Chen v The College of Building Ltd

Chen commenced proceedings against The College of Building Ltd (the defendant) by issuing a statutory demand under the Corporations Act 2001. The defendant sought to set aside the demand on the basis that it had not been properly served. The registrar of the Federal Circuit Court set aside the demand and ordered the plaintiff to pay the defendant’s costs. The plaintiff appealed the registrar’s decision to the Federal Circuit Court, which was dismissed. The plaintiff now appeals to the Full Court of the Federal Court. The primary issue for the court was whether the statutory demand was served in accordance with the law. A further issue was whether the registrar was correct to admit and rely on further evidence that was not before the primary judge. The court held that the statutory demand was not served in accordance with the law as it was not delivered to the defendant’s registered office within the time required by the Act. The presumption of service in the ordinary course of post was not available as the item was not properly addressed to the defendant’s registered office. The presumption of delivery by the fourth business day was also not available given the evidence of later delivery. The court held that the registrar was correct to admit and rely on further evidence as it was relevant to the question of service and was not hearsay. The appeal was dismissed, the statutory demand was set aside and the costs orders made by the registrar were confirmed. The parties have until 4 March 2015 to file and serve written submissions about the costs of the appeal.