June 2025 and written submissions on 25 June 2025, both of which address the defendant's solvency and whether the presumption of insolvency is rebutted. Dahlsens filed evidence in reply and its first set of submissions on 25 June 2025.
8. The issue of whether the presumption of insolvency arises was first raised by the affidavit of Mr Ioannidis filed on 1 July 2025, which was filed together with the defendant's supplementary submissions. At the hearing on 2 July 2025, the defendant was granted leave to rely upon this evidence filed out of time, which Dahlsens did not oppose.[3] The Court made orders allowing Dahlsens to file reply evidence on the question of solvency and responding evidence on the question of service of the statutory demand by 16 July 2025. Orders were also made for the exchange of submissions on the service issue.[4]
9. At the hearing on 28 July 2025, Dahlsens argued that the presumption of insolvency arose, and that the defendant's solvency evidence was not sufficient to rebut that presumption. To establish the presumption of insolvency, Dahlsens relies upon the affidavit of service of the statutory demand of Kylie Anne Keppel filed on 19 February 2025 by Flooring Extra, and upon its written submissions filed on 25 June 2025 and 24 July 2025.
10. The defendant sought that the application be dismissed on the grounds that the presumption of insolvency had not been established. The defendant foreshowed that it would object to any application to amend the originating process, and sought orders excluding the solvency evidence filed by the defendant and any submissions made in respect of it.[5] If the presumption of insolvency arises, the defendant opposes the application on the grounds that it is solvent and, alternatively, on the ground that it would not be in the interest of the creditors for it to be wound up. The defendant relies upon four affidavits of Mr Ioannidis, filed on 14 May, 26 May, 11 June and 1 July 2025, and the affidavit of its solicitor, Chloe Singh, filed on 27 May 2025.
11. In the course of considering its decision after the hearing on 28 July 2025, it came to the Court's attention that the Corporations Act permits service of statutory demands by electronic communication, but the provisions were not the subject of submissions by either party. The relevant provisions came to the Court's attention as they are discussed in an authority relied upon by the defendant, although not for the purpose of establishing valid service by electronic communication pursuant to the Corporations Act.[6] By email dated 22 September 2025, the Court invited the parties to make submissions at a mention listed for 24 September 2025 as to:

(a) what impact, if any, Division 2 of Part 1.2AA of the Corporations Act (Technology Neutral Sending of Documents and Related Matters) has on the question of whether the statutory demand was served by email; and

(b) the following authorities which were not brought to the Court's attention_: Re New Wilkie Energy Group Ltd_ ('New Wilkie')[7]; Re Stamford Bridge SW6 Pty Ltd[8]; and Sandys Swim Pty Ltd v Morgan ('Sandys Swim').[9]

1. In order to accommodate counsel availability, the mention was adjourned to 27 October 2025 and the parties each filed further written submissions addressing these matters.[10] On 23 September 2025, an order was made by consent pursuant to s 459R(2) of the Corporations Act extending the period in which the application must be determined to 28 November 2025.
2. During the hearing on 27 October 2025, Dahlsens made an oral application for leave to amend its originating process to rely upon the evidence filed in this proceeding to establish that the defendant is insolvent, in alternative to its application grounded on the s 459C(2) presumption of insolvency. The defendant opposes this application.
3. The key issue in this proceeding is whether or not the presumption of insolvency has arisen. That is: was the demand served by email, or was it served by post? If the demand was served by email and the presumption of insolvency does not arise, it will be necessary to consider whether Dahlsens should be given leave to amend its originating process to articulate alternative grounds for establishing that the defendant is insolvent. If such leave is granted, then the final issue to be determined will be whether Dahlsens has established that the defendant is insolvent.
4. If the demand was served by post and the presumption of insolvency consequently arises, then it will be necessary to determine whether the defendant has rebutted that presumption. If not, the Court will need to decide whether to exercise its discretion to refuse to wind up the defendant.

B Has the presumption of insolvency arisen?

1. Subsection 459C(2)(a) of the Corporations Act provides 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 the company failed (as defined by section 459F) to comply with a statutory demand'.
2. Subsection 459F(1) of the Corporations Act reads as follows:

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:

...

(b) otherwise - the statutory period after the demand is served.

1. The statutory period is 21 days.[11]
2. Accordingly, the s 459C presumption of insolvency will only arise if in the period of three months prior to the filing of the originating process, the company failed to comply with a statutory demand. When an originating process has been filed more than three months after the company's failure to comply with a statutory demand, the statutory demand is often referred to as being 'stale', as it can no longer be relied upon to establish the presumption of insolvency.
3. If the evidence does not establish that the company failed to comply with the statutory demand during the three months prior to the filing of the originating process, the applicant cannot rely upon the presumption of insolvency in prosecuting its application to wind up the company.[12]

1. Here, the originating process was filed on 19 February 2025. Accordingly, the presumption of insolvency could only arise and be relied upon by Dahlsens if in the period three months prior to that date, i.e. on or after 19 November 2024, the defendant failed to comply with a statutory demand. This requires the demand to be served on or after 29 October 2024 so that the 21-day period expires on or after 19 November 2024.
2. Accordingly, if email delivery of the demand to Mr Ioannidis effected service on 28 October 2024, the statutory presumption of insolvency does not arise. Alternatively, if the email was not effective service of the demand, and it was instead served by post deemed to be delivered on 7 November 2024, the statutory presumption of insolvency will arise.

1. The following facts are not in dispute.
2. On 28 October 2024 at 12.27 pm, the solicitors for Flooring Xtra sent an email to Mr Ioannidis, which was copied to two other email addresses with the defendant company's domain name.[13] The email's subject line reads 'You -v- Ironsons Homes Pty Ltd' and the body text reads 'Dear Sirs, Please see attached correspondence'.[14]
3. The following documents were attached to the email:

(a) a 'Letter to Debtor enclosing Creditor's Statutory Demand.pdf', the text of which is set out below;[15]

(b) an image of the statutory demand dated 23 October 2024 in .pdf format;[16]

(c) the accompanying affidavit of Scott Enno sworn in support of the demand, dated 23 October 2024;[17] and

(d) the invoices issued by Flooring Xtra to the defendant referred to as Annexure A to Mr Enno's affidavit.[18]

1. It is convenient to set out the text of the letter in full:

23 October 2024

The Director

Ironsons Homes Pty Ltd

C/o FDA Accountants Pty Ltd

43-47 Halsey Road

AIRPORT WEST VIC 3042

& By Email [Mr Ioannidis' email address]

Dear Mr Ioannidis

re: Flooring Xtra (Aust) Pty Ltd -v- Ironsons Homes Pty Ltd ("you")

Please find enclosed by way of service (in accordance with s 109X of the Corporations Act 2001), Creditor's Statutory Demand for Payment of Debt and accompanying Affidavit.

Should the Statutory Demand not be complied with, we are instructed to commence wind up proceedings forthwith.

Yours faithfully

ROTMAN & MORRIS

1. At 1.08 pm on 28 October 2024, Mr Ioannidis forwarded the email and its attachments to his lawyers.[19]
2. At approximately 4.50 pm on 28 October 2024, Kylie Anne Keppel, a receptionist at Rotman & Morris, sent the same documents which were attached to the 28 October email to the defendant's registered office by ordinary post.[20]

1. There is no doubt that service via ordinary pre-paid post properly addressed to the company's registered office will effect service of a statutory demand. This is a prescribed mode of service set out in in s 109X(1)(a) of the Corporations Act, which provides that a document may be served on a company by leaving it at, or posting it to, the company's registered office. Unless there is contrary evidence, the statutory presumptions as to the delivery of properly addressed mail in the ordinary course of post will deem service to have occurred on the seventh working day after posting.[21] It is not in dispute that the statutory presumptions apply to deem that this letter was delivered on 7 November 2024, being the seventh working day after it was posted.[22]
2. Where it is established that the demand came to the attention of the responsible officer of the company, this is sufficient to establish effective service, even though the mode by which it came to their attention is not expressly provided for in s 109X of the Corporations Act.[23] This is because, as Young J said in Howship Holdings Pty Ltd v Leslie (No 2), in a passage regularly cited with approval:

The ordinary meaning of 'service' is personal service, and personal service merely means that the document in question must come to the notice of the person for whom it is intended. The means by which that person obtains the document are usually immaterial. This is clear in cases that have been considered good law over the centuries.[24]

1. Where the demand has come to the actual attention of the sole director of the company, it will be presumed, unless a strong case to the contrary is shown, that the director is the responsible officer and that service has been effected.[25]
2. Where actual notice of the demand is established, the 21-day statutory period will commence to run from the date that the demand came to the relevant officer's attention.[26] This is regardless of whether the demand was also delivered to the company on a later date by other means.[27] Recently, in New Wilkie, Black J described these principles as 'well established'.[28]
3. The courts have accepted that service of the demand occurred, and the 21-day period for compliance began to run, on the date when the demand came to the actual attention of the responsible officer by the following means:

(a) by personal service on the sole director of the company at a point in time where this was not a prescribed method of service in s 109X, when considering an application for a declaration that the demand had not been duly served;[29]

(b) by facsimile received prior to the demand having also been received by post, with the court finding that it had no jurisdiction to hear a s 459G application made more than 21 days after receipt of the facsimile;[30]

(c) by a director collecting it from the post office after the demand was initially sent to the wrong address, when considering whether the presumption of insolvency had arisen;[31]

(d) by post actually received prior to the delivery date presumed by statute in the ordinary course of post, in determining that the court had no jurisdiction to hear the s 459G application filed and served more than 21 days after actual receipt;[32]

(e) by email received prior to receipt by post, in determining that the court lacked jurisdiction to hear the s 459G application filed more than 21 days after email receipt;[33]

(f) by email received after the demand was also sent by post which had been returned to the creditor by Australia Post, when considering whether the presumption of insolvency arose;[34] and

(g) by a director who admitted receipt of the demand by undisclosed means after unsuccessful service on the debtor's registered office was followed by service on various addressees related to the debtor. The court considered that the date the director admitted that he received the demand was the date of service of the demand for the purpose of considering whether the presumption of insolvency arose.[35]

1. The principle that actual notice is sufficient to establish service has also been applied to the service of applications pursuant to s 459G to set aside statutory demands,[36] and to the service of other court documents, including by the Court of Appeal of Western Australia.[37]
2. The Court's attention was drawn to two first-instance decisions which could appear at first blush to be inconsistent with the principle that the 21-day statutory period commences on the date the relevant company officer has actual notice of the demand: CED WISE AB Services Pty Ltd v Hilltops Pastoral Group Pty Ltd ('CED WISE')[38] and EC Newstead Property Group Pty Ltd v H&T Qld Pty Ltd ('EC Newstead').[39] However, closer analysis shows neither case to be inconsistent with the principles outlined above.
3. In CED WISE, following service at the registered office, the creditor's solicitors sent a letter by email to a director of the company with the statutory demand enclosed 'for ease of reference'. The email stated the date on which the demand had been served, the date on which the time for compliance had expired, and that they had instructions to commence a winding-up application.[40] The court rejected a 'shifting of ground' by the creditor at the hearing to seek to rely upon the later date of the email as the date the demand was served for the purpose of establishing the presumption of insolvency.[41] CED WISE has not been subsequently considered or cited with approval.
4. In EC Newstead, the creditor sent an email to two officers of the company which enclosed the demand, stated that it had been sent by express post, and asked the officers to advise the creditor once it had been received by post. The email also attached photographs of the express post envelope and the process of posting.[42] The statutory demand was received by express post three days later. The company relied upon the express post service to establish that its s 459G application was brought within time. If the email transmission was effective service of the demand, then the s 459G application would have been brought out of time and the Court would not have jurisdiction to hear the application. Randall AsJ found that the demand was served by express post and not by email. In doing so, his Honour had regard to the fact that the creditor's email did not purport to effect service of the demand, but rather indicated reliance upon postal service. Randall AsJ considered the strict time limit within which a s 459G application could be made and the potential for unfairness, saying:

An email transmission on day one will inevitably be received by the company earlier than a pre-paid letter posted on the same day. Although, there may be some circumstances where it is appropriate to consider whether the email transmission constitutes effective informal service, this is not one of those. To allow the defendant to rely upon 'service' by the email transmission would in these circumstances make a mockery of the strict time limits imposed by the regime. To allow otherwise would be to erode the certainties imposed by the regime and would lead to patent unfairness in circumstances where the time limits are immutable.[43]

1. The learned judge did not address whether the two officers who received the email were the officers of the company responsible or authorised on behalf of the company to deal with the statutory demand. Accordingly, it is not apparent whether the principle of service by actual notice applies to the circumstances in EC Newstead. In any event, it does not appear that his Honour was taken to relevant authorities addressing effective service by actual notice other than Re Kornucopia Pty Ltd (No 1) ('Kornucopia').[44] Randall AsJ distinguished Kornucopia on the basis that Sifris J's finding that follow-up email service constituted effective service was made expressly in the event that his conclusion that service had been effected by post was wrong.[45] EC Newstead has not been subsequently considered or cited with approval, and the Court was not taken to any authorities which took a similar approach of only considering whether service had been effected by actual notice where formal service by a mode prescribed in the Corporations Act had failed. Such an approach is contrary to that taken in Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd, V & M Davidovic Pty Ltd v Professional Services Group and Re Caason Investments Pty Ltd.[46]
2. There are a number of authorities which consider the application of these principles in determining whether delivery of a statutory demand by email will be effective service.[47]
3. However, since 2020, the Corporations Act has provided for service of statutory demands via electronic communication to a 'nominated email address'. With effect from 16 December 2020, ss 105A, 105B and 600G were introduced into the Corporations Act.[48] Section 600G allowed electronic communication of documents required or permitted to be given under Chapter 5 of the Corporations Act. Pursuant to s 600G, service to a 'nominated email address' will be valid, provided the statutory requirements are met.
4. In Re Bioaction Pty Ltd ('Bioaction'),[49] Cheeseman J summarised the operation of s 600G as follows:

Section 600G authorises a document to be given to the recipient by means of an electronic communication (as newly defined in s 9). The giving of the document by electronic communication may be achieved by giving the recipient sufficient information to allow the recipient to access the document electronically: s 600G(3). However, electronic communication may only be used if, at the time, it is reasonable to expect the document would be readily accessible so as to be usable for subsequent reference and there is a nominated electronic address (as defined) in relation to the recipient. The definition of nominated electronic address extends to cover the situation where the addressee has not in fact nominated such an address. In that case, the nominated electronic address will be an electronic address which the originator believes on reasonable grounds is a current electronic address for the addressee for receiving electronic communications, even though the addressee has not nominated that address, or indeed, any address.[50]

1. A number of decisions have followed Bioaction and held that s 600G permits service of a statutory demand by email (provided the legislative requirements were made out) and that it is facultative, not mandatory, and did not exclude other means of service, such as s 109X of the Corporations Act.[51]
2. Sections 105A and 105B deem the date on, and location at which, electronic communications are sent and received, unless otherwise agreed by the originator and the addressee of the electronic communication. The effect of s 105A is that proof of effective service by email does not require proof that the documents delivered by email were actually accessed or reviewed, or even came to the attention of the addressee or anyone else.[52] Subsections 105A(4) and (5) deem the electronic communication to have been received when it reaches the addressee's nominated electronic address. Subsection 105B(3)(b) provides that an electronic communication to a company is deemed to be received at its registered office, unless otherwise agreed. In addition, s 161 of the Evidence Act 2008 (Vic) ('Evidence Act') creates a rebuttable presumption that emails have been sent and received at the time recorded in the email.[53]
3. With effect from 15 September 2023, the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023 (Cth) expanded the range of documents which could be sent by electronic communication beyond the Chapter 5 documents to which s 600G applied. The 2023 Act introduced ss 110C and 110D as part of Division 2 - Technology Neutral Sending of Documents and Related Matters, and repealed s 600G 'on the basis the effect of the section is preserved and applied more broadly to the global communications regime' that 'appl[ies] the technology neutral sending rules to all insolvency documents'.[54] As addressed below, ss 110C and 110D are in almost identical terms to the former s 600G insofar as they relate to documents required or permitted to be sent under Chapter 5. The statutory presumptions found in ss 105A and 105B as to the time and place at which an electronic communication is received have been retained without substantive amendment. The definitions of 'electronic communication' and 'nominated email address' have been retained without amendment. The definition of 'document' remains as per the broad definition found in s 2B of the Acts Interpretation Act 1901 (Cth).[55]
4. Section 110C specifies the documents to which the technology neutral sending of documents applies. It relevantly provides:

110C Documents to which this Division applies

Sending documents

(1) This Division applies to any document covered by subsection (3) or (4) that is required or permitted under this Act to be sent by a person or entity (the sender) to another person or entity (the recipient).

(3) This subsection covers a document that is required or permitted [to] be sent by the sender to the recipient under:

...

(c) Chapters 5 to 5D; or

(6) This Division applies to a requirement or permission to send a document, whether the expression send, give, serve or dispatch, or any other expression, is used.

(7) To avoid doubt, for the purposes of this Division, a document is not a document that is required or permitted under this Act to be sent merely because section 109X, 601CX or 1200R provides that the document may be served in a particular way.

1. Subsections 110C(1) and (3) address the documents which may be sent by electronic communication in almost identical terms to the former s 600G(1). The only difference is that s 110C(1) refers to documents required or permitted to be 'sent', whereas s 600G(1) applied to any document permitted or required to be 'given'.[56] However, s 110C(6) makes clear that this difference is of no consequence, as the Division applies 'whether the expression send, give, serve or dispatch, or any other expression, is used.' Subsection (7) clarifies that the provision applies regardless of the other means of service of documents set out in s 109X.
2. Section 110D allows documents to be sent or accessed electronically. It relevantly provides:

110D Technology neutral sending of documents

(1) The document may be sent to the recipient:

(a) by sending the document in a physical form; or

(b) if subsection (2) is satisfied - by sending the recipient sufficient information in physical form to allow the recipient to access the document electronically; or

(c) if subsection (2) is satisfied - by sending the document in electronic form by means of an electronic communication; or

(d) if subsection (2) is satisfied - by sending the recipient sufficient information in electronic form, by means of an electronic communication, to allow the recipient to access the document electronically; or

(2) This subsection is satisfied if, at the time the document is sent, it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference.

...

Other ways of sending documents not limited

(4) Subsection (1) does not limit the ways in which a person may send a document.

Address for sending document

...

(6) Paragraphs (1)(c) and (d) apply only if:

...

(b) where the recipient is not covered by subsection (7) - the sending of the document mentioned in paragraph (1)(c), or the sending of the information mentioned in paragraph (1)(d), is to a nominated electronic address of the recipient.

1. The recipient of a statutory demand is not covered by subsection 110D(7), which addresses sending documents to members of companies, registered schemes, managed investment schemes and the like.
2. Insofar as s 110D addresses sending a document by electronic communication, it is almost identical in form to s 600G. Subsections 600G(2) and (3), which addressed sending a document by electronic communication or by giving sufficient information to allow the recipient to access the document electronically, have been replicated in ss 110D(1)(c) and (d). The requirements found in s 600G(4) have been transposed into s 110D as follows:

(a) the requirement in s 600G(4)(a) for it to be reasonable to expect that the document would be readily accessible so as to be usable for subsequent reference is found in s 110D(2); and

(b) the requirement in s 600G(4)(b) for the electronic communication to be sent to a 'nominated electronic address' of the recipient is found in s 110D(6)(b).

1. Section 9 of the Corporations Act defines the following terms used in ss 110C and 110D. These terms were also used in s 600G and their definitions have not changed:

(a) a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or

(b) a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.

...

nominated electronic address, in relation to the addressee of an electronic communication, means:

(a) the most recent electronic address nominated by the addressee to the originator of the electronic communication as the electronic address for receiving electronic communications; or

(b) if:

(i) the addressee has nominated an electronic address as mentioned in paragraph (a) and the originator knows, or there are reasonable grounds to believe, that the address is not a current electronic address for the addressee; or

(ii) the addressee has not nominated an electronic address as mentioned in paragraph (a);

an electronic address that the originator believes on reasonable grounds to be a current electronic address for the addressee for receiving electronic communications.

1. Given the similarity in the statutory provisions as between the former s 600G and ss 110C and 110D, the s 600G authorities remain apt despite the 2023 amendments to the Corporations Act. The Court's attention was drawn to Sandys Swim, where the Federal Court of Australia found that the demand had been served by both email and post.[57] The covering letter serving the statutory demand stated in bold under the salutation 'By email and express post: [email address]', and the text of the letter itself stated 'pursuant to s 109X of the Corporations Act ... we enclose by way of service' the statutory demand.[58] The requirements of s 600G and the definition of 'nominated electronic address' having been met, the court found that the date of the email was the relevant date from which the statutory period must be calculated, rather than the later date of postal receipt.[59] In doing so, the court rejected arguments that the email did not effect service because the covering letter refers to s 109X (which does not permit service by email), and that the company had thereby been misled into believing that the creditor was relying upon postal service only.[60]

1. Dahlsens argues that the demand was served by post because Flooring Xtra did not intend to serve the statutory demand by email, and that this is apparent because:

(a) The text of the covering email sent to Mr Ioannidis does not assert that the email is sent by way of service.

(b) The text of the covering letter expressly states that the statutory demand enclosed is being served in accordance with s 109X of the Corporations Act, which provides for service by posting or leaving documents at a company's registered office and not for service by email.

(c) The originating process and supporting affidavit make no reference to service of the statutory demand by way of email and only rely upon service by ordinary post.

1. In Dahlsens' submission, this evidence demonstrates that the letter and attachments were merely being copied to the director and other email addresses as a courtesy.
2. There is no suggestion that the demand was not also received by post. On this basis, Dahlsens submits that it is not appropriate or necessary for the Court to consider whether there has been effective informal service by email, relying upon the approach taken in EC Newstead. Dahlsens distinguishes Kornucopia and Woodgate v Garard Pty Ltd[61] on the grounds that in those cases, electronic service is only considered in the alternative to formal service under s 109X of the Corporations Act, in circumstances where it was argued that there had been no formal service or that the presumptions for formal service had been successfully rebutted.
3. In my view, the demand in this case was served by email and by post. Accordingly, the 21-day period commences to run from the earlier date of service, being the date the demand was served by email. This is because the defendant has established that the demand came to the actual attention of its sole director on the date the email was sent and received. Mr Ioannidis gives unchallenged evidence that he received the demand by email on 28 October 2024 and forwarded it immediately to his lawyers.[62]
4. I do not accept Dahlsens' submission that the evidence establishes that Flooring Xtra did not intend to serve the statutory demand by email. The email is drafted in formal language, referring to the defendant as 'Dear Sirs', indicating it is addressed to the company rather than the individual recipients of the email. Further, its body text simply draws attention to the attached correspondence. Unlike EC Newstead, the text of the email does not suggest that it is sent as a courtesy. Nor does it refer to service having been effected by other means. The attached covering letter is formal solicitor correspondence from the creditor's solicitors. It is addressed to 'the Director' and following the postal address it expressly states '& By Email' and sets out Mr Ioannidis' email address. The salutation used is 'Dear Mr Ioannidis', the director to whom the letter was sent by email. The letter states: 'Please find enclosed by way of service (in accordance with s 109X of the Corporations Act 2001)'. I accept that the reference to s 109X can only be a reference to service by post, however, in my view, this does not detract from the clear intention expressed in the letter to also enclose the documents by way of service by email.
5. In any event, I do not accept that it is of particular relevance to consider whether Flooring Xtra intended to serve the documents by email, a submission which was made without the benefit of authority.[63] This argument fails to take into account the fundamental proposition that the object of service is to bring the document to the relevant person's attention, so that they are aware of it and may take steps to resist its consequences.[64] A failure to recognise that service has been effected when it is admitted or established that the intended recipient had actual notice of the document would lead to an absurdity where a person will be held not to have been served despite admitting receipt.[65] The service letter was expressly stated to be sent by email and by post. This is not a situation like CED WISE, where the email correspondence attaching the demand was sent after the time for compliance had expired and the creditor had held out to the debtor that the demand had been served on an earlier date. Further, there are many examples of the court finding service had been effected in circumstances where the creditor did not intend, or may not have intended, to serve the proceeding by the means accepted by the court.[66]
6. For the same reason, I do not accept that the Court should only look to whether there has been effective informal service in circumstances where formal service has not occurred. Whilst the Court addressed the effectiveness of formal service before informal service in Kornucopia, that decision does not specifically address whether this is the only manner in which the question must be approached and it is not authority for the proposition relied upon by Dahlsens. The learned judge considered the two contended means of service in the chronological order in which the events took place. This is appropriate and consistent with the principles to which I have referred in paragraphs 30 to 34 above. EC Newstead may stand as authority for the proposition that the Court should only address informal service if formal service is ineffective, but it has not been the subject of subsequent consideration or approval. If it was the case that the email service in EC Newstead was to the responsible officers of the company - which is unclear - EC Newstead would be out of step with the fundamental object of service being to give notice. It would also be inconsistent with several other single-judge decisions that do not appear to have been brought to the learned [67]dge's attention.67
7. I do not consider the question of when service was effected to be answerable only by reference to the mode of service relied upon by Flooring Xtra as set out in the originating process pursuant to the requirements of s 459Q. This is because it is always open to a defendant to oppose a winding-up application on the ground that the presumption of insolvency does not arise because service was not effected in the manner asserted by the applicant. In such a case, it may be open to the applicant to seek leave to amend its originating process to introduce new particulars of service of the demand and failure to comply, or to allege actual insolvency. An application for leave to amend will be addressed in accordance with the Court's ordinary practice and procedures.[68]
8. Dahlsens accepts that it is well-recognised that a statutory demand may be served by email, regardless of whether the documents served outline that they are being served pursuant to s 109X of the Corporations Act, as described in New Wilkie.[69] However, Dahlsens seeks to distinguish its position on the basis that in the present circumstances, the defendant did not apply to set aside the demand under s 459G.[70] I do not accept that this is a relevant distinction. The fact that the defendant did not file an application under s 459G is not to the point and is entirely irrelevant to the date of the demand's service for the purpose of establishing the presumption of insolvency under s 459C(2)(a). Further, it would be a nonsense if the law were to apply different rules to determine the date on which a statutory demand was served when it considered the question of jurisdiction under s 459G as opposed to the statutory presumption of insolvency. In any event, the principle that service will be effective on the date that the demand was brought to the attention of the relevant officer has been applied when determining whether the statutory presumption has arisen.[71]
9. Dahlsens also says that the Court should not allow the defendant to rely upon email service because this issue was not raised until the sixth return, after the substitution order was made. Dahlsens submitted that it would suffer significant prejudice if the defendant is allowed to challenge Dahlsens' reliance upon the statutory presumption at a time when the original plaintiff that effected service of the demand, Flooring Xtra, is no longer party to this proceeding. This argument cannot succeed in circumstances where Dahlsens did not oppose the defendant's application for leave to file the affidavit addressing service and chose not to take the opportunity to file responding evidence.[72] Dahlsens has not adduced any evidence of prejudice arising from it being the substituted plaintiff. In any case, a substituted plaintiff stands in the shoes of the original plaintiff, and proceeds as if it were the original applicant.[73] Accordingly, it must meet any defence that might be raised by the defendant, including any argument as to whether the original plaintiff's evidence establishes the s 459C presumption.
10. The defendant submits that in any event, the requirements of ss 110C and 110D have been met, such that the demand was served by electronic communication to the defendant's nominated email address. The defendant submits that the evidence establishes that the Flooring Xtra had reasonable grounds to be believe that the three email addresses to which the statutory demand were sent were current electronic addresses for the company to receive electronic communications, within the statutory meaning of 'nominated electronic address'. Dahlsens argues that it is not appropriate for the Court to consider whether the statutory requirements for service by electronic communication were met, as the covering letter did not purport to serve the demand under ss 110C and 110D of the Corporations Act. Further, Dahlsens says that it is unfair to consider this because it did not have an opportunity to adduce evidence on whether the recipient email addresses were the defendant's 'nominated email address', as defined in the Corporations Act. I accept that unfairness would arise, and for this reason I do not consider it necessary to address the defendant's submissions as to whether service was effected pursuant to ss 110C and 110D. However, the service by email remains effective for the reasons outlined above, because it came to the notice of the defendant's sole director.

1. I have found that the statutory demand was served on the defendant by email on 28 October 2024. Therefore, the defendant is taken to have failed to comply with the demand pursuant to s 459F of the Corporations Act on 18 November 2024, being 21 days after the demand was served. The originating process was filed on 19 February 2025, which is more than three months after the date of the defendant's non-compliance with the demand. Therefore, the presumption of insolvency under s 459C(2)(a) does not arise and it cannot be relied upon by Dahlsens in support of its application to wind up the defendant.

C Should leave be granted to amend the originating process?

1. As I have already described, the question of whether the statutory demand is stale was first raised by the defendant on 1 July 2025. Mr Ioannidis explains that he did not realise the importance of the date for service until he retained lawyers in early May 2025.[74] Until that point in time, the parties and the Court had proceeded on the basis that the presumption of insolvency arose, and timetabling orders for solvency evidence were made accordingly.
2. In the defendant's written submissions filed that same day, 1 July 2025, the defendant:

(a) raised issues of unfairness to the defendant arising from the fact that the defendant had filed solvency evidence under the misapprehension that the presumption arose, pursuant to orders that had been made prior to the defendant having obtained legal representation;[75]

(b) sought orders dismissing the proceeding on the basis that there is no evidentiary basis to wind up the defendant, and for exclusion of the solvency evidence filed by the defendant on the grounds that it is unfairly prejudicial or improperly obtained under ss 135, 136, or 138 of the Evidence Act;[76] and

(c) argued that the originating process failed to comply with s 459Q(a), and was therefore defective for failing to set out particulars of service of the demand on the company and the failure to comply with the demand.[77]

1. The Court gave leave to the defendant to rely upon its evidence of email service without opposition. Dahlsens was granted leave to file reply evidence on service by 16 July 2025 and the parties were ordered to exchange further submissions on service by 23 July 2025.[78]
2. On 23 July 2025, the defendant filed further submissions addressing service and the path the Court should take in the event that it is found that the presumption of insolvency did not arise. In these submissions, the defendant pre-emptively made arguments in the event that Dahlsens sought leave to amend the originating process to raise alternative particulars of actual insolvency. The defendant argued that:

(a) amendment to the originating process could not cure the asserted defect of failing to comply with s 459Q(a), citing Deputy Commissioner of Taxation v Melking Holdings Pty Ltd ('Melking').[79] Further, it argued that s 467A of the Corporations Act could not cure the defect because it had caused substantial injustice to the defendant, which had filed solvency evidence in ignorance of the importance of the date of service of the demand by email, citing Kornucopia;[80] and

(b) the original plaintiff's affidavit misled the Court by improperly asserting the statutory presumption and it was a material abuse of the Court's process for the original plaintiff to compel the defendant to produce evidence adverse to its own interest.[81]

1. Dahlsens did not file any additional evidence addressing service of the statutory demand. In its written submissions on service filed on 24 July 2025, Dahlsens submitted that the demand had been served by post, such that that the presumption of insolvency arose. Dahlsens' written submissions did not address any arguments in the alternative in the event that the defendant's challenge to the presumption of insolvency was successful. Critically, Dahlsens did not seek to amend the originating process to raise actual insolvency as an alternative ground for winding up the defendant. Dahlsens maintained this position at the hearing on 28 July 2025, where its counsel argued that the application should be granted on the grounds that the presumption of insolvency arose and had not been rebutted.
2. Dahlsens continued to maintain this position in its written submissions filed on 23 October 2025. These submissions argued that the question of whether the presumption of insolvency arose was one of jurisdiction, which counsel accepted is not the case.[82] Dahlsens argued that the Court could grant it leave pursuant to ss 459P(2) and (3) of the Corporations Act to proceed with the winding-up application if it is satisfied that there is a prima facie case that the company is insolvent. In the context of this argument, Dahlsens submitted that the Court cannot be satisfied on the evidence as adduced at the hearing on 28 July 2025 that the defendant is or could be solvent.[83] However, during the course of the hearing on 27 October 2025, Dahlsens' counsel acknowledged that s 459P(3) is irrelevant.[84] This is because it only applies if Dahlsens does not have standing as a creditor under s 459P(1). In the absence of standing under s 459P(1), Dahlsens would only have standing if the Court grants it leave as a contingent or prospective creditor under s 459P(2)(a), which it may do under s 459P(3) if it is satisfied that there is prima facie case that the defendant is insolvent. However, there is no suggestion that Dahlsens is not a creditor. The failure to establish the presumption of insolvency has no impact upon Dahlsens' standing as a creditor. It is a judgment creditor whose debt has not been paid. Dahlsens therefore has standing under s 459P(1) and it does not require leave of the Court to make this application.
3. It was not until the additional hearing on 27 October 2025 that Dahlsens sought to argue that the defendant should be wound up on the grounds that it was actually insolvent.[85] When pressed, counsel acknowledged that amendment to the originating process would be required in order to raise this new ground.[86]
4. In support of its oral application to amend the originating process, Dahlsens argued that the following evidence establishes that the defendant is actually insolvent:

(a) first, the defendant's unexplained failure to pay the judgment debt dated 5 March 2025 in the sum of $151,728.90 owed to Dahlsens, referred to in the affidavit in support of Dahlsens' substitution application;[87]

(b) secondly, the late payment of the debt owed to Flooring Xtra in this proceeding;[88] and

(c) thirdly, that the evidence and analysis adduced by the defendant as to a temporary loss of liquidity does not support the argument that it is solvent, and the defendant has not provided updated evidence to the Court which supports a stronger solvency position.[89]

1. Dahlsens submits that the Court should grant leave to amend, as the parties have already adduced evidence and made submissions on the question of whether the defendant has successfully rebutted the presumption of insolvency. Dahlsens submits that it would be inappropriate to exclude the solvency evidence, because its filing occurred as a result of the defendant's lateness in raising the question of whether the statutory demand was stale.
2. In addition to the reasons set out in its written submissions filed on 1 and 23 July 2025 summarised above, the defendant opposes the amendment on the grounds that if it were allowed, the defendant will have been denied:

(a) procedural fairness regarding the evidence relied upon by Dahlsens to establish insolvency; and

(b) an opportunity to file further evidence which addresses:

(i) the present financial position of the defendant, noting the time that has passed; and

(ii) Dahlsens' new argument that the defendant's failure to pay the debt owed to Dahlsens and the late payment of the Flooring Xtra debt establishes insolvency regardless of the stale statutory demand.[90]

1. I do not accept that the originating process is defective for failing to comply with s 459Q(a) or that the Flooring Xtra's evidence of service of the demand was misleading. The originating process sets out the relevant particulars sought to be relied upon by the original plaintiff in this proceeding, and in doing so, it complies with s 459Q. As Colvin J said in Melking:

By reason of the terms of s 459Q, a valid application to wind up in insolvency that relies on an alleged failure to comply with a statutory demand must give particulars of the alleged failure that is said to have occurred prior to the commencement of the application. If the Court ultimately finds that there was not a failure to comply as particularised that does not mean that the application was invalid. The requirement is to give particulars of the failure to comply that is relied upon by the applicant. Of course, there must be a bona fide basis for the particulars. It must be a basis which exists prior to the commencement of the application. If not, the application will be an abuse of process. But it is not an abuse just because ultimately the claim of a failure to comply is not upheld by the Court.[91]

1. The affidavit of service filed by Flooring Xtra exhibits a copy of the covering letter from its solicitors, which refers to the fact that the letter is sent by email and post.[92] I therefore do not accept that this evidence or the originating process is misleading, as it expressly refers to the fact the demand was also sent by email to Mr Ioannidis. The affidavit and the originating process set out the particulars of service relied upon by Flooring Xtra, namely postal service. As it has transpired, the Court has accepted that the demand was served by post, but has found that the presumption of insolvency does not arise because it was also earlier served by email. The winding-up application was properly commenced and I reject the defendant's submission that it was invalid or that there was any abuse of process on the part of Flooring Xtra.
2. Subsection 467(3)(e) of the Corporations Act provides that the Court may allow a winding-up application to be amended. An application for leave to amend will be addressed in accordance with the Court's ordinary practice and procedures.[93]
3. The Court was referred to two authorities that considered an application to raise actual insolvency in response to a challenge to the presumption of insolvency relied upon in the creditor's application. In each case, leave to amend was refused:

(a) In CED WISE, the creditor sought leave, on short notice, to amend the originating process to raise actual insolvency after the Court had determined that the statutory demand was stale. The plaintiff's proposed amendment application was refused because it did not have fair prospects of success because the evidence sought to be relied upon by the creditor was not admissible evidence of insolvency. This was because the creditor sought to rely upon unsworn evidence from the company's director and new recently-served statutory demands for which the 21-day statutory period had not yet expired.[94]

(b) In Melking, an application to amend to raise actual insolvency was refused on the basis that it was made on short notice and would give rise to unfairness to the debtor company, which would need to adduce evidence as to its current financial position.[95]

1. In addition, the defendant referred to Kornucopia, which addresses amendment to an originating process under s 467 in circumstances of non-compliance with s 459Q. There, Sifris J considers whether the non-compliance is a defect or irregularity in the winding-up application and the impact of s 467A, which provides that an application must not be dismissed merely because of a defect unless the Court is satisfied that substantial injustice has been caused.[96] In doing so, his Honour concludes that the Court must make orders curing a defective application unless this would cause the company substantial injustice that could not be remedied by other means.[97] His Honour gives the following example:

A company without notice of the particulars which support an attempt to have it wound up would, in the vast majority of cases, have no difficulty in establishing 'substantial injustice' of a kind that should result in the application's dismissal.[98]

1. As I have found that there is no defect in the application, but rather that the grounds relied upon by Dahlsens have not been successful, s 467A is not relevant to the determination of Dahlsens' application for leave to amend the originating process.
2. I decline Dahlsens' eleventh-hour application to amend the originating process to seek to rely upon actual insolvency.
3. The parties and the Court proceeded at the hearing on 28 July 2025 on the basis that Dahlsens solely relied upon the presumption of insolvency, with the consequence that failure to establish the presumption would lead to dismissal of the application in the ordinary way. Dahlsens' submissions focussed upon whether or not the defendant had rebutted the presumption of insolvency.
4. It was not until 27 October 2025, many months after Dahlsens was first put on notice as to the argument regarding the stale demand, that Dahlsens considered the implications for its case should that argument be successful. On 27 October 2025 Dahlsens sought to argue orally that the evidence established that the defendant was actually solvent. This alternative argument was raised at the last moment, following the Court asking Dahlsens to address the consequences that should follow if the statutory demand were found to be stale. Dahlsens makes this argument despite having not adduced any evidence addressing the actual insolvency of the company, other than evidence that the defendant did not comply with Flooring Xtra's statutory demand and has not paid the judgment debt owed to Dahlsens. It also made the argument without prior notice to the defendant, which was taken by surprise.
5. Dahlsens seeks to amend the originating process so that it may seek to prove insolvency by reference to the evidence adduced by the defendant to rebut the presumption of insolvency. In doing so, Dahlsens' submissions focussed almost entirely on the asserted failure of the defendant's evidence to prove that the defendant is solvent.[99] Dahlsens further argued that it has proved that the defendant is insolvent, because the defendant did not provide updated evidence of insolvency on 27 October 2025, at which time Dahlsens' demand remained unpaid.[100]
6. As the statutory demand is stale, if the amendment were allowed, it would fall to Dahlsens to prove that the defendant is insolvent. That onus cannot be satisfied by poking holes in the defendant's evidence or by criticising the defendant for failing to adduce further evidence in circumstances where the defendant no longer bears the onus, and has not yet been given an opportunity to adduce further responsive evidence. This is an impermissible attempt by Dahlsens to reverse the onus of proof.
7. I accept the defendant's submission that it would be unfair to allow Dahlsens to amend the originating process to raise actual insolvency at this late stage in the proceeding. An application based on actual insolvency is a fundamentally different application to one which relies upon a presumption of insolvency. Addressing this new ground for winding up gives rise to unfairness and prejudice to the defendant and would be contrary to the just, efficient and timely resolution of this proceeding. If the amendment were allowed, fairness would necessitate further adjournment of the proceeding to allow the defendant to adduce evidence which responds to Dahlsens' new grounds, and thereafter an opportunity would need to be given for Dahlsens to file reply evidence. Following this, a further hearing for submissions as to the significance of the new evidence would be required. In essence, the proceeding would be starting over.
8. This proceeding should not drag out any longer. Section 459R of the Corporations Act requires winding-up applications to be determined within six months, unless special circumstances justify a longer period, and two extensions of time have already been granted.[101] The policy and purpose of s 459R is to ensure that decisions on company's solvency are based upon contemporaneous information, and to minimise both the period in which an insolvent company may engage in transactions and also the time the 'commercial cloud' of insolvency may exist in relation to solvent companies.[102] It is not apparent to me that Dahlsens' late application to amend the originating process to raise actual insolvency would provide 'special circumstances' which would justify the further delay in the determination of this proceeding and the extension of the 'commercial cloud' over the defendant.
9. Fundamentally, Dahlsens has been unsuccessful in its application to wind up the defendant because it has not established the presumption of insolvency. Rather than accept this, Dahlsens is, at the last moment, seeking to amend its application to bring grounds of actual insolvency. Whilst I accept that it is open to Dahlsens to make such an application and raise evidence of actual insolvency in an application under s 459P,[103] it is not appropriate to allow an amendment at this late stage of the proceeding having regard to the prejudice and unfairness that would be occasioned to the defendant.
10. The manner in which this application has proceeded is regrettable. It is regrettable that the defendant did not raise the question of the stale demand until 1 July 2025, although I accept Mr Ioannidis' explanation for this. This issue would have been well-suited to determination as a preliminary issue, although this was not sought by either party. This would have avoided evidence and submissions being adduced on the question of whether or not the defendant had rebutted the presumption of insolvency until such time that it was clear that the presumption was enlivened. However, these matters further justify the Court adopting a course which avoids the further delay that would result if Dahlsens were given leave to amend its originating process.
11. Having regard to my conclusion that it is not appropriate to allow Dahlsens' application to amend the originating process, it is not necessary for me to address the defendant's arguments that the defendant's evidence as to solvency ought to be excluded as unfairly prejudicial or improperly obtained. This evidence is not relevant to the matters that need to be determined by the Court.

1. As I have found the presumption of insolvency has not arisen, and that it is not appropriate to grant Dahlsens leave to amend its originating process, the proceeding must be dismissed. It is therefore not necessary or appropriate for me to address whether the defendant's evidence successfully rebuts the presumption of insolvency.
2. The only outstanding issue is therefore the question of costs of this proceeding. I have not yet had the benefit of submissions on the question of costs, however I note that although the defendant has been successful, costs consequences may flow from its failure to raise the issue of the stale statutory demand until five months into the proceeding.
3. I direct counsel to confer as to the appropriate form of order arising from these reasons, including on the question of costs. In doing so the parties and their legal representatives should have regard to the Court's expectations set out in paragraphs 9.1 and 9.2 of the Notice to the Profession: Applications to Set Aside Statutory Demands. I direct that consent or competing minutes of order be provided to the Court by 4:00 pm on 9 December 2025. The matter will be listed for the hearing of any disagreement on the question of costs or the form of order arising from these reasons at 9:30 am on 10 December 2025.

[1] Order of Gitsham JR made on 14 May 2025.

[2] Order of Gitsham JR made on 28 May 2025.

[3] Order of Gitsham JR made on 2 July 2025, paragraph A of Other Matters ('2 July Order').

[5] Defendant's Supplementary Outline of Submissions On Service filed on 1 July 2025, [13] ('Defendant's Service Submissions'); Defendant's Second Supplementary Outline of Submissions (On Service) filed on 23 July 2025, [4]-[8] ('Defendant's Service Submissions 2').

[6] Re Bioaction Pty Ltd [2022] FCA 436 [41], [46]-[55] ('Bioaction'), referred to in Defendant's Service Submissions 2 (n 5) [2], n 1.

[7] [2024] NSWSC 942 ('New Wilkie').

[8] [2024] NSWSC 486 ('Stamford Bridge').

[9] [2022] FCA 1574 ('Sandys Swim').

[10] Post-Trial Submissions of the Defendant filed on 22 October 2025; Dahlsens' Post Trial Submissions filed on 23 October 2025 ('Dahlsens' Post-Trial Submissions').

[11] Corporations Act, s 9 definition of 'statutory period'.

[12] Gryst v Dromana Estate Ltd [2008] FCA 1148, [13].

[13] Affidavit of Con Ioannidis filed on 1 July 2025, [16] ('Ioannidis 4'); Email received by Con Ioannidis from David Graj, Exhibit CI-3 to Ioannidis 4, 38-48 ('Service Email').

[18] Ibid 46-48; Affidavit of Scott Enno sworn on 23 October 2024, [1].

[19] Ioannidis 4 (n 13) [16]; Service Email (n 13) 38-39.

[20] Affidavit of service of Kylie Anne Keppel filed on 19 February 2025, [2] ('Keppel').

[21] Acts Interpretation Act 1901 (Cth), s 29 ('Interpretation Act'); Evidence Act 2008 (Vic), s 160. The defendant did not adduce evidence to rebut these presumptions.

[22] Noting that 4 November 2024 was a public holiday in Victoria.

[23] Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2003] QSC 98, [8]-[9] ('Parklands Blue'); Woodgate v Garard Pty Ltd [2010] NSWSC 508, [44(iv)]-[44(vi)] ('Woodgate'); V & M Davidovic Pty Ltd v Professional Services Group t/a Rosier Partners Lawyers [2012] NSWSC 134, [4] ('V&M Davidovic'); Deputy Commissioner of Taxation v Melking Holdings Pty Ltd [2019] FCA 988, [60]-[62] ('Melking'); Re Kornucopia Pty Ltd (No 1) [2019] VSC 756, [50]-[51] ('Kornucopia'); Re Caason Investments Pty Ltd [2021] VSC 487, [29]-[33], [35] ('Caason').

[24] [1996] NSWSC 314; (1996) 41 NSWLR 542, 544 ('Howship'), citing Hope v Hope [1854] EngR 805; (1854) 4 De GM & G 328 at 341-345; [1854] EngR 805; 43 ER 534 at 539-540; R v Heron; Ex parte Mulder (1884) 10 VLR 314 at 315; Pino v Prosser [1967] VicRp 107; [1967] VR 835 at 838. This passage has been cited with approval in eg Parklands Blue (n 23) [8]; Woodgate (n 23) [41]-[44]. See also paragraph 42 of Woodgate, which lists 12 instances of Howship having been followed. This principle was most recently applied in this Court in Scamante v Lanzer [2024] VSC 664, [44]-[45].

[25] Emhill Pty Ltd v Bonsoc Pty Ltd [2004] VSC 322, [27]-[28] ('Emhill'); Woodgate (n 23) [44(vi)].

[26] Parklands Blue (n 23) [8]-[9]; Melking (n 23) [60]-[62]; Woodgate (n 23) [46].

[27] Parklands Blue (n 23); V&M Davidovic (n 23) [3]-[6]; Caason (n 23) [14]-[15], [39]; Sandys Swim (n 9) [39], [47], where 21 days commenced from email service effected pursuant to the Corporations Act (rather than informally), and postal service occurred later.

[28] New Wilkie (n 7) [8].

[29] Emhill (n 25) [28]-[29].

[30] Parklands Blue (n 23) [2]-[3],[12]; V&M Davidovic (n 23) [5]-[6].

[31] Woodgate (n 23) [4].

[32] New Wilkie (n 7) [3]-[4], [17].

[33] Caason (n 23) [14], [39].

[34] Kornucopia (n 23) [26]-[27], [85].

[35] Melking (n 23) [60]-[62].

[36] See eg Howship (n 24); Ketrim Pty Ltd v AS&L Pty Ltd [2004] NSWSC 1046; Newsnet Pty Ltd v Patching [2011] NSWSC 690; SGR Pastoral Pty Ltd v Christensen [2019] QSC 229; Bioaction (n 6) [39].

[37] Clack v Murray [2017] WASCA 88, [10].

[38] [2013] QSC 259.

[39] [2020] VSC 322.

[40] CED WISE (n 38) 2.

[42] EC Newstead (n 39) [2].

[44] Kornucopia (n 23).

[45] EC Newstead (n 39) [5].

[46] Parklands Blue (n 23); V&M Davidovic (n 23); Caason (n 23).

[47] See, for example, Kornucopia (n 23) [50]-[51].

[48] Corporations Amendment (Corporate Insolvency Reforms) Act 2020 (Cth).

[49] Bioaction (n 6).

[51] See, for example, Stamford Bridge (n 8); Sandys Swim (n 9).

[52] Bioaction (n 6) [95]; Sandys Swim (n 9) [41]; Stamford Bridge (n 8) [63].

[53] Bioaction (n 6) [55], regarding the Commonwealth provision which is in like terms.

[54] Explanatory Memorandum, Treasury Laws Amendment (Modernising Business Communication and Other Measures) Bill 2022, 15 [1.34], 17 [1.43].

[55] Prior to 20 October 2023, 'document' was also defined in s 9 of the Corporations Act in a manner that mirrored s 2B of the Interpretation Act (n 21)(see Bioaction (n 6) [50]). However, this definition was repealed by the Treasury Laws Amendment (2023 Law Improvement Package No. 1) Act 2023 (Cth) as it was unnecessary given the term is defined in the Interpretation Act: Explanatory Memorandum, Treasury Laws Amendment (2023 Law Improvement Package No. 1) Bill 2023 [1.24].

[56] See Bioaction (n 6) [48].

[57] Sandys Swim (n 9) [39].

[61] Woodgate (n 23).

[62] Ioannidis 4 (n 13) [16].

[63] Transcript of Proceeding, Re Ironsons Homes Pty Ltd (Supreme Court of Victoria, S ECI 2025 00823, Steffensen AsJ, 27 October 2025) 5 ('27 October Transcript').

[64] Howship (n 24) 544. See also footnote 24 above.

[66] See, for example, Parklands Blue (n 23); V&M Davidovic (n 23); Woodgate (n 23); Caason (n 23); Sandys Swim (n 9).

[67] Parklands Blue (n 23); V&M Davidovic (n 23). See also Caason (n 23), which was decided after EC Newstead (n 39).

[68] Melking (n 23) [29]-[30], [40]-[42].

[69] New Wilkie (n 7) [8].

[70] Dahlsens' Post-Trial Submissions (n 10) [16].

[71] Woodgate (n 23); Kornucopia (n 23); Melking (n 23).

[72] 2 July Order (n 3).

[73] Corporations Act, s 459B(4); Bibby Financial Services Australia Pty Ltd v Wolf Industries Australia Pty Ltd [2004] NSWSC 134, [25]; 640 The Esplanade Pty Ltd v Splash Bay Pty Ltd (No 2) [2017] FCA 89, [96].

[74] Ioannidis 4 (n 13) [16]-[18].

[75] Defendant's Service Submissions (n 5) [6]-[10].

[78] 2 July Order (n 3).

[79] Melking (n 23) [25], [30], cited in Defendant's Service Submissions 2 (n 5) [4]-[5].

[80] Kornucopia (n 23) [124]-[126], [137], cited in Defendant's Service Submissions 2 (n 5) [6]-[7].

[81] Defendant's Service Submissions 2 (n 5) [7].

[82] 27 October Transcript (n 63) 3.

[83] Dahlsens' Post-Trial Submissions (n 10) [19]-[23].

[84] 27 October Transcript (n 63) 23-24.

[87] Ibid 9-12; Affidavit of Steven David Papst filed on 23 April 2025, [4].

[88] 27 October Transcript (n 63) 13.

[91] Melking (n 23) [29] (emphasis in original).

[92] Keppel (n 20) 3.

[93] Melking (n 23) [29]-[30], [40]-[42].

[94] CED WISE (n 38) 4.

[95] Melking (n 23) [43]-[45].

[96] Kornucopia (n 23) [124]-[144].

[99] 27 October Transcript (n 63) 15-20, 22-23, 39-43.

[101] Orders of Steffensen AsJ made on 23 September 2025 and 28 November 2025.

[102] Farid Assaf, Assaf's Winding up in Insolvency (LexisNexis, 3rd ed, 2021) [10.93] n 427.

[103] Kornucopia (n 23) [137].