By Jeffrey Brown, a Principal of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.
The Supreme Court has today handed down a Judgment that reinforces an established principle about the meaning of the term “within 21 days” in Section 459G(2) of the Corporations Act.
If a company is served with a Creditor’s Statutory Demand, it must, if it wishes to resist the Demand, file an Application with a Court within 21 days. This timeframe cannot be extended, even if both parties agree to do so.
But do you count the day that the company was served with the Demand as day 1 of that 21 day period?
That question was of central importance in Verimark Pty Ltd -v- Passiontree VelvetPty Ltd  NSW SC 455 (26 April 2019). If the day of service is to be counted as Day 1 then, the parties agreed, Verimark was out of time to file its Application.
Her Honour Ward CJ in Eq. reviewed the caselaw thoroughly and concluded that the 21 day period begins the day after the Demand is served, and therefore Verimark’s Application was within time. This decision accords with a strong line of case law authority supporting that view.
The case serves as a timely (no pun intended!) reminder of the need to pay due respect to time limits in legislation and Court rules.
At Matthews Folbigg Lawyers, we have seen many instances of parties who have been tricked up by miscalculating or misunderstanding the time limits on filing of Court documents. The difficulty is compounded when you consider issues such as counting public holidays and weekends. Depending on the Court in question, and the type of proceedings, the answer is not always the same.
At Matthews Folbigg Lawyers, our litigation practitioners can help you ensure that all relevant timeframes are properly calculated and met and that action that you may need to take to recover a debt or enforce your rights are done within time.
If you would like more information or advice in relation to insolvency, restructuring or debt recovery law, contact a Principal of the Matthews Folbigg Insolvency, Restructuring & Debt Recovery Group:
Jeffrey Brown on (02) 9806 7446 or firstname.lastname@example.org
Stephen Mullette on (02) 9806 7459 or email@example.com