Advanced Mining & Civil Pty Ltd v Wescat Plant Hire Pty Ltd - [2016] WASC 413

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ADVANCED MINING & CIVIL PTY LTD -v- WESCAT PLANT HIRE PTY LTD [2016] WASC 413

CORAM: ACTING MASTER STRK

HEARD: 15 SEPTEMBER 2016

DELIVERED : 20 DECEMBER 2016

FILE NO/S: COR 124 of 2016

BETWEEN: ADVANCED MINING & CIVIL PTY LTD
Plaintiff
AND
WESCAT PLANT HIRE PTY LTD
Defendant

Catchwords:

Corporations law - Application to set aside a statutory demand - Date of service of demand - Service by post - Service by email

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff: Mr A M Prime
Defendant: Mr P T Arns

Solicitors:

Plaintiff: MDS Legal
Defendant: Arns & Associates

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

Asian Century Holdings Inc v Fleuris Pty Ltd [2000] WASCA 59
Australian Solar Electrics Pty Ltd v IPD Group Ltd [2012] FCA 786
Citystart Pty Ltd v Deputy Commissioner of Taxation (Cth) [2006] WASC 35
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259
Fancourt v Merchantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Gusdote Pty Ltd v Ashley [2011] FCA 250; (2011) 193 FCR 227
Healy v Deputy Commissioner of Taxation [2015] WASCA 44
Ketrim Pty Ltd v AS&L Pty Ltd [2004] NSWSC 1046; (2004) 214 ALR 206
ORH Contracting Pty Ltd v CGS Solutions Pty Ltd [2009] WASC 273
Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2003] QSC 098
Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176
Westpoint Management Pty Ltd v Goakes [2002] WASCA 317
Woodgate v Garard Pty Ltd (2010) 78 ACSR 468

ACTING MASTER STRK: This is an application by the plaintiff (Advanced Mining) to set aside a statutory demand (Demand) issued by the defendant (Wescat). Advanced Mining says that there is a genuine dispute about the existence and amount of the alleged debt owed by Advanced Mining to Wescat and an offsetting claim.
Wescat opposes the application on the grounds that the application was not filed within the 21 day period after the date of service of the Demand.
The sole issue for determination in this application is the date of service of the Demand, or alternatively the deemed date of service of the Demand.
It is common ground that the application to set aside the Demand was filed on 14 June 2016. That being so, the application is only competent if the Demand was served on or after 24 May 2016.
It is Advanced Mining's case that the demand was served on 24 or 25 May 2016, and not before. Wescat says that the demand was served prior to 24 May 2016. To resolve this issue it is necessary to carefully examine the evidence filed by the parties.

Was the Demand effectively served by post?

It is common ground between the parties that on 18 May 2016, Wescat's lawyer sent a cover letter, the Demand dated 18 May 2016 and the supporting affidavit of David Albert Kemp, by post to Advanced Mining in a pre‑paid Australia Post envelope. The evidence filed on behalf of Wescat establishes that the Demand was properly addressed, prepaid and posted.[1]
[1] Affidavit of Zoe Taylor White sworn 15 July 2016; and supplementary affidavit of Zoe Taylor White sworn 12 August 2016. Affidavit of Paul Theodore Arns sworn 12 August 2016 [5] ‑ [6].
I therefore accept that the Demand was posted on 18 May 2016.
The envelope was addressed to Advanced Mining's registered office. It is also common ground between the parties that it was posted to Advanced Mining's proper registered address.
However, on the evidence the envelope containing the Demand was not delivered by Australia Post to the registered office of Advanced Mining but instead to an Australia Post PO Box located at 8 Collingwood Street, Osborne Park.

Westcat's position

In serving the Demand by post, Wescat relies upon s 109X(1)(a) of the Corporations Act 2001 (Cth), and Advanced Mining does not dispute that service by post pursuant to s 109X(1)(a) was permissible.
Having established when the Demand was posted and that service of the Demand by post was proper, it is necessary to determine when the Demand was received.
Wescat relies on s 29(1) of the Acts Interpretation Act 1901 (Cth). Relevantly it provides:
Meaning of service by post
(1)Where an Act authorizes or requires any document to be served by post, whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
The reliance by Wescat on s 29(1) of the Act raises the question of the application of that section in circumstances where on the evidence, the envelope containing a statutory demand was not delivered by Australia Post to the relevant registered office, but instead to a post office box.
In Citystart Pty Ltd v Deputy Commissioner of Taxation (Cth),[2] the Court considered the application of s 29(1) of the Acts Interpretation Act in similar circumstances. The court noted that the questions to be determined in such circumstances are whether the defendant can rely on the deeming provision in s 29(1) to establish service on the plaintiff and the date upon which service was effected for the purpose of the Act.
[2] Citystart Pty Ltd v Deputy Commissioner of Taxation (Cth) [2006] WASC 35.
In the Citystart case, Master Newnes (as he then was) found as follows.[3]
I do not consider that the fact that the letter in this case was not delivered by Australia Post to the plaintiff's street address, but was placed in the plaintiff's post office box for collection by the plaintiff, establishes that delivery was not effected until the letter was actually received by the plaintiff and that the deeming provision has no application.
[3] Citystart Pty Ltd v Deputy Commissioner of Taxation (Cth) [19].
The application of s 29(1) of the Acts Interpretation Act, and its elements having been established, the question then is when would the Demand have been delivered 'in the ordinary course of post'.
It is Wescat's position, consistent with the authorities, that the 'ordinary course of post' is not concerned with particular idiosyncrasies or special arrangements relating to a particular addressee so as to fix a time at which service was effected that is different from the time at which service would have been effected under the general practice operating in the area.[4]
[4] Citystart Pty Ltd v Deputy Commissioner of Taxation (Cth) [23].
It is Wescat's position that 'the ordinary course of post' is instead concerned with the general delivery practices of the postal service as determined by the postal service, for which practices the Australian Postal Corporation (Performance Standards) Regulations 1998 (Cth) (Regulations) determine when mail shall, as a general rule, be delivered.
Wescat says that the Regulations impose on Australia Post the obligation to deliver mail in conformity with the standards imposed by the Regulations.
The Regulations relevantly provide that Australia Post must deliver at least 94% of all reserve services letters lodged with Australia Post:
(a)to the indicated address or, if Australia Post knows that the indicated address is not the appropriate address, to the appropriate address; and
(b)within the delivery time prescribed.
The delivery time prescribed for a letter which is not a 'priority letter' (where an additional fee is paid for priority service), to be delivered at an address within the State and in the capital city in which it is posted, is three business days from the date of posting.[5]
[5] Australian Postal Corporation (Performance Standards) Regulations 1998 (Cth) reg 6.
Wescat also relies upon the Australia Post Annual Report 2015, the relevant pages of which were annexed to the affidavit of Paul Theodore Arns, sworn on 12 August 2016. The Australia Post Annual Report 2015 includes:
(a)the Auditor General's Report Performance Standards, in which the Auditor General states that for the year ended 30 June 2015, Australia Post was, in all material respects, in compliance with the Regulations;
(b)the Domestic Letter Service Monitor Report, in which the Domestic Letter Service Monitor (TNS) states that on the basis of a sample of 378,139 test letters, Australia Post's domestic letter service conformed to its delivery undertakings for the year ended 30 June 2015. The test sample also established that Australia Post delivered 94.8% of all letters early, or on time, and 98.6% of the letters were delivered on time or not more than one working day after Australia Post's delivery undertakings;
(c)the Independent Assurance Report prepared by Deloitte. Deloitte independently audited TNS' process for calculating delivery performance and concluded that nothing had come to Deloitte's attention that would suggest that the results reported by TNS for the year ended 30 June 2015 had not been calculated in accordance with the agreed business rules or do not fairly represent the performance of Australia Post's basic letter service for that period.
The Demand was not posted in the year ended 30 June 2015. In this regard, Paul Theodore Arns deposes to his belief that (as at the date of swearing his affidavit) the Australia Post Annual Report for the year ending 30 June 2016 had not been published.
Wescat suggests that Australia Post's compliance with its performance standards in the year ending 30 June 2015 can be accepted as evidence of compliance with the performance standards in the year ending 30 June 2016.
In support of this, Paul Theodore Arns deposes to having read the relevant parts of the Australia Post Annual Reports for each year since the year ending 30 June 2007 concerned with compliance standards and his belief that Australia Post has maintained compliance with its performance standards in that period.
It is Wescat's position is that the presumption of fact in this case is that the Demand would have been delivered to the registered office of Advanced Mining at the latest within three business days of posting, being Monday, 23 May 2016. Wescat relies on the decision of the Court of Appeal in Healy v Deputy Commissioner of Taxation,[6] which concerned an appeal against a judgment of Wager DCJ (the primary judge), and in which Buss JA states:[7]
The primary judge found in effect that 'a very high percentage, over 99% of items were delivered within three working days in 2006/2007' [34]. Her Honour also found that 'evidence of the Australia Post annual report statistics 2006/2007 provide[s] a true indication of the likely time by which mail was delivered in 2006' [35]. Her Honour concluded that there was 'no reason why the Australia Post evidence should not be accepted' [40]. Those findings and that conclusion were not merely open to her Honour. They were plainly correct.
[6] Healy v Deputy Commissioner of Taxation [2015] WASCA 44.
[7] Healy v Deputy Commissioner of Taxation [89].
The accuracy of the statistics and other information in the Australia Post Annual Report 2015 were not challenged by Advanced Mining. There was no evidence that at the relevant time there was any disruption to the postal service that might affect delivery times, such as industrial action.[8]
[8] A consideration also taken into account in Healy v Deputy Commissioner of Taxation [128] (Newnes JA); citing Gusdote Pty Ltd v Ashley [2011] FCA 250; (2011) 193 FCR 227.
After having considered all of the evidence, I am satisfied that unless the contrary is proved, service of the Demand is deemed to have been effected at the time at which the letter would be delivered to the registered office in the ordinary course of post - being at the latest Monday, 23 May 2016.
Wescat says that it acknowledges that the presumption of service on 23 May 2016 is rebuttable.[9] It also says that it having been established that the Demand was posted on 18 May 2016 and it having established that delivery in the ordinary course of post would, on the balance of probabilities, have been within three business days (that is, by 23 May 2016), then it is for Advanced Metals to rebut the presumption.
[9] Ketrim Pty Ltd v AS&L Pty Ltd [2004] NSWSC 1046; (2004) 214 ALR 206.
As to where the onus lies, I agree that the position is as is as stated by Buss JA Healy v Deputy Commissioner of Taxation:[10]
Section 29(1) of the Acts Interpretation Act comprises two limbs. The first deems a document (which an Act authorises or requires to be served, including given or sent, by post) to have been served (including given or sent) if the conditions prescribed by the provision in relation to the posting of the document as a letter are satisfied. The second deems the document to have been served (including given) at the time at which the letter would have been delivered in the ordinary course of post, unless the contrary is proved. The onus of proving to the contrary, within the second limb, is upon the party against whom the deeming provision in that limb is invoked.

Advanced Mining's position

[10] Healy v Deputy Commissioner of Taxation [65].

Advanced Mining seeks to rely on the s 160(1) of the Evidence Act 1995 (Cth). The application of that section is misconceived in light of s 4 and s 5 of that Act.
Advanced Mining also relies on a number of affidavits, including the affidavit of Charles Sondergaard, sworn on 15 July 2016. In his affidavit, Charles Sondergaard says that he is a director of Sondergaard Accountants Pty Ltd, which trades as Sondergaard Consulting Accountants (Sondergaard). Sondergaard is Advanced Mining's accountant and Songergaard's address is Unit 1, 1 Hector Street, Osborne Park. Sondergaard's address is the address of Advanced Mining's registered office.
Charles Sondergaard explains Sondergaard's mail handling process as follows:
(a)All of Sondergaard's mail addressed to Unit 1, 1 Hector Street, Osborne Park is automatically redirected to an Australia Post PO Box located at 8 Collingwood Street, Osborne Park.
(b)This re‑direction has been in place for approximately eight years at Australia Post's direction.
(c)Sondergaard's PO Box is box number 1585 (the Box).
(d)It has been Sondergaard's usual practice for approximately two years for the Box to be emptied on a Monday, Tuesday and Wednesday each week.[11]
(e)Usually an administrative staff member collects the mail from the Box. The mail is collected from the box usually between 10.00 am and 2.00 pm.
(f)Once the mail is collected from the Box the mail is processed within 24 hours by it being opened; scanned into Sondergaard's system; and any unusual or out of the ordinary mail (like a Creditor's Statutory Demand), is normally brought to the responsible accountant's attention.[12]
[11] The statement that it has been Sondergaard's usual practice for approximately two years for the Box to be emptied on a Monday, Tuesday and Wednesday each week is not consistent with other parts of Mr Sondergaard's affidavit, which suggests that the Box was emptied on a Monday, Wednesday and Friday: see [17].
[12] Affidavit of Charles Sondergaard sworn 15 July 2016 [9] ‑ [15].
In relation to the delivery of the Demand, Charles Sondergaard states as follows:
(a)After 18 May 2016, in accordance with Sondergaard's usual practice, the mail would have been collected from the Box on:
(i)Friday, 20 May 2016;
(ii)Monday, 23 May 2016; and
(iii)Wednesday, 25 May 2016.
(b)On 23 May 2016, Charles Sondergaard's son, Ben Sondergaard, collected the mail from the Box at approximately 2.00 pm.
(c)On 25 May 2016, Ben Sondergaard collected the mail from the Box, processed the mail and later that day, brought the Documents to the attention of Charles Sondergaard.
(d)On the evening of 25 May 2016, Charles Sondergaard emailed a copy of the Documents to Stephen Walsh.[13]
[13] Affidavit of Charles Sondergaard sworn 15 July 2016 [16] ‑ [24].
Mr Sondergaard says that based on Sondergaard's usual process, he believes that the Documents would have been delivered to the Box after Ben Sondergaard collected the mail at 2.00 pm on Monday, 23 May 2016, on Tuesday, 24 May 2016 or Wednesday, 25 May 2016.[14] Although not deposed to directly, it appears that the court is asked to inferred from his evidence that if the Demand had been in the Box on Friday, 20 May 2016, or when it was checked by Ben Sondergaard on Monday, 23 May 2016, it would have been brought to the attention of Charles Sondergaard (the responsible accountant) in accordance with Sondergaard's usual practice.
[14] Affidavit of Charles Sondergaard sworn 15 July 2016 [25].
Advanced Metals also relies on the affidavit of Gregory Maher,[15] a solicitor employed by Advanced Mining's solicitors. Mr Maher deposes to the substance of several telephone conversations he has had with employees of Australia Post. From the conversations, it appears that the usual practice of the Australia Post office located in Osborne Park is as follows:
(a)mail gets delivered between 4.00 am and 5.00 am each business day;
(b)between 6.00 am and 9.00 am the mail is sorted into their post office boxes or grouped into street address so that it can be ready for mail delivery persons to go on their route for the day after 9.00 am;
(c)there is only one delivery and sorting each day;
(d)the standard for the Osborne Park office is to have all mail into the post office boxes before 9.00 am and all post office boxes should have received their mail by 9.00 am each business day.
[15] Affidavit of Gregory Damian Maher sworn on 20 July 2016.
Having regard to the affidavits of Charles Sondergaard and Gregory Maher, counsel for Advanced Metals says that it must be assumed that the Demand was not in the Box on Friday, 20 May 2016 or Monday, 23 May 2016 as it would have been there by 9.00 am and would have been collected on one of those dates. Advance Metals say that the Demand was delivered to the Box at the earliest, on the morning of Tuesday, 24 May 2016.
Whether the Demand was delivered on Tuesday, 24 May 2016, or on 25 May 2016, Counsel for Advanced Metals says that the application was filed within time.

Hearsay evidence

In determining whether Advanced Metals has discharged the onus, it is necessary to determine the admissibility of the evidence of Charles Sondergaard and Gregory Maher.
Wescat says that an order setting aside a statutory demand is a final and not an interlocutory order,[16] and Wescat has failed to adduce admissible evidence so that it is unable to discharge the onus.
[16] Westpoint Management Pty Ltd v Goakes [2002] WASCA 317; Asian Century Holdings Inc v Fleuris Pty Ltd [2000] WASCA 59.
Advanced Metals relies on a more recent decision of Master Sanderson in which he noted that there is a difference of judicial opinion on the question,[17] but ultimately favoured the view that the application is interlocutory in nature and that hearsay evidence is admissible.[18]
[17] ORH Contracting Pty Ltd v CGS Solutions Pty Ltd [2009] WASC 273 [15].
[18] ORH Contracting Pty Ltd v CGS Solutions Pty Ltd [20].
Adopting the same reasoning and approach, I will not strike out parts of Charles Sondergaard and Gregory Maher's affidavits and note that my decision to not strike out the hearsay evidence is ultimately determinative of the application.

Was 'the contrary' proved by Advanced Metals?

As explained above, is Wescat's position, consistent with the authorities, that the 'ordinary course of post' is not concerned with particular idiosyncrasies or special arrangements relating to a particular addressee so as to fix a time at which service was effected that is different from the time at which service would have been effected under the general practice operating in the area.[19]
[19] Citystart Pty Ltd v Deputy Commissioner of Taxation (Cth) [23].

In the present case (as it was in the Citystart case[20]), there is no evidence that it was the general delivery practice of Australia Post, as opposed to the practice in relation to deliveries to Advanced Mining, to place mail addressed to a street address in a post box, where the addressee has a post office box. There was, in addition, no evidence to suggest that Wescat knew Advanced Mining had a post office box or that it was, or should have been, aware of any practice of Australia Post to divert mail addressed to the addressee's post office box, where the addressee has a post office box. The fact that mail to Advanced Mining's registered office was diverted to a post office box was, of course, known to Advanced Mining. Further, there was no evidence that Advanced Mining could not have required Australia Post to deliver mail addressed to its registered office street address to that street address.
[20] Citystart Pty Ltd v Deputy Commissioner of Taxation (Cth) [25].
Consistent with the finding of Master Newnes (as he then was) in the Citystart case, I do not consider that it can be said that the diversion of Advanced Mining's mail to its post office box was in accordance with the general delivery practices of Australia Post, rather than a special arrangement.[21]
[21] Citystart Pty Ltd v Deputy Commissioner of Taxation (Cth) [30].
I also agree that 'the deeming provision in s 29(1) of the Acts Interpretation Act applies, although the statutory demand was in fact delivered, not to the registered office of the plaintiff, but to its post office box. When delivery would have been effected in the "ordinary course of post" is to be determined by when the demand would have been delivered if no special arrangements had existed in respect of mail addressed to the plaintiff; that is, if the letter had not been diverted to its post office box. The date of delivery does not depend upon special arrangements that exist in relation to the delivery of mail to the plaintiff'.[22]
[22] Citystart Pty Ltd v Deputy Commissioner of Taxation (Cth) [31].
The question to be determined then is whether on the evidence before me, I am satisfied that the contrary is proved - that service of the Demand in the ordinary course of post would not have occurred as would otherwise be deemed, on or before Monday, 23 May 2016.
The authorities recognise that there is a clear distinction between delivery of a letter to a particular place and the receipt of a letter by a particular person. If delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have been taken place in the ordinary course of post.[23]
[23] Healy v Deputy Commissioner of Taxation [132] (Newnes JA); citing Fancourt v Merchantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 96 ‑ 97.
In Healy v Deputy Commissioner of Taxation, counsel for the appellant argued that evidence of non-receipt was nevertheless relevant to establishing non-delivery and was sufficient in that case to establish an arguable case of non‑delivery. This was not accepted by Newnes JA, finding as follows.[24]
While evidence that a document was not received by a person may be relevant to establishing non-delivery to a particular place and, taken together with evidence of other relevant circumstances, may permit a proper inference of non-delivery to be drawn, the difficulty for the appellant is that the evidence in this case did not go beyond evidence that the [document] was not received by the appellant. There was no evidence capable of proving that it was not delivered to the address. There was, for instance, no evidence as to who was occupying the premises at the address at the relevant time or as to what happened to mail after it was delivered to the address, including whether there was any system or routine for collecting the mail and who had access to it.
That is to be contrasted with a case such a Scope Data Systems, upon which the appellant sought to place some reliance, where it was found that a letter had not been delivered on the day on which it would have been delivered in the ordinary course of post, there being evidence that the recipient's post office box had been checked several days after that day and the letter was not in it. The letter was found in the post office box upon a further check several days later again. In other words, there was evidence not merely that the letter was not received by the addressee but that it was not delivered to the address. That is quite different to the present case.
[24] Healy v Deputy Commissioner of Taxation [133] ‑ [134].
In this case, the facts are more similar to those before the court in Scope Data Systems[25] than in Healy v Deputy Commissioner of Taxation.
[25] Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176.
In the circumstances of this case, the evidence of non-receipt by Sondergaard (whose address was also the address of Advanced Mining's registered office) of the Demand before Wednesday, 25 May 2016 permits a proper inference that the Demand was not in the Box on Friday, 20 May 2016 or Monday, 23 May 2016 as it would have been there by 9.00 am and would have been collected on one of those dates. The evidence also permits a proper inference to be drawn that the Demand was delivered to the Box at the earliest, on the morning of Tuesday, 24 May 2016.
Such a finding is not inconsistent with the approach adopted by the Court of Appeal in Healy v Deputy Commissioner of Taxation.
In this regard, the evidence of the employees of Australia Post (albeit hearsay) is relevant. As explained above, Mr Maher deposes to the substance of several telephone conversations he has had with employees of Australia Post. From the conversations, it appears that the usual practice of the Australia Post office located in Osborne Park is as follows:
(a)mail gets delivered between 4.00 am and 5.00 am each business day;
(b)between 6.00 am and 9.00 am the mail is sorted into their post office boxes or grouped into street address so that it can be ready for mail delivery persons to go on their route for the day after 9.00 am;
(c)there is only one delivery and sorting each day;
(d)the standard for the Osborne Park office is to have all mail into the post office boxes before 9.00 am and all post office boxes should have received their mail by 9.00 am each business day.
From this evidence, I am able to find that delivery to the street address of the registered office would have occurred on the same day as delivery to the Box. The evidence of non-receipt by Sondergaard (whose address was also the address of Advanced Mining's registered office) of the Demand before Wednesday, 25 May 2016 permits a proper inference to be drawn that the Demand would not have been delivered to the street address of the registered office on Friday, 20 May 2016 or Monday, 23 May 2016. The evidence is also capable of establishing an arguable case that the Demand would have been delivered to the street address of the registered office at the earliest, on the morning of Tuesday, 24 May 2016.
I am satisfied on the evidence before me that the contrary is proved - and that Advanced Mining has discharged the onus of proving that service of the Demand in the ordinary course of post would not have occurred as would otherwise be deemed, on or before Monday, 23 May 2016.

Was there effective informal service?

In the alternative, Wescat says that the Demand was brought to the attention of Advanced Mining's director on 20 May 2016, which was effective service. If correct, the application was not filed within the 21 day period after the date of service of the Demand.
In this regard, Wescat says that on 20 May 2016, the Demand was sent by email from Wescat's solicitor Paul Arns to Kerene Day. Wescat says that Karene Day is an employee of Advanced Mining who holds the position of Accounts Manager.[26] Receipt of the email sent by Paul Arns and the attached documents (which on the evidence included the Demand) (the first email) were acknowledged as having been received by Karene Day in a responsive email that she sent to Paul Arns on 20 May 2016 (the second email), in which she stated 'We have received the documents and I will pass them onto the director'.
[26] Affidavit of Paul Theodore Arns sworn 12 August 2016 [13] - [15], 'PTA4' and 'PTA5'.
Section 459G does not deal with what is service. As explained by Helman J in Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd:[27]
The ordinary meaning of 'service' is personal service, and personal service merely means that the document in question must come to the notice of the person for whom it is intended. The means by which that person obtains the document are usually immaterial. This is clear in cases that have been considered good law over the centuries … Some of those cases were complicated by the requirement in the former statutes that a person serving initiating process had to endorse the initiating process, but the principle is clear from them.
If this were not so, one would get the absurd situation referred to by McInerney J in Pino v Prosser (at 837), that the conclusion would be one which is:
'... remarkable to the point of seeming absurdity, in that the defendant who, on his own affidavit admits that he received the writ ... should be held not to have been served.' (p543-p544)
Young J held that s109X of the Corporations Law was not a code governing service. S109X, by providing that a summons 'may be served' by certain means, is facultative not mandatory:
The document could have been served under s109X, but the mere fact that it has not been does not disqualify it from service if the document came into the possession of the addressee. (p544)
There is, I think, no reason to refrain from applying the principle explained by Young J in Howship Holdings Pty Ltd v Leslie to service of a statutory demand under s459E of the Corporations Act. To ignore the admissions of receipt, and, it should be noted, service, of the documents of the kind before me in this case would be artificial in the extreme. I therefore conclude that service of the statutory demand and the accompanying affidavit occurred when, on behalf of the applicant, it was admitted that it had taken place, ie, on 31 January 2003.
[27] Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2003] QSC 098 [8] ‑ [9].
Wescat refers to the decision of Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd[28] as authority for its proposition that Karene Day is a person with authority to deal with such a document on behalf of Advanced Mining, a corporation to be served or provided with the document. In this regard, I refer to the following passage from the decision of Hodgson JA:[29]
[In] my opinion it is clear that if a document has actually been received and come to the attention of a person to be served or provided with a document, or of a person with authority to deal with such a document on behalf of a person or corporation to be served or provided with the document, it does not matter whether or not any facultative regime has been complied with: see Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; Mohamed v Farah [2004] NSWSC 482 at [42] - [44]. In such case, there has been service, provision and receipt.
[28] Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259.
[29] Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [58].
Wescat also relies on Australian Solar Electrics Pty Ltd v IPD Group Ltd[30] (citing Woodgate v Garard Pty Ltd[31]) setting out the principles about the proper construction of s 109X and the 'effective informal service rule':[32]
For present purposes, I agree with and adopt the following principles propounded by Palmer J in Woodgate v Garard Pty Ltd (2010) 78 ACSR 468 at [44] about the proper construction of s 109X and the so called effective informal service rule, namely:
1.if a document required to be served on a company by the Act is served in accordance with any of the modes prescribed in s 109X(1) of the Act and s 28A of the Acts Interpretation Act 1901 (Cth) (the prescribed modes), the document is validly served;
2.where service is effected by leaving the document at the company's registered office in accordance with s 109X(1)(a), it makes no difference whether the document is left within or outside normal business hours or within or outside the hours at which that office is kept open, and the date of service is the date of leaving the document, not when it comes to someone's attention;
3.the prescribed modes are not exhaustive. Whether there has been good service depends upon whether the serving party can prove to the court's satisfaction that the document actually came to the attention of an officer of the company who was either expressly or implicitly authorised by the company to deal directly and responsively with the document, or documents of that nature (a responsible officer);
4.there is no special exception to the 'effective informal service rule' in the case of service by email or facsimile - the question remains whether that mode of service actually brought the document to the attention of a responsible officer;
5.where a document, not served in a prescribed mode, comes to the actual attention of the sole director of a company it will be presumed, unless a strong case to the contrary is shown, that the director is the responsible officer and that service is good; and
6.a party invoking the effective informal service rule bears the onus of proving the time at which the document came to the actual attention of a responsible officer of the company and, in view of the serious consequences which may result, the court will not lightly draw inferences or make assumptions as to the time of service.
[30] Australian Solar Electrics Pty Ltd v IPD Group Ltd [2012] FCA 786 (Gordon J).
[31] Woodgate v Garard Pty Ltd (2010) 78 ACSR 468 (Palmer J).
[32] Australian Solar Electrics Pty Ltd v IPD Group Ltd [7].
In this case, the only evidence that Karene Day is a person with authority to deal with the Demand on behalf of Advanced Mining is her title of 'Accounts Manager' which appears under her name in the second email, and the inference to be drawn from the evidence that she is an employee of Advanced Mining.
Having carefully considered the limited evidence before me, I find that Wescat has not proved to my satisfaction that by emailing the Demand to Karene Day on 20 May 2016, the Demand actually came to the attention of an officer of Advanced Mining who was either expressly or implicitly authorised by Advanced Mining to deal directly and responsively with the Demand on that day. Indeed, in the second email, Karene Day says that she will pass the documents on to the director.
I note that the second email was also sent by Karene Day to another email address (which appears in the 'cc' field). On the evidence, I accept was the email address in the 'cc' field was that of Stephen Walsh, director of Advanced Mining.
From an inspection of the printed copy of the second email to which Stephen Walsh was copied,[33] it does not appear that the documents that were attached to the first email (which included the Demand) were attached to the second email. That is, while Stephen Walsh did receive by the second email notice of the Demand, there is no evidence before me that he received the Demand by that second email, nor subsequently from Karene Day.
[33] Being 'PTA5' to the affidavit of Paul Theodore Arns.

Determination

For the reasons set out above, I am satisfied on the evidence before me that the contrary is proved - and that Advanced Mining has discharged the onus of proving that service of the Demand in the ordinary course of post would not have occurred as would otherwise be deemed, on or before Monday, 23 May 2016. I also find that effective informal service has not been established.
It follows that the application to set aside the statutory demand was made within time. Advanced Mining says that there is a genuine dispute about the existence and amount of the alleged debt owed by Advanced Mining to Wescat and an offsetting claim. Wescat conceded the same and only opposed the application on the grounds that the application was not filed within the 21 day period after the date of service of the Demand.
In the circumstances, I grant Advanced Mining's application and I will hear the parties as to the form of order and as to costs.