---
title: "Setting Aside a Statutory Demand in Queensland | Astris Law"
url: https://www.astrislaw.com/article/setting-aside-statutory-demand-queensland
description: "How a Queensland company applies to set aside a statutory demand: what to file and serve inside the 21 days, the grounds, which court hears it and the timing."
lang: en-AU
---

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Insights 5 November 2026 • 8 min read

# How a Queensland Company Applies to Set Aside a Statutory Demand

## Summary

A guide for the director of a Queensland company that has been served with a statutory demand and wants to know what applying to set it aside involves. It covers what has to be filed and served inside the statutory period, the grounds a court acts on, which court hears the application, what the court charges and the usual costs order, what happens to the demand while the application runs, the stages from service to hearing and the mistakes that lose applications.

Last reviewed 5 November 2026 · Reviewed by Jamie Nuich (https://www.astrislaw.com/attorney/jamie-nuich), Legal Practitioner Director

## Key Takeaways

- An application to set aside a statutory demand is made under s 459G of the Corporations Act 2001 (Cth) and is valid only if the application and a supporting affidavit are filed, and copies of both served on the creditor, within 21 days of service of the demand; the High Court has held the court has no power to extend that period.
- The affidavit filed inside the 21 days must set out the material facts behind the ground relied on, because the dispute it describes is the only dispute the court can later consider; a bare statement that the debt is disputed is not enough.
- The grounds are a genuine dispute about the existence or amount of the debt, an offsetting claim, a defect in the demand that would cause substantial injustice or some other reason. A genuine dispute means a plausible contention requiring investigation rather than a case the company has to win.
- The Supreme Court of Queensland and the Federal Court in Brisbane both hear these applications; each sets its own filing fee, the corporation rate applies because the applicant is always a company and the losing party is ordinarily ordered to pay the other side's costs.
- Filing a compliant application moves the compliance period to 7 days after the application is finally determined, so a company that loses still has a short window to pay, secure or compound the debt before the presumption of insolvency arises.

Image: The Supreme Court of Queensland building in Brisbane, where applications to set aside a statutory demand are heard (https://www.astrislaw.com/images/articles/supreme-court-qld.jpg)

In This Article

1. 1. Why the 21 days cannot be extended
2. 2. What has to be filed and served inside the 21 days
3. 3. What grounds set a demand aside
4. 4. Which court hears it and what the court charges
5. 5. What happens to the demand while the application is on foot
6. 6. How long it takes from service to hearing
7. 7. The mistakes that lose applications
8. 8. What only your own documents can answer
9. 9. Frequently Asked Questions

A company served with a statutory demand has 21 days to apply under s 459G (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s459g.html) of the _Corporations Act 2001_ (Cth) (**Corporations Act**) to set it aside, and the application and supporting affidavit must be filed, and copies of both served on the creditor, inside those days. This guide from Astris Law in Brisbane is for a director deciding whether to make that application. What a demand is and how creditors use one is in our statutory demands guide (https://www.astrislaw.com/article/statutory-demands-corporations-act).

## Why the 21 days cannot be extended

The period, and what has to happen inside it, are fixed by s 459G(2) and (3).

> (2) An application may only be made within 21 days after the demand is so served.
>
> (3) An application is made in accordance with this section only if, within those 21 days:
>
> (a) an affidavit supporting the application is filed with the Court; and
>
> (b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.

In _David Grant & Co Pty Ltd v Westpac Banking Corporation_ (1995) 184 CLR 265 (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1995/43.html) the High Court held that "may only" fixes the court's jurisdiction, so the general power to extend time in s 1322 does not reach it. The days are calendar days, the day of service is not counted (s 105 (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s105.html) of the Corporations Act and s 36 (https://classic.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s36.html) of the _Acts Interpretation Act 1901_ (Cth)) and weekends and public holidays inside the period count. Consent and negotiations do not stop the clock.

## What has to be filed and served inside the 21 days

The application is an originating application in Form 2 under r 2.2 of the Corporations Rules in schedule 1A (https://www.legislation.qld.gov.au/view/whole/html/inforce/current/sl-1999-0111) of the _Uniform Civil Procedure Rules 1999_ (Qld), and the registry endorses the first hearing date on it at filing.

The supporting affidavit carries the application. Under _Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund_ (1996) 70 FCR 452 (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1996/822.html) it must set out the material facts the company relies on for its ground and say something that promotes the company's case, and it marks out the area of controversy when day 21 ends. Further evidence within that area can follow, but a new ground cannot.

Service is on the person who served the demand. The safe course is personal service or, for a corporate creditor, leaving the documents at or posting them to its registered office under s 109X (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s109x.html). Email on its own is not a safe method unless the creditor or its solicitors have confirmed in writing that they will accept service that way. _In the matter of Riverina Solar Pty Ltd_ [2024] NSWSC 480 (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2024/480.html) shows the cost of getting this wrong. Documents emailed to an interstate creditor's solicitors late on day 21, without the steps the _Service and Execution of Process Act 1992_ (Cth) requires for interstate service, were held not to have been served in time and the application failed. Rule 2.4A of the same Corporations Rules also requires an Australian Securities and Investments Commission (**ASIC**) search of the company itself, no earlier than 7 days before filing and no later than the day before the hearing.

## What grounds set a demand aside

Section 459H (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s459h.html) gives two grounds. The first is a genuine dispute about the existence or amount of the debt; the second is an offsetting claim, meaning a genuine counterclaim, set-off or cross-demand. _Eyota Pty Ltd v Hanave Pty Ltd_ (1994) 12 ACSR 785 fixed the test as a plausible contention requiring investigation; the court does not decide who is right about the debt. If the substantiated amount is below the statutory minimum of $4,000 the demand must be set aside; otherwise the court may vary it, and the demand then stands as varied, as in _Equititrust Ltd v Willaire Pty Ltd_ [2012] QSC 3 (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2012/3.html).

Section 459J (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s459j.html) adds two more: a defect that would cause substantial injustice unless the demand is set aside and some other reason why it should be. It also says a demand is not to be set aside merely because of a defect. Whether your own disagreement clears that bar is answered on your contract, invoices and correspondence as much as on the law, and it is where this guide hands over to advice on the file.

## Which court hears it and what the court charges

The Supreme Court of Queensland and the Federal Court both hear these applications in Brisbane. In the Supreme Court a judge hears the application in the Trial Division applications list under Practice Direction 12 of 2022 (https://www.courts.qld.gov.au/__data/assets/pdf_file/0006/723039/sc-pd-12-of-2022.pdf) (as amended); in the Federal Court the application goes into the Queensland Corporations List (https://www.fedcourt.gov.au/law-and-practice/practice-documents/notice-to-profession/corporations-list), which sits weekly.

The applicant is always a company, so the corporation rate applies. The Supreme Court filing fee for a corporation's originating application under the Corporations Act is set by schedule 1 of the _Uniform Civil Procedure (Fees) Regulation 2019_ (https://www.legislation.qld.gov.au/view/whole/html/inforce/2026-07-01/sl-2019-0168) (Qld) and the current figure is on our Supreme Court filing fees (https://www.astrislaw.com/article/queensland-supreme-court-filing-fees) page. The Federal Court sets its own filing fee, with a higher rate for a corporate applicant, and publishes the current figure on its fees page (https://www.fedcourt.gov.au/forms-and-fees/court-fees/fees).

Costs ordinarily follow the event, so the losing side usually pays the other's costs on the standard basis. Indemnity costs have been ordered in both directions, against a creditor who pressed a demand after being warned of an obvious dispute and against a company that persisted with an application after being told it had no sustainable ground.

## What happens to the demand while the application is on foot

Filing in time changes the compliance period. Under s 459F(2) (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s459f.html) it ends 7 days after the application is finally determined or otherwise disposed of, unless the court orders a later date. If the application fails the company has 7 days to pay, secure or compound the debt before the presumption of insolvency arises, and _Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd_ (2008) 232 CLR 314 (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2008/9.html) holds that an extension can be ordered only while the period is still running.

## How long it takes from service to hearing

1. Inside the 21 days the demand is checked for defects, the dispute is assembled on the documents, the affidavit is sworn and the application is filed and served.
2. The registry sets the first return date, by which the creditor files a notice of appearance and any affidavit, and the court usually gives directions on that day.
3. The hearing is on affidavit evidence, on a date fixed at the directions.
4. If the demand is set aside the creditor must sue for the debt in the ordinary way; if the application fails, the 7 days under s 459F(2) run.

## The mistakes that lose applications

- Filing on day 22, or on day 21 after 4:30pm, since the Supreme Court's online lodgment dates a late or closed-day receipt as filed on the next day the registry is open. Where day 21 itself falls on a weekend or a public holiday, do not assume the period rolls to the next business day: whether the Commonwealth rule on last days applies to this period is a question to settle with advice before the weekend, not after it.
- An affidavit that annexes the demand and says the debt is disputed, because after day 21 no later affidavit can supply what the first one left out.
- Filing without serving, or serving by an email the creditor never agreed to accept; filing alone is not compliance with s 459G(3).
- Treating a disputed debt as a reason to ignore the demand. Once it expires the company is presumed insolvent under s 459C(2) (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s459c.html), the creditor can apply to wind it up (https://www.astrislaw.com/situation/winding-up-application) and at that hearing the company cannot, without leave under s 459S (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s459s.html), argue a ground it could have raised in a set-aside application.

## What only your own documents can answer

No guide can say whether the disagreement in your file is a genuine dispute or a grievance, whether a cross-claim is an offsetting claim or whether an error in the demand causes substantial injustice. The same demand can call for an application from one company and a payment arrangement from another. Telling which from the paperwork is advice rather than information, and it is advice worth taking early.

If a demand has arrived, the first useful step is a conversation about the contract, the invoices and the correspondence that sit behind it. Jamie Nuich takes that call on (07) 3519 5616 (+61735195616). First-day options are on our page for a company that has just received a statutory demand (https://www.astrislaw.com/situation/statutory-demand), and the stage before one is in our letter of demand in Queensland (https://www.astrislaw.com/article/letter-of-demand-queensland) guide.

## Frequently Asked Questions

### Can the 21 days to set aside a statutory demand be extended?

No. The High Court held in _David Grant & Co Pty Ltd v Westpac Banking Corporation_ (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1995/43.html) that the court has no power to extend the period in s 459G, whatever the parties agree.

### Does filing the application stop the statutory demand?

It moves the compliance deadline rather than cancelling the demand. Under s 459F(2) the period ends 7 days after the application is finally determined, or later if the court so orders.

### What is the court filing fee for the application?

In the Supreme Court the fee for a corporation's Corporations Act originating application is set by schedule 1 of the _Uniform Civil Procedure (Fees) Regulation 2019_ (Qld), and the current figure is on our Supreme Court filing fees (https://www.astrislaw.com/article/queensland-supreme-court-filing-fees) page; the Federal Court publishes its own. The losing party is usually ordered to pay the other side's costs.

## Sources and References

- Legislation Corporations Act 2001 (Cth), s 459G (application to set aside statutory demand) (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s459g.html)
- Legislation Corporations Act 2001 (Cth), s 459H (genuine dispute and offsetting claim) and s 459J (defect and other reason) (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s459h.html)
- Legislation Corporations Act 2001 (Cth), s 459F (period for compliance where an application is made), s 459C (presumption of insolvency) and s 459S (leave to oppose a winding-up application on a ground available under s 459G) (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s459f.html)
- Legislation Corporations Act 2001 (Cth), s 105 (calculation of time) and s 109X (service of documents on a company) (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s109x.html)
- Legislation Acts Interpretation Act 1901 (Cth), s 36 (calculating time) (https://classic.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s36.html)
- Legislation Corporations Amendment (Statutory Minimum) Regulations 2021 (Cth) (statutory minimum of $4,000 from 1 July 2021) (https://www.legislation.gov.au/F2021L00660/latest/text)
- Court rules Uniform Civil Procedure Rules 1999 (Qld), sch 1A (rules for proceedings under the Corporations Act), rr 2.2 and 2.4A (https://www.legislation.qld.gov.au/view/whole/html/inforce/current/sl-1999-0111)
- Legislation Uniform Civil Procedure (Fees) Regulation 2019 (Qld), sch 1 (filing fees) (https://www.legislation.qld.gov.au/view/whole/html/inforce/2026-07-01/sl-2019-0168)
- Other Queensland Courts, Supreme Court fees (https://www.courts.qld.gov.au/going-to-court/court-resources/fees/fees-in-the-courts/supreme-court-fees)
- Court rules Supreme Court of Queensland, Practice Direction 12 of 2022, Applications (as amended) (https://www.courts.qld.gov.au/__data/assets/pdf_file/0006/723039/sc-pd-12-of-2022.pdf)
- Court rules Queensland Courts, Form 2 originating application (Corporations Act) (https://www.courts.qld.gov.au/__data/assets/word_doc/0009/87876/ca-f-2-originating-application.doc)
- Court rules Federal Court of Australia, Notice to the Profession, Corporations List (Queensland) (https://www.fedcourt.gov.au/law-and-practice/practice-documents/notice-to-profession/corporations-list)
- Court rules Federal Court of Australia, Corporations Information Sheet 1 (https://www.fedcourt.gov.au/law-and-practice/guides/corporations-guides/information-sheet-1)
- Other Federal Court of Australia, court fees (https://www.fedcourt.gov.au/forms-and-fees/court-fees/fees)
- Case law David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1995/43.html)
- Case law Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1996/822.html)
- Case law Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
- Case law Equititrust Ltd v Willaire Pty Ltd [2012] QSC 3 (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2012/3.html)
- Case law Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2008) 232 CLR 314 (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2008/9.html)
- Case law In the matter of Riverina Solar Pty Ltd [2024] NSWSC 480 (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2024/480.html)

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Related Practice Area

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## Served with a statutory demand?

The application has to be filed and served inside 21 days, and the affidavit that goes with it has to carry the whole dispute. Jamie Nuich reads the demand against the contract and the correspondence with the creditor before the application is drawn.

(07) 3519 5616: +61735195616
Send an enquiry: https://www.astrislaw.com/contact

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