In the recent case of Stamford Bridge SW6 Pty Ltd [2024] NSWSC 486, the Supreme Court of NSW found that a Statutory Demand was validly served by email and the company’s application to set it aside was out of time.
The case background and the main issues: The plaintiff company applied to set aside a Statutory Demand issued by the defendant for a debt following a Building and Construction Industry Security of Payment Act 1999 (NSW) adjudication. The main issues were whether the Demand was effectively served by email and whether the application to set aside the Statutory Demand was filed and served within the statutory period.
The evidence and findings on service of the Statutory Demand: The defendant sent the Statutory Demand to an email address used by one of the plaintiff’s directors, which the Court found to be the plaintiff’s nominated electronic address. The Court held that the Statutory Demand was served by electronic communication in accordance with s 600G of the Corporations Act 2001 (Cth) on 5 September 2023.
The evidence and findings on service of the application to set aside the Statutory Demand: The plaintiff’s solicitors sent the application and supporting affidavit to the defendant by email on 28 September 2023, which was after the expiry of the 21-day statutory period. The Court rejected the plaintiff’s contention that the Statutory Demand was first served on 7 September 2023, when the plaintiff received a copy of the Demand from another source.
The conclusion and orders of the Court: The Court concluded that there was no application before the Court that had been made in accordance with s 459G of the Corporations Act, and that the proceedings must be dismissed. The Court also ordered that the parties make submissions on costs.
Key Takeaways: be very careful to ensure that applications to set aside a Statutory Demand are made within the 21-day statutory period. Particular vigilance about when time starts to run for the statutory period is needed when a document is purportedly served by email.
For more information about commercial litigation disputes, contact David Collins in the Mullane & Lindsay litigation team.
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https://www.caselaw.nsw.gov.au/decision/18f2c79ec91393a30b81077b
