The Importance of Timing and Effective Service of a Creditor’s Statutory Demand

Case: Re Ulrich Pty Ltd [2026] NSWSC 381  

Key takeaways 

In dismissing Commonwealth Bank of Australia’s (CBA) winding up application against Ulrich Pty Ltd (Ulrich), the Court confirmed and re-stated that:

1. service of a statutory demand at a company's ASIC-registered address is effective under s 109X, even if the company has vacated the premises; and
2. s 459S of the Corporations Act 2001 (Cth) (the Act) does not preclude a company from arguing in winding up proceedings that service occurred at an earlier date than that alleged by the plaintiff, where that argument could not have been raised as a ground for setting aside the demand.

Brief facts

Relying on a presumption of insolvency pursuant to s 459C of the Act, CBA sought an order that Ulrich be wound up in insolvency pursuant to s 459A.  

CBA served a statutory demand for payment of $1,012,305.50 dated 5 February 2025 on Ulrich. CBA contended that service was ’attempted’ on 6 February 2025 by leaving documents at Ulrich's registered office but it was ’effected’ on 14 February 2025 by email to the sole director, Mr Sarai. 

The evidence was that a process server left the demand under the front door of the registered office premises on 6 February 2025. However, the property had been sold in March 2024 and Mr Sarai did not become aware of the demand until it was emailed to him on 14 February 2025.  

As at 6 February 2025 Ulrich had not lodged any notice of change of address of its registered office with ASIC following the sale of the registered office premises the year before. Ulrich filed an application to set aside the demand on 7 March 2025, on the basis that service occurred on 14 February 2025. Ulrich subsequently paid CBA $736,711.68 on 29 May 2025 and by consent discontinued its set aside application on 20 June 2025. 

CBA then commenced winding up proceedings on 19 September 2025 on the basis that Ulrich failed to comply with the demand on or before 27 June 2025 being within the seven days after discontinuance of its application to set-aside the demand application provided for by s 459F(2). 

Judgment 

Brereton J dismissed the winding up application on the following grounds:

1. His Honour accepted Ulrich's submission that it was not making any contention it could have made to set aside the statutory demand; on the contrary, it was embracing the demand, and its contention that service was effected on 6 February 2025 could not have been relied upon as a ground for setting aside the demand. Accordingly, s 459S of the Act did not preclude Ulrich from advancing that argument in the winding up proceedings.
2. The Court further held that the address for service contemplated by s 109X is the address shown as the registered address on ASIC's register. Under s 142(3) of the Act, any change in the location of the registered office will not take effect unless and until a notice of change of address is lodged with ASIC.  
3. Section 459C operates, relevantly, to the effect that a presumption of insolvency is available to found a winding up application if, during the three months prior to commencement of the proceedings, the debtor company had failed to comply with the demand. As Ulrich had not failed to comply with the demand within three months before 19 September 2025 (it failed to comply well before that date) there was no available presumption of insolvency and so the winding up application failed.

Implications

The rules that govern service of documents on companies are clear and unambiguous. Those rules most often operate to the detriment of the company because it can be properly served even if a document does not come to the attention of the company’s guiding mind. In this case, however, the service rules operated to the benefit of the company allowing it, at least temporarily, to avoid a hearing in the Corporations List on whether it should be wound up.