In the matter of Bioaction Pty Ltd

Bioaction Pty Ltd, a company engaged in the design, manufacture, and installation of systems for mitigating hazardous gases, was the subject of a statutory demand served by Mr. Ogborne, its former Chief Financial Officer/Chief Operating Officer. The dispute centered on Mr. Ogborne's entitlements following his redundancy in November 2021. Mr. Ogborne sought payment of $240,688.31, which he claimed was due as unpaid salary, superannuation, and other entitlements. The statutory demand was served on Bioaction on 13 January 2022, with a statutory period of 21 days for Bioaction to apply to set it aside.

The primary legal issue before the court was whether the application to set aside the statutory demand and the accompanying affidavit were served within the 21-day statutory period specified by section 459G of the Corporations Act 2001 (Cth). The crux of the matter hinged on the timing and method of service of the originating documents. Mr. Ogborne argued that the application was not served within the statutory period, while Bioaction contended that it was. Bioaction submitted that the documents were sent via email to the legal representatives of Mr. Ogborne on the last day of the statutory period and were received before the deadline.

The court considered whether the provisions of sections 600G, 105A, and 105B of the Corporations Act, along with the rebuttable presumptions in section 161 of the Evidence Act 1995 (Cth), applied to the case. Bioaction relied on expert evidence to prove the timing of receipt, while Mr. Ogborne did not challenge this evidence. The court concluded that the deeming provisions in sections 105A and 105B of the Corporations Act and the rebuttable presumptions in section 161 of the Evidence Act were applicable. Given that the originating documents were sent via email and were in a readable PDF format, the court determined that the application to set aside the statutory demand and the supporting affidavit were indeed served within the statutory period.

The court answered the separate question posed under rule 30.01 of the Federal Court Rules 2011 (Cth) in the affirmative, stating that the application and affidavit were filed and served within the 21-day statutory period. The court ordered that Bioaction pay the plaintiff's costs of the hearing of the separate question and listed the originating application for case management before a Registrar of the Federal Court. The parties were granted leave to apply to the Registrar as necessary.