24 February 2010
Summary

Irish Bentley Lawyers acted for Forza Finance Pty Ltd (Forza), and successfully argued that the rules relating to service of applications pursuant to section 459G Corporations Act 2001 (“the Act“) should be changed.

Section 459G of the Act provides that a statutory demand can only be set aside if a Supreme Court Application is filed, and served within 21 days of receipt of the statutory demand.

If service of the application is not effected within 21 days, then the company is presumed to be insolvent and any creditor can apply for the company to be wound up.

It is therefore crucial that service of the application occur within 21 days.

This decision changed the requirements for service of an application pursuant to section 459G of the Act in the State of Queensland.

Before this decision, the application had to be served on the party who issued the statutory demand within 21 days.

This decision confirms that service can instead be served by facsimile to the address nominated in the statutory demand (even if the nominated address is not the company’s registered office).

Material facts

On 9 November 2010, Vergepoint Sales and Mangement Pty Ltd (Vergepoint) served a statutory demand on Forza, demanding that certain monies be paid.

The statutory demand stated that the address for service was the offices of the solicitors acting for Vergepoint.

Exactly 21 days later (on 30 November 2010), Forza served an application seeking that the statutory demand be set aside pursuant to section 459G of the Act by facsimile to the solicitors acting for Vergepoint, being the address nominated in the statutory demand.

A copy was also served by registered post, however Vergepoint did not receive this copy until after the required 21 day period.

Vergepoint did not deny receiving the facsimile of 30 November 2010, but instead argued:

1. that a s 459G Application needed to be served personally on Vergepoint within 21 days.

2. serving by facsimile was not effective service, as it was not physically sent to the address for service nominated in the statutory demand itself (ie by postage or delivery).

3. serving on the law offices of Vergepoint did not constitute service on Vergepoint personally, as it was not the registered office for Vergepoint and therefore had not been served by way of any of the means nominated in section 109X of the Act.

Decision

His Honour Justice Daubney QC of the Supreme Court of Queensland rejected Vergepoint’s arguments, and held that:

1. the s 459G Application had been validly served.

2. service can be effected by facsimile transmission.

3. service can be effected upon the address for service nominated in the demand.

4. Forza had validly served the Originating Application (pursuant to s 459G of the Act) by facsimile upon Vergepoint’s solicitors (being the nominated address for service) for the purposes of Uniform Civil Procedure Rules 1999 (Qld) and the Act.

A copy of the decision is available online.