When is the deadline for application to set aside a statutory demand?
The catalogue records a 21 days period from Service of the statutory demand on the company. This draft page remains free only until its source, worked example and limits are reviewed.
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Calculation basis and source
- Period
- 21 days
- Trigger
- Service of the statutory demand on the company
- Counting
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- Rollovers and holidays
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- NONE. This period is expressly non-extendable. The words 'may only be made within the statutory period' are a condition on the existence of the jurisdiction, not a procedural time limit, and the Court has no power to extend it or to cure late filing or late service (David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265). Do not offer or compute an extension.
- THE MOST UNFORGIVING DEADLINE IN AUSTRALIAN CORPORATE LITIGATION. All three things must happen within the 21 days: the application must be made, the supporting affidavit must be FILED, and both must be SERVED on the person who served the demand. Note the drafting change: s 459G(2) no longer says '21 days' expressly but refers to the 'statutory period', which s 9 defines as 21 days unless a longer period is prescribed by regulation - the engine must check for any prescribed period before relying on 21 days. Because the period is fixed by an Act, FCR r 1.61 does not apply: counting is under Acts Interpretation Act 1901 (Cth) s 36 and there is NO 24 December to 14 January exclusion, and no Federal Court (Corporations) Rules r 1.9(4) 25 December to 1 January exclusion either, since r 1.9 applies only to periods prescribed by those Rules. Consequence of failure: under s 459F the company is taken to fail to comply with the demand at the end of the compliance period, founding a presumption of insolvency.