CORPORATIONS — statutory demand — plaintiff brought three applications under s 459G of the Corporations Act 2001 (Cth) for orders setting aside statutory demands issued by the respective defendants — where defendants had invested in a fund managed by plaintiff — where plaintiff and defendants entered into a settlement deed — where settlement deed provided for plaintiff to make redemption payments to defendants in specified amounts by specified dates — where plaintiff failed to make payments in accordance with settlement deed — where defendants issued statutory demands claiming payments due to each of them under settlement deed — where plaintiff claimed that defendants were estopped from suing on the settlement deed or had waived their right to insist on compliance with the payment obligations in the deed — whether there existed a genuine dispute in relation to the debts claimed
CORPORATIONS — service of application to set aside statutory demand under s 459G of the Corporations Act 2001 (Cth) — where statutory demand served by one set of defendants specified the interstate office and email address of the defendants’ solicitor as the address for service — where plaintiff’s solicitor purported to serve s 459G application and supporting affidavit by emailing documents to defendants’ solicitor on the last day of the 21-day statutory period — whether email constituted effect service of statutory demand — whether ss 110C-110D of the Corporations Act 2001 (Cth) applied to service of applications under s 459G of the Corporations Act 2001 (Cth) in place of s 15 of the Service and Execution of Process Act 1992 (Cth)
CORPORATIONS — where statutory demand issued by one set of defendants failed to comply with the requirements of Form 509H by reason of specifying an interstate address for service — where plaintiff sought declaration that statutory demand was null and void — whether Court should grant declaratory relief — whether plaintiff suffered substantial injustice due to defect
Quick Take
1Sections 110C-110D of the Corporations Act 2001 (Cth), which permit technology-neutral service of documents including by email, do not override the mandatory requirements of ss 9 and 15(3) of the Service and Execution of Process Act 1992 (Cth) for interstate service of initiating process on a company; the facultative general provision is construed as subject to the earlier mandatory specific provision, consistently with Riverina Solar.
2A representation made before a settlement deed is executed — that no legal action would be taken 'in relation to Fund redemptions' — does not give rise to a plausible estoppel defence to enforcement of the subsequently executed deed, particularly where the deed contains entire agreement, paramountcy and written-waiver-only clauses, and the representor lacked actual or ostensible authority to bind the other parties to the deed.
3A creditor's willingness to consider an amended payment schedule, coupled with repeated warnings that legal enforcement would follow if no agreed plan materialised, does not constitute the deliberate, intentional and unequivocal abandonment of the right to enforce the original contractual payment obligations, and does not give rise to a genuine dispute on waiver grounds.
