Statutory Demand Fails Due to Typo


A recent case in the Supreme Court of Victoria found a typo in a postal address was responsible for incorrectly serving a statutory demand. The consequences of this was a failed winding up application, meaning the statutory presumption of insolvency could not arise. This case shows the implications typos can have in influencing the success of court proceedings.

The case

The recent decision in Mills Oakley (a partnership) v Asset HQ Australia Pty Ltd [2019] VSC 98 saw Mills Oakley unsuccessfully submit a winding up application against Asset HQ. Mills Oakley claimed that they served the application by post to the company’s registered office. However, the law clerk employed by the plaintiff wrote the company’s registered address incorrectly on the envelope containing the statutory demand. The address read: “Pacific Way” instead of Pacific Highway.”

The company disputed the fact they received the statutory demand, presenting evidence their mailroom never encountered the envelope. They further argued Mills Oakley failed to comply with the requirements of service because the demand had not been posted to its registered office and the plaintiff could not rely on the presumption of service because the envelope was addressed incorrectly.

Mills Oakley disputed this, arguing the typo was immaterial and the letter still would have been received as “Pacific Highway” was the only street in the postcode with the word “Pacific” in it. Further, Australia post stated if the address could not be found, the letter would have been redelivered to the sender. Mills Oakley provided evidence this did not happen.

The decision

The judge declared Mills Oakley could not rely on the assumption of service as the statutory demand had not been delivered to the registered office because it was incorrectly addressed. The judge argued the material difference between the wording of ‘Pacific Way’ and ‘Pacific Highway’ was irrelevant, as ‘Way’ was not the registered office. Due to the fact, the judge determined the statutory demand had not been correctly served on the company, the statutory presumption of insolvency could not arise.

What can we learn from this?

This case shows even a minor error, which may seem insignificant, can affect an entire proceeding. Typos in the court room can both slow down and impact the entire legal process. If you require help serving a party or submitting legal documents for a court proceeding, it is best you consult a lawyer.

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