Kookaburra Educational Resources Pty Limited v MacGear Limited Partnership trading as MacGear Australia, in the matter of Kookaburra Educational Resources Pty Limited [2021] FCA 797

Federal Court of Australia

Kookaburra Educational Resources Pty Limited v MacGear Limited Partnership trading as MacGear Australia, in the matter of Kookaburra Educational Resources Pty Limited [2021] FCA 797 File number: NSD 221 of 2021

Judgment of: HALLEY J

Date of judgment: 16 July 2021

Catchwords: BANKRUPTCY AND INSOLVENCY – application to set aside statutory demand pursuant to s 459G of the Corporations Act 2001 (Cth) – whether application served within statutory period pursuant to s 459G(2) of the Corporations Act – whether Service and Execution of Process Act 1992 (Cth) applies to service of statutory demands – whether effective informal service of statutory demand on responsible officer of debtor company – whether subsequent service of duplicate statutory demands restarts the statutory period in s 459G(2) of the Corporations Act – whether statutory demand null and void for non-compliance with prescribed form pursuant to s 459E(2)(e) of the Corporations Act – where demand specifies interstate address for service not at the registered office of the creditor – whether exceptional circumstances – application dismissed. PRACTICE AND PROCEDURE – application for leave pursuant to r 29.07 of the Federal Court Rules 2011 (Cth) to rely on affidavits filed in irregular form – where affidavits failed to include date on first visible page pursuant to r 29.02(2)(b) of the Federal Court Rules – whether date in annexure sufficient to find document is an affidavit – whether affidavit accompanying application pursuant to s 459G(3)(a) of the Corporations Act must annex statutory demand – leave granted.

Legislation: Constitution s 51(xxiv) Acts Interpretation Act 1901 (Cth) s 28A Corporations Act 2001 (Cth) ss 9, 109X, 459E, 459G, 459H, 459J Corporations Regulations 2001 (Cth) reg 1.0.03, Schs 1, 2 Federal Court Rules 2011 (Cth) rr 1.34, 1.40, 8.21, 29.02, 29.07 Service and Execution of Process Act 1992 (Cth) ss 3, 9, 13, 15, 16 Service and Execution of Process Regulations 2018 (Cth) reg 6, Sch 1