Bioaction Pty Ltd v Ogborne, in the matter of Bioaction Pty Ltd [2022] FCA 436

Bioaction Pty Ltd v Ogborne, in the matter of Bioaction Pty Ltd [2022] FCA 436

Where an application and supporting affidavit to set aside a statutory demand under s 459G of the Corporations Act 2001 are served in PDF format by email to the recipient’s solicitors at electronic addresses believed on reasonable grounds to be current for receiving court documents, and those emails are capable of being retrieved and opened in legible form at the nominated address within the statutory period, service within the meaning of s 459G is satisfied, regardless of whether the recipient actually accesses or opens them within the period.

Jurisdiction
Australia
Judgment Date
26 April 2022
Procedural Posture
Application to Set Aside Statutory Demand / Determination of Separate Question (r 30.01 Federal Court Rules 2011)
Outcome
Separate question answered 'yes': application and affidavit were filed and served within the 21 day period prescribed by s 459G.
Legal Topics
['service of Documents' 'setting Aside Statutory Demand' 'electronic Communication of Legal Documents']
['corporations Law'] ['service of Documents' 'setting Aside Statutory Demand' 'electronic Communication of Legal Documents']

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Procedural Posture

Application to Set Aside Statutory Demand / Determination of Separate Question (r 30.01 Federal Court Rules 2011)

Legal Issues

  1. 1 ['Whether the application to set aside a statutory demand and supporting affidavit were served within the 21 day statutory period specified in s 459G of the Corporations Act 2001 (Cth)' "Whether service by email using PDF attachments to the defendant's solicitor was valid service within statutory period under s 459G" 'Whether the legislative amendments (ss 600G, 105A, 105B Corporations Act 2001) permitted electronic service without prior nomination or express consent' 'Whether the PDF documents were in complete and legible form for the purposes of service']

Ratio Decidendi

Where an application and supporting affidavit to set aside a statutory demand under s 459G of the Corporations Act 2001 are served in PDF format by email to the recipient’s solicitors at electronic addresses believed on reasonable grounds to be current for receiving court documents, and those emails are capable of being retrieved and opened in legible form at the nominated address within the statutory period, service within the meaning of s 459G is satisfied, regardless of whether the recipient actually accesses or opens them within the period.

Court Disposition

Separate question answered 'yes': application and affidavit were filed and served within the 21 day period prescribed by s 459G.

Orders

  • ["The separate question is answered 'yes.'" "The defendant pay the plaintiff's costs of the hearing of the separate question." 'The originating application filed 3 February 2022 is listed for case management before a Registrar on Wednesday, 4 May 2022 at 11:00 am or as otherwise ordered.' 'Leave granted to parties...