In the matter of Healthy Industries Pty Ltd [2018] NSWSC 1172

In the matter of Healthy Industries Pty Ltd [2018] NSWSC 1172

The statutory demand and accompanying affidavit were properly addressed, prepaid and posted to the plaintiff's registered office on 6 February 2018. The plaintiff's challenges about address visibility and postage were speculative and did not undermine the evidence of posting. The evidence from the directors...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
31 July 2018
Procedural Posture
Application Under S 459 G of the Corporations Act 2001 (cth) to Set Aside a Creditor's Statutory Demand / Determination of Separate Question as to Whether the Application Was Served Within the Requisite 21 Day Period
Outcome
Separate question answered in the negative; the plaintiff's application under s 459G was not served within time.
Legal Topics
['statutory Demand' 'service by Post' 'registered Office' 'presumption of Receipt' 'time Limit Under S 459 G' 'separate Question']
['corporations' 'civil Procedure' 'evidence'] ['statutory Demand' 'service by Post' 'registered Office' 'presumption of Receipt' 'time Limit Under S 459 G' 'separate Question']

Source-derived case record

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Procedural Posture

Application Under S 459 G of the Corporations Act 2001 (cth) to Set Aside a Creditor's Statutory Demand / Determination of Separate Question as to Whether the Application Was Served Within the Requisite 21 Day Period

Legal Issues

  1. 1 ["Whether the plaintiff's application under s 459G of the Corporations Act 2001 (Cth) to set aside the statutory demand was served within the time specified in s 459G." "Whether the evidence raised a sufficient doubt under s 160 of the Evidence Act 1995 (NSW) as to receipt of the statutory demand at the plaintiff's registered office." 'Whether the statutory demand was properly addressed, prepaid and posted for the purposes of service by post.']

Ratio Decidendi

The statutory demand and accompanying affidavit were properly addressed, prepaid and posted to the plaintiff's registered office on 6 February 2018. The plaintiff's challenges about address visibility and postage were speculative and did not undermine the evidence of posting. The evidence from the directors established at most non-receipt by them, not non-delivery or sufficient doubt about receipt at the registered office, particularly given the evidence about the mailbox and mail collection arrangements. The presumption in s 160 of the Evidence Act therefore applied, so the demand was served no later than 15 February 2018 on the amended provision, or 12 February 2018 on the unamended...

Court Disposition

Separate question answered in the negative; the plaintiff's application under s 459G was not served within time.

Orders

  • ['The separate question as to whether the plaintiff\'s application under s 459G to set aside the statutory demand issued by the defendant was served within time should be answered "no".' "Costs of the determination of the separate question are the defendant's costs in the cause." 'List the matter for further...