Steel v Beks [2010] NSWSC 1405

Steel v Beks [2010] NSWSC 1405

The statutory demand was properly posted by express post to the plaintiff's registered office on 26 July 2010. The evidence established that, in the ordinary course of express post within the relevant network, it would be delivered on the next business day, 27 July 2010. Service was therefore effected on 27 July 2010 under s 109X of the Corporations Act 2001 (Cth) and s 29(1) of the Acts Interpretation Act 1901 (Cth). The 21-day period for an application under s 459G expired on 17 August 2010, but the originating process and supporting affidavit were filed and served on 19 August 2010. The proceedings were out of time and were dismissed.

Jurisdiction
Australia
Judgment Date
06 December 2010
Procedural Posture
Application Under S 459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Determination of Proceedings
Outcome
Proceedings dismissed with costs.
Legal Topics
['statutory Demand' 'service by Post' 'express Post' 'time Limit for Setting Aside Statutory Demand' 'genuine Dispute' 'offsetting Claim' 'adjudication Certificates']
['corporations Law' 'evidence' 'statutory Interpretation' 'construction Law'] ['statutory Demand' 'service by Post' 'express Post' 'time Limit for Setting Aside Statutory Demand' 'genuine Dispute' 'offsetting Claim' 'adjudication Certificates']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the s 459G application to set aside the statutory demand was commenced within time.' 'Whether service of the statutory demand by express post was deemed effected on 27 July 2010 under s 109X of the Corporations Act 2001 (Cth) and s 29(1) of the Acts Interpretation Act 1901 (Cth), or on 30 July 2010 by operation of s 160 of the Evidence Act 1995 (NSW).' 'Whether there was a genuine dispute or offsetting claim in relation to alleged overcharging and defects.']

Ratio Decidendi

The statutory demand was properly posted by express post to the plaintiff's registered office on 26 July 2010. The evidence established that, in the ordinary course of express post within the relevant network, it would be delivered on the next business day, 27 July 2010. Service was therefore effected on 27 July 2010 under s 109X of the Corporations Act 2001 (Cth) and s 29(1) of the Acts Interpretation Act 1901 (Cth). The 21-day period for an application under s 459G expired on 17 August 2010, but the originating process and supporting affidavit were filed and served on 19 August 2010. The proceedings were out of time and were dismissed.

Court Disposition

Proceedings dismissed with costs.

Orders

  • ['I dismiss the proceedings with costs.']