In a recent matter before the Supreme Court in Victoria a Creditors Statutory Demand has been set aside by the Court on the basis that the demand was incorrectly addressed.
By way of background the Plaintiff, Mills Oakley, commenced proceedings against the Defendant, Assets HQ Australia, in the District Court in NSW and obtained a Judgment in October 2018. A Statutory Demand was issued in respect of the debt for $158,905.67 which remained unpaid. Pursuant to s459C(2)(a) of the Corporations Act a company is presumed to be insolvent if it has failed to satisfy a Statutory Demand within 21 days of service being effected.
In the proceedings Mills Oakley v Asset HQ Australia Pty Ltd [2019] VSC 98, the Plaintiff relied on non-payment as a presumption of insolvency and commenced wind-up proceedings in the Supreme Court however Solicitors for Asset HQ Australia argued that there was insufficient evidence of the Statutory Demand being served. The basis of this argument focused around:
the registered companies address being noted as "Pacific Way" rather than "Pacific Highway" on the Demand;
the company claiming to have never received the Demand; and
the Plaintiff being able to prove that service was affected by Australia Post.
In the decision handed down it was determined by the Court that as there was insufficient evidence of service being effected. The Court was not satisfied that the Demand was served at the Registered Office of Asset HQ Australia and noted in the Judgment:
the Demand was not addressed exactly as it appeared in an ASIC search;
the claims by the Plaintiff that there was no "material difference" or "practical difference" between "Way" and "Highway" was not to the point. "Way" was not the Registered Office of the Defendant; and
the fact that the envelope was not "returned to sender" is insufficient evidence of the Demand having been served.
Judicial Registrar Matthews who heard the matter has indicated he will hear from the parties as to future progress of the matter and Costs.
