Importance of Accuracy and Timing in Commercial Litigation
By Tom Lynch
The importance of accuracy and following proper court procedure was recently discussed in the Federal Court case of Opensoft Pty Limited v Miller Street Pty Limited.
Miller Street Pty Iimited (“Miller”) had served a creditors statutory demand (the “statutory demand”) on Opensoft Pty Ltd (“Opensoft”) which sought to initiate winding up proceedings against Opensoft if they did not pay to Miller a debt owed following work performed by Miller for Opensoft.
The Corporations Act allows a company who has been served with a statutory demand to apply to the court to have the statutory demand set aside however, the application to set aside must be made to the court and served on the party which issued the statutory demand within 21 days of the statutory demand being received.
Opensoft, in seeking to have the statutory demand set aside were late in filing the application to set aside with the court and, as a last resort filed the application with the court via electronic filing and then served a copy of the application on Miller, via email, without a court number or court seal attached to the documents they were serving. Section 109X of the Corporations Act prescribes a number of ways in which a company can be served with documents in the course of legal proceedings. The court in this case found that although service via email is not a prescribed method of service, the list of methods referred to in section 109X is not exhaustive and the court has the power to authorise different methods of service.
Regardless, Miller subsequently claimed they did not receive the e-mail on the day it was sent (the last day for service according to the Corporations Act).
The Federal Court held that as the documents served did not reach Miller on the final day for service allowed by the Corporations Act, the application to set aside the statutory demand could not be recognised by the court and the application was dismissed, with costs awarded to Miller.
Lesson: It is imperative that when involved in commercial litigation proceedings that you and your legal representatives are properly prepared and fully aware of all impending deadlines as the consequences of missing a date, or making an error can be potentially disastrous for your case.
For further information or assistance with a commercial litigation query, please contact Craig Painter.
p. 02 6206 1300
