In brief

In a recent Supreme Court case[1], the Court held that a statutory demand was not served because it was incorrectly addressed to the Company.

What you need to know

In this case, there was a dispute as to whether the statutory demand was served on the company as follows:

  • The registered company address was addressed to “Pacific Way” rather than “Pacific Highway”.
  • The company claims that it never received the statutory demand.
  • The plaintiff claims that it was posted by ordinary post and that the mistake in the registered address would not have prevented delivery.
  • The plaintiff was unable to confirm with Australia Post that it was definitely delivered to the company’s address.

Statutory demands are the first step in the process to wind up a company where there is a debt due and owing with no genuine dispute.  Given the severe consequences of not complying with the statutory demand, the Court requires that the statutory demand form be completed and served correctly. Failure to do so can result in the statutory demand being set aside.

The decision

  •  The consequences of not complying with the statutory demand are that the company may be wound up.
  • The Court could not be satisfied that the statutory demand was delivered to the registered office of the company as it was not written in the statutory demand exactly as it appeared in the ASIC search.

Lessons

This was an expensive lesson for the creditor who made a minor typographical error which had major consequences.

This is a timely reminder to seek legal advice to ensure that your statutory demand is completed and served correctly to have the desired effect and to avoid an expensive Court hearing setting it aside.

 

 

[1] Mills Oakley v Asset HQ Australia Pty Ltd [2019] VSC 98

About the Author

Catherine Ballantyne

Special Counsel
A business disputes specialist, Catherine is a trusted advisor to businesses and individuals in obtaining successful outcomes. Businesses rely on Catherine as a trusted advisor as well as lawyer in guiding them through complex litigation and disputes.

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