By Chloe Howard of Matthews Folbigg Lawyers, a lawyer in our Insolvency, Restructuring and Debt Recovery Group
A recent Supreme Court matter has determined that service of an application to set aside a statutory demand was validly served in time, even though the solicitor in question did not open the email serving the application until the expiration date for service had passed.
In March 2019, the plaintiff’s solicitor and the defendant’s solicitor commenced communicating in an attempt to facilitate a resolution of the dispute between their respective clients. The communications predominantly took place by email.
On 11 September 2019, the defendant issued on the plaintiff a statutory demand. The statutory demand was served on the plaintiff initially by email from the defendant’s solicitor.
On 27 September 2019, the defendant’s solicitor sent an email to the plaintiff’s solicitor enclosing a letter which advised that they held instructions to accept any application to set aside the statutory demand.
Following receipt of this letter, on 2 October 2019 the plaintiff’s solicitor sent the originating process to set aside the statutory demand and affidavit in support to the defendant’s solicitor by email. The defendant’s solicitor did not open the email until 4 October 2019.
The defendant sought to dismiss the plaintiff’s application to set aside the statutory demand on the basis that the originating application had been served more than 21 days after service of the statutory demand. The defendant’s solicitor provided evidence by affidavit that during the week of 30 September 2019 to 4 October 2019 he had been focused on another matter and did not open emails that were unrelated to that specific matter. Even though the email attaching the application to set aside the statutory demand had arrived in his inbox in the 21-day period, he did not open the email until after that time period had passed.
Justice Rees held the following:
- It could be inferred that the defendant would accept service by email as it had itself served the statutory demand by email, and communications had predominately taken place via email.
- In reading the defendant solicitor’s affidavit, it was clear that he was regularly checking his emails to see what had arrived and what matter the emails related to.
- It could be inferred that he would have noticed an email arriving that related to statutory demand matter.
- The fact the solicitor was preoccupied with a different matter did not mean he could not see other emails arriving in his inbox.
- Choosing not to open an email did not mean that the email did not come to his notice.
Accordingly, Justice Rees dismissed the defendant’s application to set aside the plaintiff’s application to set aside the statutory demand.
The case can be read in full here.
If you would like more information or advice in relation to insolvency, restructuring or debt recovery law a Principal of the Matthews Folbigg Lawyers’ Insolvency, Restructuring & Debt Recovery Group:
Jeffrey Brown on (02) 9806 7446 or jeffreyb@matthewsfolbigg.com.au
Stephen Mullette on (02) 9806 7459 or stephenm@matthewsfolbigg.com.au.
