Accommodation West Pty Ltd v Innis

[2009] WASC 337

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ACCOMMODATION WEST PTY LTD -v- INNIS [2009] WASC 337

CORAM:   MASTER SANDERSON

HEARD:   20 OCTOBER 2009

DELIVERED          :   19 NOVEMBER 2009

FILE NO/S:   COR 198 of 2009

BETWEEN:   ACCOMMODATION WEST PTY LTD

Plaintiff

AND

LESLIE PATRICK INNIS
Defendant

Catchwords:

Corporations law - Application to set aside statutory demand - Failure to strictly comply with requirements of s 459G - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 459G

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr P A Dewar

Defendant:     Ms E C Hensler

Solicitors:

Plaintiff:     Summers Legal

Defendant:     Mark Cox

Case(s) referred to in judgment(s):

Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 1181

Chelring Pty Ltd v Coombs [2000] WASC 60

Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2004] QSC 308; [2005] 1 Qd R 12

LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134

Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409; (2000) 158 FLR 338

Universal Trade Exchange Pty Ltd v Westpac Banking Corp [2002] WASC 36; (2002) 20 ACLC 1302

1. MASTER SANDERSON: This is the plaintiff's application to set aside a statutory demand. Prior to any consideration of the merits of the plaintiff's application, the defendant claimed that the application to set aside the demand ought be dismissed because there was a failure to comply with the strict provisions of s 459G of the Corporations Act 2001 (Cth) as to the service of the application. There is no dispute as to the relevant facts. They may be summarised in this way. The last day for service of the originating process was 13 October 2009. On 12 October 2009 the originating process was filed with the Supreme Court Registry. The Supreme Court Registry records indicate that the first return date for the application was not allocated on 12 October 2009. The first return date was not in fact allocated by the Registry until 13 October 2009 at 1.49 pm.

2. Despite the fact that a first return date had not been allocated, a service copy of the originating process was returned to the outside clerk on 12 October 2009.  The service copy bore the action number, date of filing and signature of the principal registrar.  The only thing it lacked was the first return date.  On 12 October 2009 the service copy of the originating process was served on the defendant's solicitor.

3. On 13 October 2009, a Supreme Court registry officer notified the plaintiff's solicitors that the first return date had been set down for 20 October 2009.  Once advised of this fact, the plaintiff's solicitors notified the defendant's solicitor by email that the first return date was in fact 20 October 2009.  The defendant's solicitor does not deny that the email came to the defendant's solicitor's notice within the 21 day period.

4. The defendant argues that the document which was served was not a copy of the application for the purposes of s 459G of the Corporations Act.  It was submitted that the omission of the first return date was fatal and simply could not be rectified by any subsequent actions of the plaintiff's solicitor.

5. That argument must be accepted.  There is now a line of decisions dealing with this question.  It begins with the decision in Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 1181 and two decisions of mine, Chelring Pty Ltd v Coombs [2000] WASC 60 and Universal Trade Exchange Pty Ltd v Westpac Banking Corp [2002] WASC 36; (2002) 20 ACLC 1302. The Supreme Court of Queensland has considered the matter on at least two occasions and come to the same conclusion: see LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134 and Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2004] QSC 308; [2005] 1 Qd R 12.

6. In addition to these decisions, reference should be made to the decision of the Full Court of this court in Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409; (2000) 158 FLR 338. This decision was not squarely on point. In that case the plaintiff had served on the defendant a copy of the affidavit lodged in support of the application but the copy of the affidavit was missing four pages from an annexure. The court held that the requirement was that the copy served should be an 'exact copy'. As that requirement had not been complied with the demand ought be set aside.

7. I think all of these cases indicate there must be strict compliance with the requirements of s 459G. In this case there has not been strict compliance with the requirements of the section and the application to set aside the demand is not properly on foot.

8. The defendant seeks an order that the application for the demand to be set aside should be dismissed.  He also seek his costs.  Both of these orders should be made.  The orders will then be:

   1.The application to set aside the statutory demand is dismissed.

   2.The plaintiff is to pay the defendant's costs fixed at $1,600.00.