Supreme Court New South Wales Medium Neutral Citation: In the matter of AXL Financial Pty Ltd [2019] NSWSC 867 Hearing dates: 25 June 2019 Decision date: 11 July 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: Finding that, for the purposes of s 459G of the Corporations Act, a copy of the application to set aside the Demand and a copy of the supporting affidavit was not served within 21 days – in consequence, no basis for rectification of register to remove record of winding up application is established. Orders made directing the parties as to conduct for giving effect to this judgment. Catchwords: CORPORATIONS – separate question – application to set aside a creditor's statutory demand – where application filed in Family Court registry – where delay in allocation of a return date and providing sealed copies of application – where application purportedly served on defendant without a court seal or return date – whether service was effected – whether basis to remove record of winding up application is established. Legislation Cited: - Corporations Act 2001 (Cth) ss 58AA, 459F(1), 459G, 459G(3), 459G(3)(b), 459S, 1322, 1322(4)(b) - Family Law Rules 2004 (Cth) rr 5.01(2), 5.01(6), 24.05 25.02 - Federal Court (Corporations) Rules 2000 (Cth) r 2.3 Cases Cited: - Adhesive Pro Pty Ltd v Blackrock Supplies Pty Ltd [2015] ACTSC 288 - Australian Foods Company Pty Ltd v O'Donnell [2002] WASC 129 - Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 1181 - Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2004] QSC 308; [2005] 1 Qd R 12 - Craneford Nominees Pty Ltd v VGC Co-operative Ltd (2012) 262 FLR 283 - David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 - Kay v Playup Australia Pty Ltd (2018) 131 ACSR 532 - LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134 - Newsnet Pty Ltd v Patching [2011] NSWSC 690 - Opensoft Australia Pty Ltd v Miller Street Pty Ltd [2011] FCA 653 - PCM Nominees (WA) Pty Ltd v ACN 063 291 430 Pty Ltd [2017] FCA 848 - Re Webster Consolidated (Holdings) Pty Ltd [2016] NSWSC 376 - Vicbar Pty Ltd v Development Constructions (Newcastle) Pty Ltd (1995) 13 ACLC 1220 Category: Procedural and other rulings Parties: Gordon Leslie Slater (Plaintiff) AXL Financial Pty Ltd (Applicant/Defendant) Australian Securities and Investments Commission (Respondent) Representation: Counsel: T Sperber (Solicitor) (Applicant) R Scheelings (Respondent) Solicitors: TPS & Co Lawyers (Applicant) File Number(s): 2018/393589 Judgment Background 1. By Originating Process filed on 21 December 2018, the Plaintiff, Dr Gordon Slater, applied for an order winding up AXL Financial Pty Ltd ("AXL") on the grounds of insolvency ("winding up application"). That application was brought by reference to an unsatisfied creditor's statutory demand for payment of debt dated 20 November 2018 ("Demand"), which claimed a debt in the amount of $27,892.62 owed by AXL to Dr Slater pursuant to an order made by Kemp J in the Federal Circuit Court of Australia on 27 September 2018. On 18 February 2019, I made an order by consent that the winding up application brought by Dr Slater be dismissed. 2. In the meantime, by Interlocutory Process dated 11 February 2019, AXL joined the Australian Securities and Investments Commission ("ASIC") as party to the application and sought an order under s 1322 of the Corporations Act 2001 (Cth) that ASIC rectify its register in respect of AXL by removing all references to the winding up application and these proceedings, including but not limited to the Form 519 lodged by or on behalf of Dr Slater in respect of AXL; any further forms relating to the cessation of the winding up application and their subsequent lodgement and in any form annexing a copy of the Court's order. That was, to say the least, an ambitious attempt to rewrite history, which will fail for the reasons set out below. 3. When AXL's application to rectify ASIC's register to exclude references to the winding up application was listed before me for hearing on 25 June 2019, Dr Slater did not appear. ASIC made submissions, to assist the Court, in relation to the status of the winding up application and also foreshadowed submissions opposing the orders sought for rectification of its register so far as they included reference to the winding up application. 4. AXL's contention that it had filed and served an application to set aside the Demand within the 21 day period specified in s 459G of the Corporations Act, and its consequential challenge to the propriety of Dr Slater's winding up application, is an essential premise of its attempt to rectify ASIC's register to exclude reference to the winding up application. In her written outline of submissions, Counsel retained for AXL, who did not appear at the hearing, fairly acknowledged that there would be no power to compel rectification of ASIC's register where a winding up application had been validly made. Mr Sperber, who appeared for AXL in the application, also fairly recognised that, if Dr Slater's winding up application had been properly brought, then AXL's application to rectify ASIC's register to exclude reference to the winding up application must fail. That concession was consistent with authority that, if AXL did not bring an application to set aside the Demand in accordance with s 459G of the Act, then s 1322(4)(b) of the Act would not be engaged to permit rectification of ASIC's register recording that application: Kay v Playup Australia Pty Ltd (2018) 131 ACSR 532 at [59]. 5. Once the significance of this premise to AXL's application, and the difficulties with it, emerged at the hearing, I made an order that a separate question be determined prior to the balance of the proceedings as to whether, for the purposes of s 459G(3) of the Corporations Act, a copy of AXL's application to set aside the Demand and a copy of the supporting affidavit was served on Dr Slater within 21 days of the date of the Demand. As will emerge below, I am comfortably satisfied that AXL had not filed and served an application to set aside the Demand within the 21 day period specified in the Corporations Act; the winding up application was properly brought by Dr Slater against AXL, although ultimately resolved by consent; and in those circumstances AXL's application to rectify ASIC's register to exclude reference to the winding up application cannot succeed, consistent with the concession properly made by AXL in that regard. Affidavit evidence and factual background 1. AXL relied on an affidavit dated 22 March 2019 of Mr John Costigan, a commercial and private inquiry agent who is its Acting Group Manager Risk Assessment. Mr Costigan acknowledged that, on 27 September 2018, Kemp J had made an order in the Federal Circuit Court of Australia that AXL pay the costs of Dr Slater of an application in proceedings in that Court, on an indemnity basis and fixed in the assessed sum of $27,892.62, with such payment to be made within 28 days, and had then transferred the balance of the proceedings in the Federal Circuit Court to the Family Court of Australia. Mr Costigan notes that Mr O'Sullivan of O'Sullivan Legal was the solicitor on the record for Dr Slater in respect of that application and that Mr O'Sullivan had also filed a Notice of Appearance for Dr Slater in proceedings in the Family Court between Dr Slater and his wife. 2. It appears that AXL failed to pay the costs as ordered by Kemp J and, on 30 October 2018, O'Sullivan Legal on behalf of AXL served an unsigned creditor's statutory demand for payment of the debt. Not surprisingly, no further steps were taken to bring about a winding up of AXL on the basis of any failure to comply with that unsigned creditor's statutory demand. 3. Mr Costigan's evidence is that, on 15 October 2018, he was notified of an application to be made by Dr Slater's wife in the Family Court proceedings regarding AXL's liability under the costs order (Costigan 22.3.19 [13]), which sought an order that the monies that were due by AXL to Dr Slater be paid to his wife, by "offset" of obligations to the wife under the Family Court proceedings. On 16 November 2018, Dr Slater's wife discontinued that application, but subsequently brought a further application in the Family Court proceedings by way of a "third party debt notice" seeking payment to her of the costs payable by AXL to Dr Slater. 4. Mr Costigan's evidence is that, on 21 November 2018, the Demand (now in a signed form) was served requiring payment of a debt in the amount of $27,892.62, which Mr Costigan rightly recognises was the amount of the costs order that had previously been made against AXL in the proceedings in the Federal Circuit Court. The Demand was dated the day before, 20 November 2018, and was served under cover of a letter from Farrar Lawyers which indicated that firm acted for Dr Slater (Ex A1, Tab 5). Mr Costigan apparently recognised that Dr Slater was now represented by different solicitors in respect of the Demand, since his affidavit records his "surprise" as to that matter. 5. The Demand described the debt of $27,892.62 owed by AXL to Dr Slater as: "A debt owed to [Dr Slater] pursuant to an Order/judgment made by Judge Kemp in Federal Circuit Court of Australia Proceedings SYC87/2013 on 27 September 2018." It annexed the order made by the Federal Circuit Court that gave rise to that liability. The Demand also identified the address of Farrar Lawyers as Dr Slater's address for service of copies of any application and affidavit to set aside the Demand, and contained the prescribed statement that: "Section 459G of the Act provides that a company served with a demand may apply to a court having jurisdiction under the Act for an order setting the demand aside. An application must be made within 21 days after the demand is served and, within the same period: (a) an affidavit supporting the application must be filed with the court; and (b) a copy of the application and a copy of the affidavit must be served on the person who served the demand. A failure to respond to a statutory demand can have very serious consequences for a company. In particular, it may result in the company being placed in liquidation and control of the company passing to the liquidator of the company." 1. Mr Costigan's evidence is that he attended a listing before a Registrar in the Family Court proceedings on 3 December 2018, when he indicated that AXL would make an application to set aside the Demand and the Registrar stated that that application could be made in the Family Court and could be linked to the third party debt proceedings brought by Dr Slater's wife and those matters could be dealt with simultaneously. 2. Mr Costigan's evidence (Costigan 22.3.19 [32]) is that, on 6 December 2018, he prepared an "Application in a Case" in the Family Court proceedings by which AXL sought orders that the Demand be set aside, his affidavit in support of that application and an exhibit in support of that application. He then attended at the Family Court Registry and filed the application to set aside the Demand and his supporting affidavit and duplicate copies in the Family Court Registry. The form of application to set aside the Demand records the file number of the Family Court proceedings, apparently inserted by Mr Costigan prior to the filing of the document rather than by the Family Court. 3. Although no party took any point as to this in this application, AXL was then not party to the proceedings in which it purported to apply to set aside the Demand, although it also sought an order from the Family Court that it be permitted to intervene in those proceedings for the purposes of making that application. I note, for completeness, that I offered AXL the opportunity to identify the relevant provisions of the Family Law Rules 2004 (Cth) that authorised the filing of AXL's application in the Family Court proceedings involving Dr Slater and his wife, rather than as separate proceedings. Mr Sperber referred to rr 5.01(2) and 5.01(6) of the Family Law Rules, neither of which appear to be applicable since each applies to a "party" to the proceedings, and AXL was not then party to the proceedings. 4. Mr Costigan also gives evidence (Costigan 22.3.19 [34]) of the process adopted by the Family Court for dealing with applications filed in the Registry, apparently on the basis of experience acquired by AXL in the proceedings involving Dr Slater and his wife. His evidence is that an application is not automatically allocated a return date when filed in the Family Court; the Family Court Registry does not provide sealed or stamped copies of the application or supporting affidavits to the applicant at the time of filing; the Family Court Registry takes the original of the document, with duplicates, so that they may be stamped by the Registry once a return date has been allocated and sealed documents are then posted by the Registry to the applicant or can be collected from the Registry; and exhibits to affidavits are not filed with the Registry. 5. Mr Costigan also gives evidence of a conversation with a clerk in the Family Court Registry (Costigan 22.3.19 [36]-[39]) when he filed the application to set aside the Demand, in which Mr Costigan referred to the need to have that application stamped with the filing date, the Registry clerk then consulted with the Family Court Registry's case coordinator and Mr Costigan was advised that the application and affidavit in support would be date stamped 6 December 2018 and the stamped originals and two stamped copies would be posted to AXL after the Docket Registrar in the Family Court had given the application a return date. Mr Costigan's evidence is that the clerk in the Family Court Registry also advised Mr Costigan that the Family Court's access portal would show the application was filed on that day. 6. Mr Costigan's evidence (Costigan 22.3.19) is that the Family Court Registry then took steps such that AXL's application to set aside the Demand and Mr Costigan's affidavit in support were recorded as filed, with a return date not yet allocated, in the Family Court's portal and returned two duplicates and the exhibit to Mr Costigan. The duplicates that were returned by the Family Court Registrar were not stamped with any evidence of filing with the Family Court and did not have a listing date recorded on them, because a listing date for the application had not then been allocated. Mr Costigan in turn exhibits an extract from the Commonwealth Court's portal which shows that the application to set aside the Demand and his affidavit in support were filed on 6 December 2018 in the Family Court proceedings (Ex A1, Tab 10). 7. I pause to note that it cannot be known whether the Family Court Registry would have taken a different approach had Mr Costigan or a legal representative for AXL drawn its attention to the 21 day time limit for service of an application to set aside a creditor's statutory demand and supporting affidavit, as set by s 459G of the Corporations Act, or the rules applicable to corporations matters in the Family Court, to which I refer below. Neither Mr Costigan or AXL drew the Family Court Registry's attention to those matters. 8. Mr Costigan then delivered a copy of the application to set aside the Demand and his affidavit in support, not showing either a filing stamp or a hearing date, to O'Sullivan Legal, the solicitors acting for Dr Slater in the Family Court proceedings rather than to the address for service shown in the Demand. He advised the receptionist of O'Sullivan Legal that Mr O'Sullivan (I interpolate, as distinct from the solicitor acting for Dr Slater in respect of the Demand) could check the Family Court portal for a return date (Costigan 22.3.19 [44]). The copy of the documents then "served" by AXL on O'Sullivan Legal contained nothing, whether by way of Court seal, Court stamp, a return date, a signature of a Registrar or otherwise, evidencing the authenticity of the document as a copy of an application accepted by the Family Court, and the proceedings number which were included in that copy had been included by AXL rather than by the Court. 9. Mr Costigan's evidence is that, on 10 December 2018, he made online inquiries with the Family Court Registry about whether AXL's application to set aside the Demand had been allocated a return date and when he could obtain a sealed copy of that application and the affidavit in support from the Family Court Registry. The Family Court did not respond to that inquiry, but the solicitors acting for Dr Slater's wife advised Mr Costigan that the Family Court would either send the sealed documents to AXL or would make them available for AXL's collection. On the same date, the wife's solicitors advised Farrer Lawyers the solicitors acting for Dr Slater in respect of the Demand (and copied O'Sullivan Legal, the solicitors acting for Dr Slater in the Family Court proceedings) that AXL had filed the application to set aside the Demand in the Family Court on 6 December 2018 (Ex A1, Tab 11). 10. AXL fairly conceded that, given the date of service of the Demand on AXL, the last day for compliance with the Demand (or, I interpolate, to file and serve an application to set it aside and the supporting affidavits complying with s 459G of the Act) was 11 December 2018. AXL had not received from the Family Court Registry, or served, a copy of the Demand showing evidence of filing in the Court or a return date by that date. I will return to the significance of that matter below. 11. Mr Costigan's evidence is that, on 19 December 2018, he received two stamped copies of the application to set aside the Demand and his affidavit in support in the post from the Family Court Registry, which were date stamped as filed on 6 December 2018 and showed the date returnable for the hearing of the application to set aside the Demand as 20 February 2019. On 20 December 2018, Mr Costigan advised O'Sullivan Legal, the solicitors acting for Dr Slater in the Family Court proceedings, of the return date of the application to set aside the Demand. On the same date, Mr Costigan also sent, by email, a copy of the sealed application to set aside the Demand filed in the Family Court, for the first time showing the date of filing and the return date, to the address for service shown for any application to set aside the Demand and asked whether Farrar Legal would be appearing on the return date or whether Dr Slater would be represented by the firm acting for him in the Family Court proceedings. 12. Farrar Legal responded, curtly but accurately, by email dated 20 December 2018 that: "There will be no need for an appearance. You are too late. Winding up proceedings will be served shortly." Further correspondence followed, but did not advance the issues as to the validity of service of the application to set aside the Demand and the filing of the winding up application which were by then in dispute. Dr Slater filed a winding up application in this Court on 21 December 2018, and on the same date lodged a Form 519 with ASIC giving notice of that application in respect of AXL (Costigan 22.3.19 [67]; Ex A1, Tabs 21-22). 1. It appears that Mr Costigan provided a further copy of the sealed application to set aside the Demand and supporting affidavit to the solicitors acting for Dr Slater in both proceedings by email dated 7 January 2019, although the time permitted under s 459G of the Act for service of any application to set aside the Demand and supporting affidavit had by then long expired. 2. I note, for completeness, that AXL also relied on an affidavit dated 12 February 2019 of Ms Isabelle Gonzalez which referred to service of the proceedings on ASIC. ASIC, of course, has appeared in the proceedings. AXL also relied on an affidavit dated 18 February 2019 of its solicitor, Mr Sperber, which referred to the fact that AXL disputed the validity of the winding up application; that Dr Slater and AXL had agreed that the winding up application be dismissed, with each party to pay their own costs; and that AXL offered an undertaking to the Court to pay late fees incurred by Dr Slater associated with lodgement of forms with ASIC following the dismissal of the winding up application. It is not necessary to deal with those matters given the findings that I reach below. Submissions and determination 1. AXL rightly noted, and it is common ground, that a company can apply for an order to set aside a creditor's statutory demand in the Family Court, which falls within the definition of "Court" in s 58AA of the Corporations Act: Re Webster Consolidated (Holdings) Pty Ltd [2016] NSWSC 376 at [7]. AXL also contended that the Family Court was the "appropriate" forum in which to file the relevant application. It is not necessary to determine that question for present purposes, since whether the application to set aside the Demand and supporting affidavit was filed and served within the time specified in s 459G of the Act, and any consequence for the winding up application, does not depend on whether that application was brought in an appropriate Court or not. 2. As I noted above, AXL fairly acknowledged that there would be no power to compel rectification of ASIC's register where a winding up application had been validly made. AXL contended that was not the case here, since its application to set aside the Demand was filed and served within the 21 day period specified in s 459G of the Act, with the suggested consequence that the winding up application had no proper basis and was invalidly made. AXL contended that, within that 21 day period, it had complied with the requirements of s 459G of the Act by filing its application to set aside the Demand and serving it on Dr Slater. 3. It is common ground that the application to set aside the Demand was filed on 6 December 2018, within that 21 day period, putting aside the fact that AXL was not party to the Family Court proceedings at the time it sought to bring that application in them. As Mr Sperber points out, r 24.05 of the Family Law Rules provides for filing of a document when it is delivered and received by the Family Court Registry. AXL also submitted, incorrectly, that there was no rule relating to the sealing or stamping of documents at the time of their filing in the Family Court. That submission neglected the rules applicable to the conduct of corporations matters in the Family Court, to which I will return below. 4. Mr Scheelings, who appeared for ASIC, rightly points to the strictness of the time limits under s 459G of the Act, by reference to the decision of the High Court of Australia in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265. He points out that, under s 459F(1) of the Act, a company is deemed to have failed to comply with a statutory demand at the end of the period of 21 days after that demand is served, where an application to set it aside was not made in accordance with s 459G of the Act, and that the period for compliance with that demand is only extended beyond the statutory limit of 21 days if an application to set it aside is made in accordance with s 459G of the Act. 5. Mr Scheelings also submits that an application to set aside a creditor's statutory demand is not an application for the purposes of s 459G of the Act unless that application is sealed or stamped and contains a return date; and the supporting affidavit when filed is sealed and stamped, and that only copies of such documents may be served on a defendant or a nominated agent within the 21 day period specified in s 459G of the Act. Mr Scheelings submits that the documents "served" by Mr Costigan within that 21 day period did not bear either a seal or stamp of the Family Court and did not contain a return date; and were "served" on the solicitors acting for Dr Slater in the Family Court proceedings and not at the address for service specified in the Demand; and that the documents stamped by the Family Court and containing that return date were not served until 20 December 2019, well outside the 21 day period specified in s 459G of the Act. 6. Turning now to a relatively small sample of the surprisingly large number of cases addressing this question, in Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 1181, Santow J dealt with the position where the return date of an application to set aside a creditor's statutory demand was omitted in the application to set aside that demand as served on the defendant. His Honour held that this was not service in accordance with s 459G(3)(b), observing (at [6]): "… how can the party who is served have received proper notice of the proceedings for which attendance is required within the twenty-one days when that party is not told of the important fact of the return date for the application to set aside the statutory demand [until] after the twenty-one days[?]" 1. In Australian Foods Company Pty Ltd v O'Donnell [2002] WASC 129, which bears a substantial similarity to this case, registry staff (there, of the Supreme Court of Western Australia and here of the Family Court) received documents for filing and indicated they would be made available to the applicant on a later date, and there also provided the applicant with documents containing the Court's stamp but not a return date, which the applicant served. Master Bredmeyer observed (at [3]) that the application to set aside the creditor's statutory demand must be dismissed because the applicant had failed to serve it within the 21 day period, although recognising that was caused by the registry staff. 2. In LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134, Holmes J found that an application to set aside a creditor's statutory demand had not been served within the 21 day period, where the unsealed copy of the application that was served did not contain a return date or file number. The same result was reached in Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2004] QSC 308; [2005] 1 Qd R 12, where the application as served did not contain an application number, the date on which the application would be heard, the seal of the Court or the signature of the Registrar. Chesterman J there observed (at [35]) that: "The authorities establish that the copy of the application served on the respondent must be such as to show that it is a replication of the application which has been filed in the court. To do that it must show the action number given it by the court and it must show the return date for the hearing of the application. It must, also, I think, show the seal of the court to indicate that there are curial proceedings on foot. The document in question did not exhibit those attributes. It was not therefore a copy of the application. The result is that the terms of s 459G(3) were not complied with and the application must be dismissed with costs." 1. In Opensoft Australia Pty Ltd v Miller Street Pty Ltd [2011] FCA 653, Jagot J held that the requirements of s 459G of the Act were not met where the documents that were served had not been filed and sealed and had no proceedings number. Jagot J there observed (at [31]) that: "[t]here is a long line of authority which stands for the proposition that the requirement of s 459G(3)(b) of the Corporations Act is for a copy of the application and supporting affidavit to be served as filed; or, otherwise put, that copies of the originating process and supporting affidavit as sealed by the court, bearing a proceeding number and a return date, are required to be served by the terms of s 459G(3)(b)." (emphasis added) 1. Her Honour also observed (at [41]–[42]) that: "The requirements of s 459G are clear. Section 459G(1) enables an application to be made to a court to set aside a statutory demand. An application is made to a court once it has been accepted by that court. Under s 459G(2), an application may only be made within the 21-day period specified. Section 459G(3) also specifies that an application is made in accordance with s 459G(1) only if within the same 21 days two things occur: namely, an affidavit supporting the application is filed with the court; and a copy of the application and of the supporting affidavit are served on the person who served the demand on the company. On the ordinary meaning of these provisions, it is difficult to see how the application and supporting affidavit can be other than the application as filed and the supporting affidavit as filed. As a matter of purpose, moreover, compliance with s 459G, as the authorities make clear, requires that the documents as served inform the recipient that the proceeding has in fact been commenced through acceptance by the court of the originating process. They must also inform the recipient of what Santow J described in Benonyx [Pty Ltd v Fetrona Pty Ltd above] as the "important fact" of the return date for the application. 1. AXL sought to distinguish that decision on the basis that the application to set aside the Demand was filed by AXL in existing proceedings and had that proceedings number. I accept that that is a distinguishing fact, although I noted above that AXL was not then party to the proceedings and would have required an exercise of discretion in its favour by the Family Court to be joined as party to them and heard in them. AXL also drew attention to the fact that the documents were served on the solicitor acting for Dr Slater in the Family Court proceedings who could have accessed the Family Court portal to check the status of the application and return date. It does not seem to me that that is sufficient to satisfy the requirements of that section, as the case law has consistently construed them. The application as served neither contained information as to the return date which the case law has treated as essential nor, importantly, was it a copy of the application that was in fact later filed in the Family Court proceedings. That document, which was later served outside the 21 day period, contained both the stamp of the Family Court and a return date, consistent with the requirements of the case law to which I have referred above. 2. Returning now to the case law, in Adhesive Pro Pty Ltd v Blackrock Supplies Pty Ltd [2015] ACTSC 288, the form of application served within the 21 day period included a return date inserted by the plaintiff's solicitor but no Court seal, Court stamp, proceeding number or other mark indicating that the documents had been accepted by the Court and that proceedings were on foot, and a sealed and stamped copy of the application and affidavits was subsequently served on the defendant outside that 21 day period. After an extensive review of the authorities, Mossop AsJ noted (by reference to the reasoning in Craneford Nominees Pty Ltd v VGC Co-operative Ltd (2012) 262 FLR 283) that, in order to be a copy of the application as filed, a document must bear some evidence that it has been accepted by the Court and held that the plaintiff had not served a "copy" of the application and affidavit within the meaning of s 459G(3) of the Act. It seems to me that, here, the nature of the evidence necessary to establish that AXL's application and supporting affidavit was accepted by the Family Court is to be determined by reference at least to the steps to be taken by the Registrar, as specified in the Federal Court (Corporations) Rules 2000 (Cth) that apply to corporations proceedings in the Family Court to which I refer below. 3. The observations of Jagot J in Opensoft Australia Pty Ltd v Miller Street Pty Ltd above were in turn quoted, with apparent approval, by McKerracher J in PCM Nominees (WA) Pty Ltd v ACN 063 291 430 Pty Ltd [2017] FCA 848, to which Mr Scheelings refers. In that case, an application to set aside a creditor's statutory demand and supporting affidavit was electronically filed within time, and copies of that application and supporting affidavit were served by email, but in a form that omitted the seal of the Court, the proceeding number and return date. It seems to me that I should follow the case law noted above, and particularly the decisions in OpensSoft Australia Pty Ltd v Miller Street Pty Ltd and PCM Nominees (WA) Pty Ltd above, where (as I will note below) the Federal Court (Corporations) Rules apply to corporations matters in the Family Court. 4. AXL fairly accepted that the application to set aside the Demand and the affidavit that was served on 6 December 2018 did not in fact bear the seal of the Family Court nor the return date of the application, and referred to Mr Costigan's evidence explaining the procedure that was in fact adopted by the Family Court to which I referred above. It seems to me that, regrettably, that procedure was not consistent with the rules applicable to the conduct of corporations proceedings in that Court. Rule 25.02 of the Family Law Rules applies the Federal Court (Corporations) Rules to corporations matters in the Family Court. 5. Rule 2.3 of the Federal Court (Corporations) Rules, as applied to such proceedings in the Family Court, requires that, on receiving an originating process or interlocutory process, the Registrar must fix a time, date and place for hearing and endorse those details on the originating process or interlocutory process and may seal a sufficient number of copies for service and proof of service. I read that rule as requiring those steps to be taken promptly, or at least within a reasonable time, which would have had been short by reason of the time limit specified in s 459G of the Act. Had the Family Court Registry taken the steps contemplated by r 2.3 of the Corporations Rules, either promptly or within a reasonable time in the circumstances, it would have fixed a return date for the application to set aside the Demand and sealed the application and affidavit in support in sufficient time for them to be served by AXL in accordance with the requirements of s 459G of the Act. If the Family Court does not take that course, then there will be a risk that parties, such as AXL, which choose to bring applications to set aside creditor's statutory demands in that Court will be unable to comply with the requirements of s 459G of the Act and that such applications would then have to be dismissed. 6. Mr Sperber also submitted that it cannot be the legislative intention that a party seeking to set aside a creditor's statutory demand under s 459G of the Act is required to serve sealed versions of the applications, showing a return date, where the Family Court's processes would have absorbed the majority of the 21 day period allocated for bringing and serving such an application. It seems to me that the case law does establish that requirement and the rules applicable to the conduct of corporations proceedings in the Family Court would allow compliance with that requirement, although that did not occur here. I am not persuaded that section does not apply in the manner recognised in the case law in these circumstances. 7. AXL contends that service of the Demand on the solicitors acting for Dr Slater in the Family Court proceedings was sufficient service for the purposes of s 459G(3)(b) of the Act. ASIC advanced the contrary submission that service within 21 days of a creditor's statutory demand must constitute service on the person who serves that demand on the Company (relevantly, Dr Slater) or otherwise on his or her nominated agent as set out in paragraph 6 of prescribed Form 509H. Several authorities recognise that service at the address for service stated in a creditor's statutory demand will be valid service of an application to set aside that demand: for example, Newsnet Pty Ltd v Patching [2011] NSWSC 690. It does not, of course, follow that service at that address is the only valid means of service of such an application. As Mr Sperber pointed out, there is authority that service under s 459G(3)(b) is not limited to the address nominated in paragraph 6 of Form 509H and that at least service in a manner contemplated by the Corporations Act would be capable of complying with that requirement: Vicbar Pty Ltd v Development Constructions (Newcastle) Pty Ltd (1995) 13 ACLC 1220 at 1223. I am not persuaded, as ASIC submitted, that that decision should be given lesser weight where it was determined prior to the introduction of the Corporations Act. That does not assist AXL here whether the documents that were served did not meet the requirements of s 459G of the Act. It is not necessary to determine this question for that reason. 8. AXL also submits that, on 19 December 2018, two weeks after the application to set aside the Demand was filed, Mr Costigan received the stamped version of that application and the affidavit in support from the Family Court Registry, recording allocation of a return date of 20 February 2019, and then provided a copy of the sealed application to the solicitors acting for Dr Slater in respect of the Demand and to the solicitors acting for Dr Slater in the Family Court proceedings, on the next day, 20 December 2018. That does not assist AXL where the time for service of an application to set aside the Demand and supporting affidavit had by then expired. Mr Scheelings submits, and I accept that, by the time Dr Slater's winding up application was filed on 21 December 2018, the 21 day period for compliance with the Demand had long expired on 11 December 2018, and that winding up application was properly based on AXL's failure to comply with the Demand within that period. 9. For completeness, I note that AXL's opening outline of submissions also referred to a suggested defect in the form of the Demand. It is not necessary to address that matter, which might have been raised in an application to set aside the Demand, had it been brought within time; by leave, in an application under s 459S of the Corporations Act, in opposition to the winding up application, had such leave been sought; or, had the winding up application not been resolved between the parties, in support of a contention that the Court should have exercised its discretion not to wind up AXL in the relevant circumstances. AXL's opening submissions also referred to allegations of abuse of process made in correspondence, which it is also not necessary to address. 10. It may be that, as in other similar cases, this result is an unfortunate one, since a delay by staff within the Registry of the Family Court in providing properly sealed and stamped copies of the application and affidavit in support at least contributed to the result that AXL did not serve its application to set aside the Demand within time. However, AXL could, with leave, have raised the matters which would have been raised in an application to set aside the Demand in opposition to a winding up application, under s 459S of the Act, and the Court could also have taken those matters into account in the exercise of a discretion whether to make a winding up order, had the matter not been resolved between the parties. In the result, AXL was not wound up, but a winding up application was validly brought and the register maintained by ASIC records that fact. There is no injustice to AXL in that fact being recorded in ASIC's records and the public would arguably be misled if it were not so recorded. Outcome and orders 1. For these reasons, the separate question should be answered by finding that a copy of the application to set aside the Demand and a copy of the supporting affidavit was not served on Dr Slater, the person who served the Demand, within 21 days of the date of the Demand. The Interlocutory Application filed by AXL on 11 February 2019 should be dismissed in consequence, because the winding up application was properly brought and no basis for removing it from ASIC's records could be established. My preliminary view is that AXL should pay ASIC's costs of the application on an indemnity basis, where this result was the predictable consequence of the application of well-established case law, which should have been apparent to AXL and its advisers before its application was brought. However, I will hear the parties if they contend for a contrary result. 2. The parties should bring in agreed short minutes of order to give effect to this judgment, including as to costs, within 14 days or, if there is no agreement between them, their respective short minutes of order and short submissions as to any differences between them. ********** 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: 14 July 2019