Supreme Court New South Wales Medium Neutral Citation: In the matter of Ko Veda Holiday Park Estate Ltd CAN 109 375 831 [2015] NSWSC 215 Hearing dates: 2 February 2015 Date of orders: 02 February 2015 Decision date: 02 February 2015 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Originating process dismissed; interlocutory process dismissed; plaintiff pay the defendant's costs of the proceedings assessed in the sum of $13,750. Catchwords: CORPORATIONS – creditor's statutory demand – application to set aside a statutory demand – service of application – failure to serve within 21 day statutory period – absence of jurisdiction to extend time for service – application dismissed Legislation Cited: (Cth) Corporations Act 2001, s 459F(2)(a), s 459G, s 459L Category: Procedural and other rulings Parties: Ko Veda Holiday Park Estate Ltd (plaintiff) Melissa Medo (defendant) Representation: Counsel: A Cassels (plaintiff) P Woods (defendant) Solicitors: Slattery Thompson Solicitors (plaintiff) RJIL Legal (defendant) File Number(s): 2014/344077 Judgment (Ex tempore) 1. HIS HONOUR: Under cover of a letter dated 31 October 2014, which was received on 4 November 2014 or thereabouts, the defendant Melissa Medo served on the plaintiff company Ko Veda Holiday Park Estate Limited a creditor's statutory demand claiming a sum of $32,655.30, being the total amounts of costs orders made by a Registrar of the District Court and by the Local Court at Windsor, which had been the subject of assessment and certificates of determination. 2. On 21 November 2014, the plaintiff filed an application pursuant to (Cth) Corporations Act 2001, s 459G, seeking an order setting aside the creditor's statutory demand. The file copy of the originating process bears a return date of 2 December 2014. Although it seems that the plaintiff's solicitors sent an e-mail to the defendant's solicitors on 21 November 2014 covering a letter which purported to attach a copy of the originating process and supporting affidavit, the e-mail did not have any such attachment. On Monday 24 November 2014, a further e-mail was sent by the plaintiff's solicitors to the defendant's solicitors, this time attaching a copy of the originating process and supporting affidavit. It was not until Monday 1 December 2014 that a hard copy of the originating process and affidavit were received by the defendant's solicitors RJI Legal under cover of a letter addressed to them at Suite 1A, 101 Northumberland Road, Auburn, being the address nominated as the address for service in the creditor's statutory demand – notwithstanding that it was apparently received via a post office box, presumably due to some action of Australia Post in that respect. 3. It is not suggested that the attempts at notification by e-mail on 21 November or 24 November 2014 could be valid service of the originating process, and the plaintiff now accepts that the earliest date upon which service could arguably be said to have been effected is 1 December 2014. 4. The supporting s 459G affidavit was very short in scope and light in content. It said in substance only that the documents attached to the creditor's statutory demand did not include a copy of any judgment entered in a court having jurisdiction nor an affidavit verifying the debt – neither of which was, in the circumstances, required; and that the plaintiff was considering whether there were grounds to apply for review of the costs assessment determination – the mere fact of which would not be a sufficient ground for the setting aside of a demand. Of course, by operation of the Graywinter principle, the plaintiff would have been restricted on the hearing of the application to the grounds set out in the s 459G affidavit had it been served in time. 5. But it suffices for disposal of the present application to address only the question of service. As the application and affidavit was not served within 21 days of the date of service of the creditor's statutory demand, there was no compliant application for the purposes of s 459G. For that reason, the company cannot be said to have applied "in accordance with s 459G" for an order setting aside the demand, for the purposes of s 459F(2)(a). In those circumstances, time for compliance with the demand is not extended automatically by subparagraph (2), nor can it be extended by order of the Court under subparagraph (1). 6. The application not being a compliant one, the result is that there is neither jurisdiction to make an order setting aside the demand, nor to make an order extending time for compliance with it. 7. Ultimately, in December 2014, the plaintiff indicated that it would withdraw the application and today sought leave to discontinue it. It seems to me the better view is that s 459L requires that, if the court does not make an order setting aside the demand, it should dismiss the application. 8. The defendant sought a lump sum costs order. Ultimately, when I indicated that I was inclined to assess costs in a particular amount if satisfied that the defendant should have an order, the parties both indicated that they would accept the amount I then indicated. 9. Accordingly, the court orders that: 1. The originating process filed 21 November 2014 be dismissed. 2. The interlocutory process filed in court today (2 February 2015) be dismissed. 3. The plaintiff pay the defendant's costs of the proceedings assessed in the sum of $13,750. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2015