When One Missed Deadline Decides Everything

Home › Case Studies › Case Law Library › Commercial & Business Cases › Civil Procedure & Evidence › David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43

Published: 17 November 2025 | Reviewed: 18 November 2025

(3-minute read)

Case Summary

This High Court decision is now decades old, but its core warning remains sharp: some corporate-law deadlines are jurisdictional - miss them, and the court simply has no power to help you.

In David Grant v Westpac (1995) 184 CLR 265, the companies served with statutory demands filed their s 459G applications after the 21-day deadline. They argued the court could cure the delay under s 1322. The High Court rejected that argument.

Gummow J held that the 21-day limit is not procedural but definitional of the court’s jurisdiction:

“An application may only be made within 21 days after the demand is so served” (s 459G(2)).

And further:

To treat s 1322 as extending the deadline “would deprive the word ‘only’ of effect.”

Because the applications were late, no valid s 459G proceeding existed. Without a proceeding, there was nothing for the court to “fix.” The consequences were severe: the statutory demands stood, the presumption of insolvency automatically arose, and the companies faced immediate exposure to winding-up proceedings.

Why It Still Matters

The case remains a touchstone for general counsel, CFOs and founders because it shows how commercial leverage can flip instantly if a deadline slips, even by a day.

Modern companies still receive statutory demands at moments of peak operational pressure: end-of-quarter reporting, fundraising, audits, supply-chain disruption. Most disputes with creditors are commercially resolvable, but David Grant shows that a missed safeguard at the outset can cut off the very path to that resolution.

The power imbalance is structural: the creditor sets the clock; the company bears the risk of administrative delay, internal miscommunication, or an adviser who isn’t aligned with the client’s urgency.

How to Avoid the Same Trap

Core risk exposed by the judgment:

The legal risk is process bifurcation: companies often fund both “settlement work” and “trial-readiness work” simultaneously, causing delay, duplicated costs and unclear accountability for deadline-critical steps.

When the High Court characterises a filing deadline as jurisdictional, even slight misalignment between advisory roles can cause a company to miss the window entirely.

The Clean Law safeguard that addresses this

The safeguard most responsive to David Grant is Cost Alignment - not because cost is the headline issue, but because the structural separation of roles prevents the timing failures the judgment penalises.

Clean Law is built on the principle:

Two lawyers often cost less than one - because you fund one path, not both.

Traditional models often assign one lawyer to juggle settlement strategy and litigation preparation simultaneously. In time-critical insolvency environments, this can blur responsibility for “who is watching the clock.”

Under Clean Law’s model, the settlement lawyer focuses solely on resolving the underlying dispute, while the litigation lawyer remains independent, activated only if proceedings become necessary.

This split removes duplicated work, but more importantly for this judgment, it creates clear operational ownership of compliance steps, including 21-day statutory demand responses, reducing timing risk at its root.

A safer approach for companies is a structure where each role is accountable, non-duplicative, and insulated from commercial pressure to “do everything at once.”

Reflection

David Grant is a reminder that procedural rights can disappear instantly. Corporate leaders often assume that courts can fix minor delays, but the High Court has confirmed that in this area, there is no second chance.

If this decision raises questions about timing, role separation or how to prevent structural delays within dispute management, the resources below offer a deeper explanation.

The case naturally leads to understanding how structural alignment prevents the type of delay that ended the companies’ rights in David Grant.

If your organisation is facing a statutory demand or a deadline-driven dispute, clarity often starts with a confidential, obligation-free discussion.
Book a confidential consult

By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.

Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.