ACN 097 606 678 Pty Ltd (Formerly Known as MCL Holdings Pty Ltd) v The Owners of 64 Fitzgerald Street Northbridge

[2022] WASC 133

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ACN 097 606 678 PTY LTD (FORMERLY KNOWN AS MCL HOLDINGS PTY LTD) -v- THE OWNERS OF 64 FITZGERALD STREET NORTHBRIDGE [2022] WASC 133

CORAM:   MASTER SANDERSON

HEARD:   6 APRIL 2022

DELIVERED          :   22 APRIL 2022

PUBLISHED           :   22 APRIL 2022

FILE NO/S:   COR 2 of 2022

BETWEEN:   ACN 097 606 678 PTY LTD (FORMERLY KNOWN AS MCL HOLDINGS PTY LTD)

Plaintiff

AND

THE OWNERS OF 64 FITZGERALD STREET NORTHBRIDGE

Defendant

Catchwords:

Corporation law - Application to set aside statutory demands - Strange entry on ASIC register - Turns on own facts

Legislation:

Corporations Act 2001 (Cth)

Result:

Application dismissed
Plaintiff pay defendant's costs of application including reserved costs

Category:    B

Representation:

Counsel:

Plaintiff	:	T Galic
Defendant	:	A Prentice

Solicitors:

Plaintiff	:	TGC Lawyers
Defendant	:	Mossensons

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

Nil

MASTER SANDERSON:

1. This was the plaintiff's application to set aside two statutory demands served by the defendant on the plaintiff.  The plaintiff alleged the demands ought be set aside on one or both of two grounds.  First, it was said there was invalid service of the demands.  Second, it was said that it was improper for the defendant to serve two demands in a situation where the two admittedly separate claims could have been the subject of one demand.  Both grounds were demonstrably without merit.  But there was one feature in relation to the issue of service which requires comment.

2. Both demands appear as attachments to an affidavit of Tihomir Galic sworn 10 January 2022 and filed in support of the application.  The first is for an amount of $18,048.35 being moneys owing ($15,681.89 pursuant to a Certificate of Costs Assessment issued by the Magistrates Court plus interest).  The second demand was for $46,880.12 in respect of unpaid strata levies in relation to a property in Fitzgerald Street, Northbridge.  It was not alleged by the plaintiff that either debt was not owing to the defendant.  Nor was it suggested there was an offsetting claim.  It seems the plaintiff had decided not to pay these debts - perhaps because it was insolvent.

3. Prior to issuing the demands, the defendant undertook a company search.  A copy of this search appears as attachment TJH2 to an affidavit of Tracey Jane Hough sworn 21 January 2022.  Under the section of the Australian Securities and Investment Commission (ASIC) search headed 'Address Details' there appears the following:

Current	Document Number
Registered address: Start date:	'Info Received Address May be Invalid, 12/01/2018', 24 **rayment Street, LATHLAIN WA 6100 UNKNOWN	030134493
Principal Place of Business address: Start date:	Ground Floor, 64 Fitzgerald Street, NORTHBRIDGE WA 6003 20/06/2007	1E3335922

1. The entry for the address is curious.  During the course of the hearing I enquired of both counsel whether they had come across an entry of that kind before.  Neither had.  Nor is it an entry I am familiar with.  Counsel for the plaintiff had not made any enquiries with ASIC as to why the entry was in that form.  In his affidavit, Mr Galic says the Rayment Street address is not, on his understanding, the present registered office of the company.  It would seem instructions had been issued to change the registered office but for one reason or another that change had not been noted on the ASIC register. 

2. The defendant decided the proper course was to serve the statutory demands at the Rayment Street address.  This it did.  It also sent copies of the statutory demands to Mr Galic by email.  Mr Galic received these emails and was in a position to make this application within the 21 day period.  However, he maintained that service on the Rayment Street property was invalid and the demands ought be set aside on that basis.

3. In my view, the defendant was within its rights to serve the demands on the Rayment Street address. Service of documents relying on s 109X of the Corporations Act 2001 (Cth) is entirely proper. Service is presumed to be effected on the day on which the document was delivered. It is not uncommon for service to be effected on premises which are empty. That is not to the point. If there has been compliance with the requirements of the section, then service is presumed. It is irrelevant the documents have not come to the attention of the company.

4. In this case the best information available on the face of the ASIC record was that the registered office was in Rayment Street, Lathlain.  The gratuitous comment found on the record cannot alter the fact the registered office is as set out in the ASIC record.  Therefore, the defendant was within its rights to serve the statutory demands at the Lathlain address.

5. However, sensibly the defendant took steps to ensure the statutory demands were brought to Mr Galic's attention.  The plaintiff, through Mr Galic, was actually made aware of the demands and was in a position to take whatever steps in relation to them it deemed appropriate.  There had in fact been service - what might be termed de facto service.  That was sufficient.  There is no warrant for setting aside these demands on the basis of improper service.

6. The remaining issue was whether or not the two demands should have been issued.  The defendant explained the two demands on the basis that one was for a judgment debt and therefore no affidavit was required to be served with the demand.  On the other hand, the demand for the strata fees was for a debt owing and that demand did require an accompanying affidavit.  In my view that explanation for the two demands is satisfactory.  But even if it could be argued that both debts should have been covered by one demand, there can be no suggestion or any confusion on the part of the plaintiff as to the claims made by the defendant.  Cases where multiple demands have led to those demands being set aside generally involve instances where a debtor may be confused by the multiplicity of the demands.  That is not the case here.  The position was crystal clear. 

7. The plaintiff's application to set aside these demands will be dismissed.  The plaintiff should pay the defendant's costs of the application including reserved costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AH

Associate to Master Sanderson

22 APRIL 2022