Why wait 21 days?

If you issue a statutory demand on a company, it is generally advisable to wait the 21 day time period before applying to wind-up a company.

But what if you don’t?

This is what happened, due to a miscalculation by a solicitor, in the recent case of Re DG Haulage Pty Ltd [2017] VSC 780.

This meant that the petitioning creditor (“PC”) may not have been able to rely upon the presumption of insolvency (s459C).

In deciding that the PC could still rely upon the presumption, Hetyey JR balanced the competing views between:

– the 6 favourable cases of Pinn, Missing Link, Equiticorp, Simpson and #PlutusPayroll

– against the two unfavourable cases of Woodgate and Surdex.

Hetyey JR held that as long as the statutory demand had expired unsatisfied by the time of the wind-up hearing, the presumptions could apply. 

In commenting that the 6 favourable cases were not plainly wrong, Hetyey JR had regard to the requirement for uniformity in decision making (Farah Constructions HCA).

Hopefully the same uniformity can be said for #Killarnee and #Amerind, when those cases are handed down later this year.


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