Polstar Pty Ltd v Agnew [2007] NSWSC 114

Polstar Pty Ltd v Agnew [2007] NSWSC 114

The statutory demand was not served by post under s.109X of the Corporations Act 2001 (Cth) or s.28A of the Acts Interpretation Act 1901 (Cth), because the Green Valley post office box was not shown to be any office of the plaintiff or a means of access to such an office. However, it was informally served when it came into the possession of the plaintiff's sole director, who was the company's guiding mind and will, and the plaintiff then acted on the footing that it had been served. Service therefore occurred on 19 October 2006 and the s.459G application filed and served on 8 November 2006 was within time. The demand was set aside under s.459J(1)(b) because the defendant knew when she...

Jurisdiction
Australia
Judgment Date
22 February 2007
Procedural Posture
Application Under S.459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Final Judgment
Outcome
Statutory demand set aside. Defendant to pay plaintiff's costs.
Legal Topics
['statutory Demand' 'service of Documents' 'service by Post' 'post Office Box' 'informal Service' 'genuine Dispute' 'abuse of Process' 'application to Set Aside Statutory Demand']
['corporations Law' 'insolvency Law' 'civil Procedure'] ['statutory Demand' 'service of Documents' 'service by Post' 'post Office Box' 'informal Service' 'genuine Dispute' 'abuse of Process' 'application to Set Aside Statutory Demand']

Case Brief

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Procedural Posture

Application Under S.459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Final Judgment

Legal Issues

  1. 1 ['Whether a statutory demand sent by post to a post office box was served on the plaintiff under s.109X of the Corporations Act 2001 (Cth) or s.28A of the Acts Interpretation Act 1901 (Cth).' "Whether actual receipt of the statutory demand by the plaintiff's sole director amounted to informal service on the plaintiff." 'When service occurred for the purpose of the 21 day time limit in s.459G of the Corporations Act 2001 (Cth).' "Whether the defendant's use of the statutory demand procedure, while aware of a genuine dispute about the amount claimed, was an abuse of process or otherwise provided some other reason to set aside the demand under s.459J(1)(b)."]

Ratio Decidendi

The statutory demand was not served by post under s.109X of the Corporations Act 2001 (Cth) or s.28A of the Acts Interpretation Act 1901 (Cth), because the Green Valley post office box was not shown to be any office of the plaintiff or a means of access to such an office. However, it was informally served when it came into the possession of the plaintiff's sole director, who was the company's guiding mind and will, and the plaintiff then acted on the footing that it had been served. Service therefore occurred on 19 October 2006 and the s.459G application filed and served on 8 November 2006 was within time. The demand was set aside under s.459J(1)(b) because the defendant knew when she...

Court Disposition

Statutory demand set aside. Defendant to pay plaintiff's costs.

Orders

  • ['The statutory demand is set aside.' "The defendant is to pay the plaintiff's costs of the proceedings."]