Federal Court of Australia
JUDGMENT No, ZEAL E25
IN THE FEDERAL COURT OF AUSTRALIA ) BANKRUPTCY DISTRICT ) No. NG 3685 of 1995 OF THE STATE OF NEW SOUTH WALES )
Re: ANTHONY BICANIC Debtor
Ex parte: DERNAN PTY LIMITED Creditor
REASONS FOR JUDGMENT
EINFELD J SYDNEY 7 MAY 1995
A demand for the payment of $35,000 by the respondent to the applicant was made under section 459E(2)(e) of the Corporations Law on 7 November 1995. Although the demand itself does not say so, an affidavit of debt later filed by the applicant says that the debt arose from a loan in or about August 1988. As a consequence, this debt could not at the time of the issue of the
statutory demand have been successfully sued for in a court of
'law because it was statute barred.
The statutory demand was, according to an affidavit of the solicitor for the applicant, served on 7 November 1995 at the registered office of the respondent company which was at the office of its accountant, Robert Hauer, in Bondi Junction. demand;, was that the money be paid within 21 days but not
"= -2- heard by the applicant or his solicitor in that period and
accordingly the statutory period expired on 28 November.
On 4 December the applicant filed an application to wind up the
'company on the basis of the failure to comply with the demand
within the 21 day period laid down. The winding up application was not served until on or about 15 December 1995 when it was forwarded by pre-paid ordinary post to the registered address which was still in Hauer's office. Nothing was heard by the applicant thereafter until about 5 January 1996 when the envelope containing the winding up application was returned unopened and marked "refused", under a stamp showing a hand pointing to the original address, and the sign "Return to
sender",
Accordingly, on 8 January 1996 the application was faxed to the registered address and it seems also to have been dispatched by post to the secretary of the respondent company at the same address. Next, a letter dated 31 January from solicitors representing the respondent was received on 2 February by the
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