Chief Commissioner of State Revenue v Boss Constructions (NSW) Pty Ltd (No 2)

The Chief Commissioner of State Revenue (the appellant) sought to appeal a decision of the primary judge concerning an application by Boss Constructions (NSW) Pty Ltd (the respondent) to set aside a statutory demand. The core of the dispute revolved around whether the respondent had complied with the time limits prescribed by section 459G of the *Corporations Act 2001* (Cth) for serving its application to set aside the statutory demand. The appeal was heard by Bathurst CJ, Leeming JA, and Sackville AJA in the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal were whether the primary judge erred in finding that the respondent's application to set aside the statutory demand was validly served within the 21-day period stipulated by section 459G of the *Corporations Act 2001* (Cth), and consequently, whether the Court possessed jurisdiction to hear and determine the application to set aside the statutory demand. The appellant contended that the service of the originating process and supporting affidavit by the respondent occurred outside the statutory time limit.

The Court of Appeal reasoned that the plain language of section 459G(3) of the *Corporations Act 2001* (Cth) requires the application to set aside a statutory demand to be served on the creditor within 21 days after the applicant is served with the demand. The Court found that the evidence demonstrated that the respondent failed to serve the appellant within this prescribed period. Accordingly, the Court concluded that the primary judge lacked jurisdiction to entertain the respondent's application to set aside the statutory demand.

The Court of Appeal allowed the appeal, ordered that the separate questions be answered in the negative (that service was not effected within the 21-day period and the Court did not have jurisdiction), and dismissed the respondent's originating process filed in the Court below. The respondent was ordered to pay the appellant's costs of the proceedings in the Court below, while the appellant was ordered to pay the respondent's costs of the appeal.