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In a Daze about Days – counting the time limit for filing an Application to set aside a Creditor’s Statutory Demand

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 [2019] 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.
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