Applications to set aside statutory demands do not need to be served by 4pm. Court finds they can be served up until midnight.
It is 3.55pm. You have just raced up George Street by foot to file your client’s application before the Registry closed at 4pm. It’s been a frantic few days preparing the Application and Affidavit within the 21 day timeframe. You realise that all your hard work means nothing unless the Application is served.
Take heart, there is more of the day left for you to effect service.
GENERALLY, court documents must be served by 4pm on the date that they are due. This is as a result of the operation of Rule 103 Uniform Civil Procedure Rules, which deems that documents served after 4pm have been served the next day.
However, as service of statutory demands is specifically dealt with under s 459G(3) Corporations Act, it was held in C & E Pty Ltd v Corrigan  QCA 047 that the 4pm deadline did not apply (at ). So service of a statutory demand between 4 and 5pm is fine.
And if you’re really behind schedule, there is authority that you can even serve an application to set aside a statutory demand after 5pm! Autumn Solar Installations Pty Ltd v Solar Magic Australia Pty Ltd  NSWSC 463 provides authority that such an application can be served anytime until midnight on the 21st day (per Barrett J at -). So for example, this means that an application in response to a demand served on 16 March would have to be served by midnight at the end of 6 April.
Remember, however, that a sealed copy still needs to be served. And in many cases, proof of service, for example on a principal place of business, will only be able to be achieved if you can get access to the business and sometimes access to the business can be difficult outside of office hours. For example, the lifts might close off at 5pm or 6pm. If the business has closed but you can still get to the front door, best practice suggests leaving it under the door, and taking a photograph of it in that position as well as photographs of the premises (e.g. sign on office door). These can later be used to seek to prove service, e.g. attached to an Affidavit of Service.
The decision in Autumn Solar was followed by the federal circuit court in Moon v JLG Industries (Australia)  FMCA 343 (16 May 2011), suggesting that it will remain the position, at least until considered by an appellate Court or the legislation is amended to provide certainty to practitioners.
To read the full judgment of C & E Pty Ltd v Corrigan  QCA 47, follow this link – http://archive.sclqld.org.au/qjudgment/2006/QCA06-047.pdf
And to read the full judgement of Autumn Solar Installations Pty Ltd v Solar Magic Australia Pty Ltd  NSWSC 463, follow this link – https://www.caselaw.nsw.gov.au/decision/54a004f53004262463c96cf6
To read, Federal Circuit Court judgment, follow this link – http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2011/343.html?context=1;query=Moon%20v%20JLG
Prepared by Janelle Payne, with the assistance of her research clerk, Georgie Bills
- Statutory demands
- Application to set aside statutory demands
- Corporations Act
- Time for service
- Service by 4pm or 5pm
- When does day end for purpose of service
- 21 days