Plaintiff v Defendant

PRACTICE AND PROCEDURE - Non-compliance with timetabling orders - Refusal of plaintiff's application to rely on late evidence concerning timing of service of demand - Refusal of plaintiff's application to withdraw admissions made in s 459G affidavit regarding timing of service of demand.

1. By originating process dated 8 January 2026, Ascot Solicitors Pty Ltd ('Ascot Solicitors' or 'plaintiff') applies to set aside a statutory demand dated 12 December 2025 ('statutory demand' or 'demand') served on it by the defendant, David J Brown KC ('defendant'), for the sum of $39,826.14. Ascot Solicitors seeks to set aside the demand under s 459G of the Corporations Act 2001 (Cth) ('Act') for 'some other reason' under s 459J(1)(b) of the Act, on the basis that the underlying judgment debts are the subject of a pending appeal in this Court in circumstances where the company has offered to provide security and undertakings.
2. However, an important jurisdictional question arises. As a condition of the Court's jurisdiction, a company may make an application under s 459G of the Act to set aside a statutory demand within the 21-day statutory period.[1] It is the making of an application in accordance with s 459G that confers jurisdiction on the Court to determine the application.[2] In this case, the defendant contends: that Ascot Solicitors was served by email dated 12 December 2025; that the 21-day statutory period expired with the demand unsatisfied on 2 January 2026; and that Ascot Solicitors' application, filed on 8 January 2026 and served on 9 January 2026 is out of time and has no jurisdictional basis. By contrast, Ascot Solicitors argues the statutory demand was not served until 19 December 2025, with the result that its application to set the demand aside was made on the last day of the 21-day statutory period.

1. Ascot Solicitors' application to set aside the demand was supported by the affidavit of Mr Senad Dizdarevic, principal solicitor and director of the company, sworn 7 January 2026 ('first Dizdarevic affidavit'). At para 20 of his affidavit, Mr Dizdarevic deposes that '[o]n 12 December 2025, I received an email from Hoyle Da Silva Lawyers, attaching a Statutory Demand for Payment of Debt in Form 509H...' ('12 December email').
2. Following the filing of Ascot Solicitors' application, Gitsham JR made timetabling orders on 19 January 2026 ('January orders') setting the matter down for final hearing on 24 February 2026. According to para 3 of the January orders, by 4:00pm on 22 January 2026, the defendant was required to file and serve an affidavit of service of the statutory demand and any affidavit upon which he intended to rely in opposition to the application and inform the Court if he disputed that the Court had jurisdiction to determine the application (which occurred). Paragraph 4 of the January orders required that, by 4:00pm on 29 January 2026, Ascot Solicitors file and serve any affidavit on which it intended to rely in reply, together with an outline of submissions. It did not do so. As contemplated in para C of 'Other Matters' in the January orders, and the Notice to the Profession concerning Applications to Set Aside Statutory Demands dated 11 July 2025 ('Notice to the Profession'), the Court then made a self-executing order on 4 February 2026 such that if the plaintiff did not comply with the mandatory aspects of para 4 of the January orders by no later than 4:00pm on 9 February 2026, the proceeding would be dismissed with costs in favour of the defendant. Ascot Solicitors then filed its written submissions on 9 February 2026 but did not file any affidavit material.

Application by plaintiff to rely on supplementary evidence

1. On 23 February 2025 at 5:09pm, Ascot Solicitors sought to file a supplementary affidavit of Mr Dizdarevic sworn on even date. On the morning of the hearing on 24 February 2026 at 8:47am, the plaintiff firm also sought to file supplementary written submissions. At para 8 of his supplementary affidavit, Mr Dizdarevic made reference to the evidence given in para 20 of his first affidavit. He deposes he had intended to convey in that paragraph that the 12 December email transmitting the demand appeared to have been received by Mr Michael Feiler (an employee solicitor at Ascot Solicitors), that he was copied into the email, but that he did not personally have actual knowledge of the email. He states he did not open or access the 12 December email at that time and the existence of the email and the statutory demand were only brought to his attention when he had received an unread email reminder notification on 19 December 2025. He says it was at that time he had first personally accessed and reviewed the email and its attachment.
2. Ascot Solicitors did not make a formal application by summons for leave for the late filing of either the supplementary affidavit of Mr Dizdarevic or the supplementary submissions. At the hearing, Mr Dizdarevic appeared on the plaintiff's behalf and made an oral application for leave to rely on these documents out of time. After hearing argument on that aspect of the application, I declined to grant Ascot Solicitors leave to rely on the late material. My reasons for doing so are recorded in the transcript of the hearing. In summary, I refused leave for a number of reasons, including:

(a) Ascot Solicitors' supplementary affidavit evidence and submissions were due on 29 January 2026, almost one month before they were eventually filed;

(b) Ascot Solicitors' non-compliance with the January orders necessitated the Court making a self-executing order such that its supplementary evidence and submissions were required to be filed no later than 9 February 2026, otherwise the application would be dismissed;

(c) although Ascot Solicitors filed its submissions by 9 February 2026 and avoided the effect of the self-executing order, the submissions were nevertheless late by reference to the January orders. There is no explanation for the lateness of those submissions;

(d) both the Notice to the Profession and para B of 'Other Matters' in the January orders specifically state that evidence or submissions filed out of time would not be considered at the final hearing without a summons for leave supported by an affidavit explaining non-compliance. No such summons and supporting affidavit were filed;

(e) contrary to the submissions made by Mr Dizdarevic at the hearing, the evidence sought to be adduced in Mr Dizdarevic's supplementary affidavit about the 12 December email and the service of the statutory demand goes beyond a simple correction of an error in his first affidavit. Instead, it sets out an entirely different narrative about the circumstances surrounding the 12 December email. It is unclear why this initial account was not given in the first Dizdarevic affidavit; and

(f) in the circumstances, granting the plaintiff leave to rely on Mr Dizdarevic's supplementary affidavit and its supplementary submissions would not be consistent with the overarching purpose set out in s 7 of the Civil Procedure Act 2010 (Vic) ('CPA'), being the just, efficient, timely and cost-effective resolution of the real issues in dispute, which the Court is required to give effect to under s 8 of the CPA. It was also contrary to the terms and tenor of the Notice to the Profession.

Application by plaintiff to withdraw admission as to service

1. After denying Ascot Solicitors leave to rely on the supplementary affidavit and supplementary submissions, Mr Dizdarevic made a further oral application for leave to withdraw the evidence given in para 20 of the first Dizdarevic affidavit because it was in error. To be clear, Mr Dizdarevic now seeks to withdraw his prior admission that he received the statutory demand on 12 December 2025 as director of the plaintiff.
2. In Ma v Qin (No 2),[3] Gobbo AsJ considered an application to withdraw an admission made in a pleading stating: [4]

The law in relation to applications for leave to withdraw an admission is well settled. Whether an amendment should be permitted is a matter of discretion. A party will not be permitted to withdraw an admission in a pleading 'without good cause'. Whilst the general rule is that all amendments should be permitted (including an amendment to a defence) unless the amendment will cause prejudice to the other party which cannot be overcome in some way, it is neither possible nor desirable to delimit the factors that the Court may take into account in exercising the discretion.

1. Her Honour relied upon the decision of Nichols J in Gregorich v Khouri & Ors[5] in setting out the considerations relevant to the exercise of the Court's discretion in this regard, which I respectfully adopt here:[6]

An amendment will not be permitted where it would cause irremediable prejudice to the other party. On an application to amend the applicant bears the burden of persuasion that the amendment will not cause such prejudice, while the party opposing the amendment bears an evidential onus of adducing evidence on the question of prejudice. The question is whether the possibility of prejudice or injustice to the opposing party has been excluded. If it has not, the application must be refused. It must also be refused if the Court concludes that it cannot decide whether it is just to allow the amendment.

The loss of an opportunity to take a step in the proceeding in response to a denial may constitute relevant prejudice. An order for indemnity costs may not always undo the prejudice a party suffers by a late amendment. Case management considerations may inform the justice of the grant or refusal of an application to amend.

A court will usually require an explanation for the change in position. In McKenzie v Commonwealth [[2001] VSC 361] and in Jeanes v Commonwealth [[2005] VSC 488] Gillard J said that it is not the law that a defendant is not permitted to withdraw an admission unless it was shown to have been made inadvertently or through error, and that the absence of a reasonable or adequate explanation will not determine the outcome of an application in the face of compelling reasons of justice...

Nevertheless, an explanation is ordinarily called for in recognition of the fact that the making of an admission is regarded as a serious step for a party to take - its effect being to remove the admitted fact from the arena of controversy between the parties. Thus it has been said that a party will not be permitted to withdraw an admission in a pleading 'without good cause'.

That is a more particular emanation of the principle that generally speaking, where a discretion is sought to be exercised in favour of one party and to the disadvantage of the other, an explanation will be required. An explanation is required in order to permit the court to see that the application is brought in good faith and to weigh the circumstances against the effects of an amendment and the objectives of the relevant rule. In Aon Risk Services [(2009) 239 CLR 175] French CJ said that one consideration in the exercise of an interlocutory discretion is the potential loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification.

It has been often said in the context of applications to withdraw admissions, that the explanation proffered should be based on evidence of a 'solid and substantial character'. However, what is adequate will depend upon the circumstances of the particular case.

Finally, it is now understood (at least since the High Court's decision in Aon) that parties must be given a fair trial and a sufficient opportunity to identify the issues they seek to agitate, but according justice in an application to amend is not to be equated with a requirement to afford a party an unlimited opportunity to amend its case.

1. Associate Justice Gobbo then referenced the CPA, including the overarching purpose in s 7, and s 47(1),[7] which states:

(1) Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made -

(a) in the interests of the administration of justice; or

(b) in the public interest.

1. Her Honour also observed that '[a]ll persons to whom the overarching obligations apply must also use reasonable endeavours to resolve issues in dispute by agreement and narrow the issues in dispute, act promptly and minimise delay'.[8]
2. In my view, there is no reason why the considerations referred to above would not apply in the case of an application to withdraw an admission contained in an affidavit.
3. Taking the considerations expressed by the relevant authorities into account, the application for leave to withdraw the admission in para 20 of the first Dizdarevic affidavit should be refused.
4. The reason for the application to withdraw the admission is not explained on the basis of solid and substantial evidence. The effect of the proposed withdrawal would be to remove unequivocal evidence given by the plaintiff concerning service of the demand. There is no explanation as to how the admission was made inadvertently or through error. As an experienced legal practitioner, Mr Dizdarevic can be taken to have exercised care and caution in preparing his affidavit and to have used deliberate and precise language. The need for explanation in relation to the apparent inadvertence or error is therefore all the more important.
5. Further, I consider the defendant would be prejudiced by the retracting of the admission. I accept the defendant has prepared his case on the basis of the available material, including the admission. For there to be so fundamental a change in Ascot Solicitors' position on service of the statutory demand at this late stage, it would be necessary for the matter to be adjourned and for the defendant to consider whether to file supplementary material. I accept that he would be put to a forensic disadvantage as a result of an adjournment. That is so particularly if he wishes to avail himself of the presumption of insolvency arising under s 459C(2)(a) of the Act, which states:

(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; ...

1. In the event the defendant is correct and the plaintiff's application is incompetent, then the plaintiff would have failed to comply with the statutory demand on 2 January 2026 and any application to wind up the company in reliance on this non-compliance would need to be commenced by 2 April 2026. In other words, there is a risk that, in the event this matter was adjourned and not determined as promptly as would otherwise be the case, the defendant may lose the availability of the statutory presumption of insolvency.
2. At a minimum, the possibility of prejudice or injustice to the defendant cannot be excluded.
3. Finally, I do not consider that the retracting of the admission would be consistent with the overarching purpose contained in s 7 of the CPA or the interests of the administration of justice. Whilst Mr Dizdarevic submitted that he only became aware of the error when he re-read his first affidavit immediately prior to the hearing, he ought to have reviewed the contents of the affidavit well prior to the deadline for the filing of supplementary affidavit material on 29 January 2026; almost a month ago. The approach of Ascot Solicitors and Mr Dizdarevic to the preparation and review of evidence appears inconsistent with the overarching obligation in s 25 of the CPA to act promptly and minimise delay.

Application by plaintiff to set aside statutory demand

1. In support of its application, Ascot Solicitors relies on the following material:[9]

(a) the first Dizdarevic affidavit sworn 7 January 2026;

(b) the affidavit of Mr Feiler, solicitor, sworn 20 January 2026;

(c) an Australian Securities and Investments Commission ('ASIC') company extract of Ascot Solicitors filed 8 January 2026; and

(d) written submissions dated 9 February 2026, of which two versions were filed in quick succession. The latter, 'corrected', version has been considered.

1. In opposing the application, the defendant relies on:

(a) two affidavits of Ms Melissa Sayers, solicitor, affirmed 22 January 2026; and

(b) written submissions filed 5 February 2026.

1. Before considering the critical question of how and when the demand was served in order to ascertain whether the application to set it aside has been made within time, I will set out the relevant provisions and principles.

(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.

1. Where an application under s 459G of the Act has not been filed and served within the statutory period, the Court has no jurisdiction to consider the application and it will be dismissed as incompetent.[10] The time period is 'strict and immutable'.[11] Further, the statutory period cannot be extended,[12] or service validated, after its expiration.[13]
2. The Court has prima facie jurisdiction upon the filing of a s 459G application, unless that is displaced by evidence confirming the filing and service of the application did not occur within the requisite statutory period.[14] It is clear that Ascot Solicitors bears the onus of satisfying the Court it has made its application in accordance with s 459G(3) of the Act.[15]
3. Pursuant to s 109X(1)(a) of the Act, a document, including a statutory demand, 'may be served on a company by leaving it at, or posting it to, the company's registered office'. However, s 109X is not a complete code for the different modes of service upon a company. As Mandie J explained in Emhill Pty Ltd v Bonsoc Pty Ltd,[16] s 109X is:

... facultative and not exclusive or mandatory and the section should not be construed so as to exclude any means of service which is proved to have brought the document to the actual attention of a company.[17]

Technology neutral sending of documents under div 2 of pt 1.2AA and s 105A of Act

1. Division 2 of Part 1.2AA of the Act sets out a relatively new regime for the technology neutral sending of documents. The legislative history to pt 1.2AA, together with the legislative predecessor provision s 600G and associated ss 105A and 105B found in pt 1.2 of the Act, was comprehensively laid out by Steffensen AsJ in Re Ironsons Homes Pty Ltd ('Re Ironsons Homes').[18]
2. Sections 110C(1) and 110(C)(3) of the Act specify the types of documents in respect of which the regime for the technology neutral sending of documents applies. Importantly, the scheme covers documents that are required or permitted to be sent by the sender to the recipient under chs 5 to 5D of the Act, which include statutory demands issued under s 459E. Section 110C(6) states that div 2 of pt 1.2AA 'applies to a requirement or permission to send the document, whether the expression send, give, serve or dispatch, or any other expression, is used.'[19] Section 110C(7) clarifies, for the avoidance of doubt, that the provision applies regardless of the other means of service of documents set out in s 109X.
3. Section 110D of the Act relevantly provides:

...

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

(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.

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

...

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

...

(b) where the recipient is not covered by subsection (7)[20] - 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 terms 'electronic communication' and 'nominated electronic address' find definition in s 9 of the Act. They are relevantly defined to mean the following:

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

...

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) This section applies in relation to an electronic communication unless otherwise agreed between the originator and the addressee of the electronic communication.

(2) An electronic communication is sent:

(a) when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; or

(b) if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator--when the electronic communication is received by the addressee.

(4) An electronic communication is received when the electronic communication becomes capable of being retrieved by the addressee at the addressee's nominated electronic address.

(5) It is to be assumed that an electronic communication is capable of being retrieved by the addressee when it reaches the addressee's nominated electronic address.

(3) An electronic communication is taken to have been received:

...

(b) if the addressee has a registered office and paragraph (a) does not apply--at the registered office of the addressee...

1. As Steffenson AsJ explained in Re Ironsons Homes:[22]

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.[23] 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.[24]

1. Additionally, it is important to mention a particular evidentiary rule concerning service which is relied upon by the defendant in this case. Where a party employs a method of service on a company other than those methods contemplated by s 109X of the Act, the question of whether it is good service depends on the serving party proving to the Court's satisfaction that the document actually came to the attention of a responsible officer of the company who was expressly or implicitly authorised by the company to deal with the document.[25] This is known as 'the effective informal service rule'. In the case of service by email, what must be shown is that the electronic copy was received, in complete and legible form, at the address for service and was capable of being opened and read (even if not read until later).[26] 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.[27] Service by email or facsimile are modes of service that fall within the scope of this rule.[28] If actual notice of the demand is established, the 21-day statutory period runs from the date the demand came to the relevant officer's attention.[29]
2. In Kookaburra Educational Resources Pty Ltd v MacGear Ltd Partnership trading as MacGear Australia, Re Kookaburra Educational Resources Pty Ltd,[30] Halley J held that email communications between the creditor's solicitor and the debtor's accountant established that a statutory demand was expressly brought to the attention of the debtor company by reason of the accountant first telephoning and then emailing the director with the demand.[31] His Honour considered the director, as an officer of the company, 'was at least implicitly authorised by the company to deal directly and responsively with the [d]emand'.[32] This was held to constitute effective informal service of the demand, notwithstanding any failure of the creditor to serve the demand at the registered office of the company.[33]
3. Similarly, in Re Caason Investments Pty Ltd ('Re Caason'),[34] Gardiner AsJ recognised there was informal effective service of a statutory demand by email from the plaintiff's solicitor to the defendant's in-house lawyer who had been involved in prior related proceedings concerning the parties and was closely engaged in the matter prior to the service of the demand.[35]
4. In Chen v Kornucopia Pty Ltd (No 1),[36] Sifris J considered that in the event he was wrong in holding there had been service of the demand in question by post upon a debtor company, there had nevertheless been effective informal service of the demand by email to the directors of the company. In that case, the relevant email was sent to the directors of the company and the email noted the documents had been posted to the debtor company but returned by Australia Post. The writer of the email 'strongly recommended' the directors read the demand and accompanying affidavit which were attached to the email.

1. By way of background, Mr Dizdarevic gives evidence that on 31 May 2024, the defendant commenced proceeding MAG-CI-240117558 in the Magistrates' Court of Victoria at Melbourne ('Magistrates' Court proceeding'). On 15 May 2025, following a contested hearing, Magistrate Greenway made orders and delivered reasons, entering judgement for the defendant in the principal sum of $22,000. He also directed the parties to file written submissions on the question of interest and costs and ordered a 30-day stay of enforcement. On 9 July 2025, after receiving written submissions, the learned Magistrate made further orders awarding interest and fixing costs. As a result of the orders made on 15 May 2025 and 9 July 2025, the judgments arising from the Magistrates' Court proceeding total $39,826.14. The debt the subject of the demand consists entirely of the judgment debts and fixed costs ordered in the Magistrates' Court proceeding.
2. On 8 August 2025, Mr Dizdarevic caused Ascot Solicitors to file a notice of appeal in this Court in proceeding S ECI 2025 04578 ('appeal proceeding') in respect of the orders and judgments made in the Magistrates' Court proceeding. On 23 September 2025, the Court made orders in the appeal proceeding, among other things, listing the appeal for hearing on 2 October 2026.
3. Mr Dizdarevic deposes that on 22 September 2025, he caused Mr Feiler to send an email to the defendant's solicitors attaching proposed consent orders to stay the enforcement of the Magistrates' Court proceeding judgments, pending the determination of the appeal proceeding. The proposed orders included an undertaking apparently designed to preserve the defendant's position while the appeal was prosecuted. The email address used by Mr Feiler to send the email was: michael.f@ascotsolicitors.com.au ('Feiler email address'). On 23 September 2025, Mr Feiler sent a further email to the defendant's lawyers seeking to discuss the proposed consent orders. Both emails sent by Mr Feiler were copied to Mr Dizdarevic at the email address: senad@ascotsolcitors.com.au ('Dizdarevic email address'). The defendant's lawyers responded by email on 23 September 2025 refusing to agree to a stay. The email was addressed to Mr Feiler but also copied to Mr Dizdarevic.
4. Ms Sayers gives evidence that on 12 December 2025 at 3:47pm, she served the statutory demand on Ascot Solicitors by the 12 December email. She deposes that service was effected by sending the email from her email address to the Feiler email address, being an email address she says was used by the plaintiff 'for correspondence in [the] matter.' The salient features of the 12 December email, its accompanying letter from the defendant's solicitors, and the statutory demand itself are set out below.
5. The 12 December email was not only sent to the Feiler email address but also copied to Mr Dizdarevic at the Dizdarevic email address. The email, which attaches an accompanying letter, reads:

Good afternoon,

Please find attached correspondence of even date.

1. The accompanying letter is also dated 12 December 2025. An extract of the letter is set out below.

Ascot Solicitor Pty Ltd

At & Co Accountants

Level 5, 1070 Mt Alexander Road

Essendon VIC

Sent via post and email to: michael.f@ascotsolicitors.com.au

Dear Sirs,

BROWN v ASCOT SOLICITORS PTY LTD (ACN 152 472 305) MAG-CI-240117558

We refer to the above matter.

Please find enclosed by way of service a Creditor Statutory Demand for Payment of Debt.

Yours faithfully

HOYLE DA SILVA

1. Notwithstanding the letter makes reference to a physical address for Ascot Solicitors and suggests it has been sent by post, the defendant has not adduced any evidence of having served the demand by post and only relies on service by the 12 December email.
2. The statutory demand itself is addressed to: 'ASCOT SOLICITORS PTY LTD (ACN 152 472 305 c/- AT & CO ACCOUNTANTS, Level 5, 1070 Mt Alexander Road, Essendon VIC 3040', which, according to the ASIC extract filed by Ascot Solicitors, is the address of the firm's registered office. However, the demand makes no reference to any email address for Ascot Solicitors.
3. At para 20 of his first affidavit, Mr Dizdarevic relevantly states:

On 12 December 2025, I received an email from [the defendant's solicitors], attaching a Statutory Demand for payment of Debt in form 509H.

1. As already stated, I have not granted Mr Dizdarevic leave to retract that admission.
2. On 19 December 2025, Ascot Solicitors sent a letter to the defendant's solicitors signed by Mr Dizdarevic and Mr Feiler and referring to the 12 December email, enclosing the statutory demand ('19 December letter'). In the letter, Ascot Solicitors proposed consent orders:

(a) staying the enforcement of the judgments obtained in the Magistrates' Court proceeding until the determination of the appeal proceeding;

(b) the granting of personal undertakings by Mr Dizdarevic to pay the full judgment sum in the event the appeal is dismissed or otherwise fails; and

(c) the provision of a draft affidavit confirming Mr Dizdarevic's ownership of real property.

1. The letter suggested that these arrangements would provide adequate protection for the defendant while the appeal proceeding was on foot. The letter sought confirmation of the defendant's position by 22 December 2025 so that Ascot Solicitors could inform the Court whether a contested stay application was required and whether 'any Corporations Act application will be required'.
2. It does not appear that the defendant's solicitors responded to the 19 December letter. In his first affidavit, Mr Dizdarevic deposes that he believes the plaintiff's offices were closed from 20 December 2025 to 5 January 2026 (inclusive) and, during that period, his staff were on annual leave. He says Ascot Solicitors' offices reopened on 5 January 2026 and, from that date, he 'instructed Ascot to finalise the present application to set aside the Statutory Demand...'.

Service under div 2 of pt 1.2AA and s 105A of Act

1. I turn now to consider whether the statutory demand was served by electronic communication within the meaning of div 2 of pt 1.2AA and s 105A of the Act. The defendant invokes these provisions in seeking to establish there has been service of the statutory demand by electronic communication to the email addresses for both Mr Feiler and Mr Dizdarevic.
2. Where both ss 110D(2) and 110D(6) are satisfied, documents falling within div 2 of pt 1.2AA may be served by sending such documents in electronic form by means of an electronic communication. As I have previously explained, pursuant to s 110C(3), a statutory demand is a document to which div 2 of pt 1.2AA applies. Further, the 12 December email is clearly an 'electronic communication' in accordance with the definition in s 9 of the Act. According to s 110D(1)(c), the statutory demand was permitted to be sent to the plaintiff in electronic form by means of electronic communication, such as by email, so long as s 100D(2) was satisfied. In my view, s 110D(2) is so satisfied because at the time the demand was sent, it was reasonable to expect it would be readily accessible so as to be useable for subsequent reference. The demand was sent to the Feiler email address, an address from which Mr Feiler, on behalf of the plaintiff, had recently and reliably communicated with the defendant's lawyers in September 2025 in connection with the appeal proceeding. There is no basis to believe the statutory demand could not be readily accessible from Mr Feiler's email address so as to be usable for subsequent reference, in the same manner that the defendant's solicitors' email correspondence of 23 September 2025 would also have been readily accessible and usable for subsequent reference. At the same time, the 12 December email attaching the demand was copied to Mr Dizdarevic at the Dizdarevic email address, which was the same email address used to copy him into Mr Feiler's emails of 22 and 23 September 2025, following Mr Dizdarevic's instructions to Mr Feiler in relation to the appeal proceeding. The defendant's lawyers also used this email address when copying Mr Dizdarevic into their responsive email of 23 September 2025. It was clearly a functional email address.
3. At the hearing, Mr Dizdarevic contended that s 110D(2) should be read in such a way that there must be a reasonable expectation the statutory demand would in fact be accessed at the time it was sent. He said that given the 12 December email attaching the demand was sent on 12 December 2025 at 3:47pm, which was late on a Friday in a busy period leading up to the Christmas and New Year break, there could be no reasonable expectation the demand would be accessed at that time. I do not accept the provision operates in this way. Section 110D(2) is satisfied if, at the time the document was sent, it was reasonable to expect the document would be readily accessible so as to be useable for subsequent reference. The language used in the provision does not denote any requirement that it be reasonable to expect the document will actually be accessed by the recipient at the very time it is received. Section 110D(2) contains an objective test which does not call for any subjective knowledge about the activities of the recipient of the document.
4. It is then necessary for the defendant to satisfy s 110D(6) of the Act, which requires the sending of the statutory demand to a 'nominated electronic address' for the plaintiff. The plaintiff contends it did not nominate either the Feiler email address or the Dizdarevic email address to receive the statutory demand and that correspondence concerning the Magistrates' Court proceeding and the appeal proceeding are quite separate from correspondence about the statutory demand. I reject these submissions. The two proceedings and the demand are clearly related as they all concern the same debt. That much is evident from the 19 December letter sent by the plaintiff to the defendant's lawyers, which deals with both proceedings and the statutory demand. Further, both the Feiler email address and the Dizdarevic email address were used by the plaintiff in its email communications with the defendant's lawyers concerning the appeal proceeding in September 2025, and the accompanying email to the 19 December letter which was sent seven days after the 12 December email enclosing the statutory demand. For the purposes of the definition of 'nominated electronic address' in s 9(a) of the Act, those email addresses are therefore the most recent electronic addresses nominated by the plaintiff to Ms Sayers of the defendant's lawyers as the electronic addresses for receiving electronic communications.
5. However, even if that conclusion is wrong, having regard to the history of correspondence between the parties in September 2025 and the inter-relationship between the Magistrates' Court proceeding, the appeal proceeding and the statutory demand (all of which concern the same underlying debt), the email addresses of each of Mr Feiler and Mr Dizdarevic are plainly electronic addresses that Ms Sayers believed on reasonable grounds to be current electronic addresses of the plaintiff for receiving electronic communications. As Hill J observed in DOF Subsea Australia Pty Ltd v Rees [No 2][37] when discussing the operation of s 110D(6)(b) of the Act and the concept of a 'nominated electronic address':[38]

... where a recipient has used an electronic address to substantively respond to a sender in relation to the matter in dispute, or the electronic address is referred to as the electronic address of the recipient in any contractual or court documents that relate to the dispute, there will be reasonable grounds for a sender to believe that the email is a current electronic address for the receipt of documents by that recipient in relation to that dispute under the Act ...

1. The fact that Mr Feiler was the primary recipient of the 12 December email whereas Mr Dizdarevic was only copied into the email is not a material distinction in this case, despite the plaintiff's suggestion to the contrary. Both email addresses were well known to Ms Sayers and clearly current.
2. Given each of ss 110D(2) and 110D(6) of the Act are satisfied by the defendant, service of the statutory demand occurred on 12 December 2025 in accordance with s 110D(1)(c) of the Act when it was sent by email to Mr Feiler, copying in Mr Dizdarevic. Further, in accordance with s 105A(4) of the Act, as the statutory demand was sent by email it was taken to have been received when it reached the email addresses of Mr Feiler and Mr Dizdarevic as 'nominated email addresses[s]' and were capable of being retrieved by those persons. Pursuant to s 105B(3)(b), the demand was also deemed to be received at the plaintiff's registered office.
3. At the hearing, Mr Dizdarevic argued the Court should proceed on the basis that the statutory demand was first served on 19 December 2025, being the time the 19 December letter was sent by Mr Dizdarevic and Mr Feiler in response to the statutory demand. He suggested it may be inferred that the 12 December email and attached statutory demand only came to his attention (as the director of the plaintiff), and Mr Feiler's attention, on 19 December 2025. However, there simply is no basis for such an inference on the available evidence (which excludes Mr Dizdarevic's late affidavit the plaintiff was refused leave to rely on). The 19 December letter makes reference to the 12 December email enclosing the statutory demand and suggests that the defendant should withdraw the demand on the basis of the proposal contained in the letter. However, the letter makes no reference to a date of service of the demand or any complaint about the statutory demand not coming to the attention of the plaintiff until 19 December 2025.
4. Further, as the authorities make clear, proof of effective service by electronic communication under div 2 of pt 1.2AA and s 105A of the Act does not require proof that the document was actually accessed or reviewed by the addressee, or even came to the attention of the addressee or anyone else.[39] What matters is that the addressee could have accessed the document had they sought to do so.
5. For completeness, I note that s 161 of the Evidence Act 2008 (Vic) creates a rebuttable presumption that emails have been sent and received at the time recorded in the email. There is no available evidence to rebut this presumption and the plaintiff has been denied leave to rely on any such evidence.

1. Even if I am wrong about the application of div 2 of pt 1.2AA and s 105A of the Act, the 12 December email constituted effective informal service of the demand. I hold that view because:

(a) the 12 December email was sent to Mr Feiler, the solicitor who had corresponded with the defendant's solicitors in relation to a proposed stay of enforcement of the Magistrates' Court proceeding judgments, pending the appeal in September 2025. Like in Re Caason, Mr Feiler was a lawyer who had been involved in prior related proceedings concerning the parties and was closely engaged in the matter prior to the service of the demand. It is reasonable to infer that Mr Feiler would have brought the 12 December email and its accompanying attachments to the attention of Mr Dizdarevic, the principal lawyer and sole director of the plaintiff law firm;

(b) I accept the submission of the defendant's counsel that having regard to the principle in Jones v Dunkel,[40] there has been an unexplained failure by the plaintiff to lead evidence from Mr Feiler, as principal addressee of the 12 December email, about the email and attached statutory demand, including when he opened it, and when he brought it to the attention of, and discussed it with, Mr Dizdarevic. I am prepared to infer that the uncalled evidence of Mr Feiler would not have assisted the plaintiff on the question of service of the demand;

(c) even if Mr Feiler, as an employee solicitor, was not the appropriate person to whom notice of the demand should have been given, the 12 December email was also copied to Mr Dizdarevic who gave initial unequivocal evidence that he received it on 12 December 2025 (despite later seeking to retract that admission and to adduce new evidence putting forward an alternative account of events). The demand therefore came to the actual attention of the plaintiff's sole director on the date the 12 December email was sent and received;

(d) the evidence suggests the 12 December email was received, in complete and legible form, at the Feiler email address and the Dizdarevic email address and was capable of being opened and read (even if not read until later);[41]

(e) the 12 December email prompted the plaintiff to send the 19 December letter to the defendant's solicitors which expressly refers to the 12 December email and the attached statutory demand. The letter is signed by both Mr Dizdarevic and Mr Feiler. Nowhere in the 19 December letter is there any suggestion that service was not properly effected, or even that there had been any delay by Mr Dizdarevic, as the responsible officer of the plaintiff, in accessing the demand;

(f) in the absence of the Court's leave to rely on Mr Dizdarevic's supplementary affidavit, there is no positive evidence before the Court that the plaintiff received the 12 December email any later than 12 December 2025. While Mr Dizdarevic sought to give evidence to that effect, I have disallowed that evidence on the basis that no proper application was made on notice for leave to adduce it and because it is almost a month late;

(g) whilst the 12 December email also referred to the statutory demand being served by post, nothing turns on this. The email did not assert that service had already occurred by post and there is no evidence that service had occurred by conventional means any earlier than the 12 December email, or at all; and

(h) although the 12 December email does not refer to a statutory demand or otherwise denote any urgency, I consider that a prudent legal practitioner would have regard to the attachments to the email. There is no evidence before the Court to suggest the email was ignored at the time it was received because it did not, on its face, refer to a statutory demand.

1. At the hearing, the plaintiff essentially submitted that the new statutory regime found in pt 1.2AA of the Act, and associated ss 105A and 105B, overrides or qualifies the effective informal service rule. I disagree. The relevant statutory provisions set out a procedure for the technology neutral sending of documents, including statutory demands, but do not override other methods of service. For example, s 110D(1) is prefaced with the words 'the document may be sent to the recipient', which is permissive and not mandatory. Further, s 110D(4) specifically provides that s 110D(1) does not limit the ways in which a person may send the document. I consider that the regime in div 2 of pt 1.2AA and s 105A of the Act, and the effective informal service rule, are alternative methods of establishing service of a statutory demand. I note that in Re Ironsons Homes, Steffensen AsJ proceeded on the basis that both avenues for establishing service were available, although her Honour did not ultimately investigate whether service had been achieved pursuant to pt 1.2AA of the Act as the point was raised late and without sufficient notice, and because she had already found that informal effective service by email had occurred.[42]
2. It follows there was effective informal service of the 12 December email and the demand on that date.

1. Given that service of the statutory demand occurred on 12 December 2025, the 21-day statutory period within which to make an application under s 459G of the Act expired on 2 January 2026. The plaintiff served its application on 9 January 2026, outside the 21-day period. The application is therefore incompetent and the Court does not have jurisdiction to hear it. Accordingly, there is no basis for considering the argument sought to be advanced under s 459J(1)(b) of the Act. The plaintiff's application must be dismissed.

1. Following the delivery of these reasons, I heard the parties on the question of costs and made a ruling to the following effect.
2. The defendant sought his costs of the application on an indemnity basis from the plaintiff and Mr Dizdarevic as a non-party, placing reliance on Re Lifestyle Residences Hobsons Bay Pty Ltd (recs & mgrs apptd) ('Re Lifestyle Residences'),[43] where I set out the following principles:[44]

Section 24 of the Supreme Court Act 1986 (Vic) relevantly provides that: 'the costs of and incidental to all matters in the Court ... is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid'. It is clear that the Court has a wide discretion in relation to costs.[45] However, as a general rule, in the absence of good reason to the contrary, a successful litigant should recover their costs.[46] Where a company's application to set aside a statutory demand is unsuccessful, the Court will usually require the company to pay the creditor's costs pursuant to the general principle that costs should follow the event.[47]

An award of costs is usually on a standard basis unless there are special or unusual features warranting an order for costs on an indemnity basis.[48] Such circumstances relevantly include where:

(a) proceedings are commenced or continued in disregard of known facts or clearly established law;[49]

(b) there is unreasonable conduct causing unnecessary costs to be incurred;[50]

(c) a party, properly advised, knew or should have known that it had no chance of success and has persisted with its claim[51] (in other words, the proceeding was brought on the basis that the case advanced was hopeless)...

In Carinda Homes Pty Ltd v Highlands Austral Pty Ltd [('Carinda Homes')],[52] a company persisted with its application to set aside a statutory demand despite it being commenced three days outside the 21-day time limit set by s 459G of the Act. The plaintiff company did not file any evidence on the question of whether the application was filed out of time. Justice Lindgren noted that the High Court's decision in David Grant[53] had made clear the strict and immutable nature of the time period contained in s 459G. On that basis, his Honour held that the proceeding was doomed to fail and it was unreasonable for the company to have pursued the application. Indemnity costs were ordered in favour of the creditor.

1. Applying those principles, in Re Lifestyle Residences I awarded costs in favour of the defendant on an indemnity basis from the time the defendant filed its responsive evidence. That evidence put the question of service of the statutory demand beyond doubt and gave rise to the conclusion the plaintiff's application was doomed to fail.[54] The defendant's costs were required to be paid by the plaintiff's sole director and shareholder, as a non-party.[55]
2. The circumstances of this case are similar to those in Carinda Homes and Re Lifestyle Residences. At the time the plaintiff commenced its application on 9 January 2026, it ought to have been apparent that the application was filed outside the mandatory 21-day period and could not succeed. There was an admission in the first Dizdarevic affidavit that the statutory demand had been served on 12 December 2025, with the result that the application was clearly out of time. Yet, the plaintiff persisted with its application. Moreover, the plaintiff's non-compliance with previous Court orders, its late filing of material on the eve and morning of the hearing, and its unsuccessful oral applications for leave to rely on that material and to then withdraw the admission of service (made without notice or a proper evidentiary basis) constitutes unreasonable conduct that has caused unnecessary costs to be expended.
3. I accept the defendant's submission that the circumstances of the case are such that the plaintiff should pay the defendant's costs of the proceeding on an indemnity basis, with such costs to be taxed in default of agreement. I will also reserve liberty to apply to the defendant to seek a non-party costs order on an indemnity basis against Mr Dizdarevic as the plaintiff's principal solicitor and sole director.

[1] See Corporations Act 2001 (Cth) ss 9 (definition of 'statutory period'), 459G(2).

[2] David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 ('David Grant').

[3] [2024] VSC 444 ('Ma').

[5] [2020] VSC 5.

[6] Ibid [7]-[13] (citations omitted).

[8] Ibid [27], referring to ss 23 and 25 of the CPA, respectively.

[9] Excluding the late material for which leave to rely upon was refused.

[10] David Grant. See also Carinda Homes Pty Ltd v Highlands Pty Ltd [2003] FCA 275 ('Carinda Homes'); Renegade Rigging Pty Ltd v Hanlon Nominees Pty Ltd [2010] VSC 385, [2] (Ferguson J); Autumn Solar Installations Pty Ltd v Solar Magic Australia Pty Ltd [2010] NSWSC 463, [4] (Barret J).

[11] Jin Xin Investment & Trade (Australia) Pty Ltd v ISC Property Pty Ltd [2006] NSWSC 7; (2006) 196 FLR 350, 352 (Barrett J) ('Jin Xin Investment'). See also David Grant , 276-7 (Gummow J for the Court).

[13] Rochester Communications Group Pty Ltd v Lader [1997] FCA 189; (1997) 23 ACSR 380; Re Marlan Financial Services Pty Ltd [1999] VSC 435; (1999) 33 ACSR 259, 266 (Byrne J); Austar Finance Group Pty Ltd v Campbell [2007] NSWSC 1493; (2007) 215 FLR 464, 478 [71] (Austin J) ('Austar Finance').

[14] Re Edifice Australia Pty Ltd [2017] NSWSC 1620, [12] (Black J).

[16] [2004] VSC 322; (2004) 185 FLR 389 ('Emhill').

[18] [2025] VSC 763, [40]-[51] (Steffensen AsJ) ('Re Ironsons Homes').

[20] Section 110D(7) deals with the sending of documents to members of companies, registered schemes, managed investment schemes and the like and does not appear to have application here.

[23] Re Bioaction Pty Ltd [2022] FCA 436; (2022) 402 ALR 542, 562-563 (Cheeseman J) ('Re Bioaction'); Sandys Swim Pty Ltd v Morgan [2022] FCA 1574, [41] (SC Derrington J); Re Stamford Bridge SW6 Pty Ltd [2024] NSWSC 486, [63] (Williams J).

[24] Re Bioaction 553, regarding the Commonwealth provision which is in like terms.

[25] Woodgate v Garard Pty Ltd [2010] NSWSC 508; (2010) 78 ACSR 468, 475-478 (Palmer J) ('Woodgate'). The principles in Woodgate concerning effective informal service were cited with approval by Sifris J in Chen v Kornucopia Pty Ltd (No 1) [2019] VSC 756; (2019) 59 VR 305, 319 ('Kornucopia (No 1)'). See also Biotech International Ltd v Peptech Ltd [2000] WASC 120; (2000) 34 ACSR 443, 452 (Owen J); Emhill, 312 [27] (Mandie J); Kookaburra Educational Resources Pty Ltd v MacGear Ltd Partnership (t/as MacGear Australia) [2021] FCA 797, [57] (Halley J) ('Kookaburra').

[26] SGR Pastoral Pty Ltd v Christensen [2019] QSC 229, [37] (Bowskill J) ('SGR Pastoral'); applied in Re Bioaction 559 and Kornucopia (No 1) 333.

[27] Re Ironsons Homes [31], citing Emhill [28].

[28] Austar Finance 473-474; Woodgate 477; Greenmint Pty Ltd v O'Keefe [2015] VSC 326 (Gardiner AsJ).

[29] See Re Ironsons Homes [32], citing Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2003] QSC 98; (2004) 1 Qd R 140, 142-143 (Helman J); Deputy Commissioner of Taxation v Melking Holdings Pty Ltd [2019] FCA 988, [60]-[62] (Colvin J); Woodgate 478.

[34] [2021] VSC 487.

[37] [2025] WASC 101.

[39] Re Ironsons Homes [43] and the authorities referred to there.

[40] [1959] HCA 8; (1959) 101 CLR 298.

[41] SGR Pastoral [37]. Applied in Re Bioaction 559 and Kornucopia (No 1) 333.

[43] [2023] VSC 179 ('Re Lifestyle Residences').

[45] See also Civil Procedure Act 2010 (Vic) s 65C; Farid Assaf, Assaf's Winding Up in Insolvency (LexisNexis, 3rd ed, 2021) ('Assaf's Winding Up in Insolvency'), [10.101], citing Re Mailrite Pty Ltd (1985) 9 ACLR 863, 867-868 (Master Lee); Re Great Barrier Reef Flying Boats Pty Ltd (1982) 6 ACLR 820, 822 (Thomas J); Morepine Pty Ltd v Crush Pacific Industries Pty Ltd (1996) 20 ACSR 41, 44 (Young J).

[46] Towercom Pty Ltd v Fahour (No 4) [2013] VSC 585; Ritter v Godfrey (1920) 2 KB 47, 54 (Atkin LJ); Donald Campbell & Co Ltd v Pollak [1927] AC 732, 809 (Viscount Cave LC); Milne v Attorney-General (Tas) [1956] HCA 48; (1956) 95 CLR 460, 477 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 86 (Gaudron and Gummow JJ).

[47] Assaf's Winding Up in Insolvency [9.19].

[48] See Colgate Palmolive Company v Cussens Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189; Yap v Lee [2019] VSC 743.

[49] J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; (1993) 46 IR 301 (French J).

[50] Ballam v Ferro (No 2) [2022] NSWSC 1358, [68] (Hallen J), citing Vector Corrosion Technologies Ltd v E-Chem Technologies [2022] FCA 519, [38] (Jagot J).

[51] Banksia Securities Ltd v Insurance House Pty Ltd [2020] VSC 234, [15] (J Dixon J); Winslow Constructors Pty Ltd v Head, Transport for Victoria [2021] VSC 74; (2021) 64 VR 200, 204 (Riordan J).