Deadline started when creditor left papers at registered office, not when they reached staff
The High Court has thrown out a construction company's late challenge to a statutory demand, finding that service at its registered office started the clock.
The court handed down its decision in Future Sustainable Construction Ltd v 1st Piler Ltd [2026] NZHC 2871 on 21 September 2026. It also refused the company interim orders pending its challenge to an adjudicator's ruling.
Future Sustainable Construction Limited (FSC) was the main contractor on an Auckland residential development, where 1st Piler Limited (1st Piler) carried out earthworks. In July 2025, 1st Piler claimed $543,608.76 from FSC.
On 9 December 2025, an adjudicator under the Construction Contracts Act 2002 (the Construction Contracts Act) found that FSC had not responded with a payment schedule and was liable for the full amount.
On 19 December 2025, 1st Piler left a statutory demand at FSC's registered office. It reached a staff member married to FSC's sole director on 23 December. FSC applied to set the demand aside on 14 January 2026. The Companies Act 1993 (the Companies Act) required an application within 10 working days of service.
FSC argued that service occurred only when the demand reached the staff member. The court disagreed. It held that leaving the demand at the registered office or address for service was effective service and did not depend on delivery to any person. It found that FSC's change of address for service took effect on 22 December 2025, after 1st Piler served the demand. An exchange with 1st Piler's service agent requesting "email notice first" did not "come close to any agreement" to displace the statutory rules.
The court found that FSC had applied too late, which made its application "a nullity." The Companies Act allows no extension of time to apply, so the court could not hear it or extend the time to comply with the demand. The court also found that a debt resting on a payment claim that was not answered with a payment schedule left no dispute to argue.
FSC sought the interim orders while it pursued judicial review of the adjudicator's decision, arguing that liquidation would defeat that review. The court held that the orders were not reasonably necessary because FSC could seek a stay of any liquidation proceedings. Under s. 60 of the Construction Contracts Act, an adjudicator's determination remains binding even when a party seeks judicial review. The court said that disregarding the determination pending review would improve FSC's position rather than preserve it.
The court dismissed both applications and reserved costs if the parties could not agree.
