Armadale Retail Investments Pty Ltd v Owenlaw Mortgage Managers Ltd and related matters

[2012] VSC 9

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT

CORPORATIONS LIST

No. 5614 of 2011

ARMADALE RETAIL INVESTMENTS PTY LTD	Plaintiff
v
OWENLAW MORTGAGE MANAGERS LTD	Defendant

and  No. 5616 of 2011

SUNSHINE RETAIL INVESTMENTS PTY LTD	Plaintiff
v
OWENLAW MORTGAGE MANAGERS LTD	Defendant

and  No. 5617 of 2011

HASTINGS RETAIL INVESTMENTS PTY LTD	Plaintiff
v
OWENLAW MORTGAGE MANAGERS LTD	Defendant

and   No. 5618 of 2011

MCCRAE RETAIL INVESTMENTS PTY LTD	Plaintiff
v
OWENLAW MORTGAGE MANAGERS LTD	Defendant

and   No. 5619 of 2011

LATROBE KING COMMERCIAL PTY LTD	Plaintiff
v
OWENLAW MORTGAGE MANAGERS LTD	Defendant

and   No. 5620 of 2011

WULGURU RETAIL INVESTMENTS PTY LTD	Plaintiff
v
OWENLAW MORTGAGE MANAGERS LTD	Defendant

and   No. 5621 of 2011

BUNDABERG RETAIL INVESTMENTS PTY LTD	Plaintiff
v
OWENLAW MORTGAGE MANAGERS LTD	Defendant

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JUDGE:	Davies J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2012
DATE OF JUDGMENT:	25 January 2012
CASE MAY BE CITED AS:	Armadale Retail Investments Pty Ltd v Owenlaw Mortgage Managers Ltd & related matters
MEDIUM NEUTRAL CITATION:	[2012] VSC 9

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CORPORATIONS — Appeal against decision of an Associate Justice — Rehearing de novo on the merits — Statutory demand— When statutory demand served — Service by post — Whether the deemed service provisions in the Acts Interpretation Act 1901 (Cth) and Evidence Act 2008 (Vic) rebutted by evidence — Corporations Act 2001 (Cth) ss 109X, 459G, Acts Interpretation Act 1901 (Cth) s 29, Evidence Act 2008 (Vic) s 160

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Fary	Champions Lawyers
For the Defendant	Mr M W Sanger	Frenkel Partners

HER HONOUR:

1. The plaintiffs have appealed orders made by an Associate Justice dismissing their applications pursuant to s 459G of the Corporations Act 2001 (Cth) (“the Act”) seeking to set aside statutory demands served on them by the defendant. The Associate Justice held that the applications were not filed within the time limit prescribed by s 459G(2), namely within 21 days after statutory demands were served on them by the defendant.[1] If the applications were not made within the specified time limit, the Court has no jurisdiction to hear the application.[2]

   [1]Armadale Retail Investments Pty Ltd v Owenlaw Mortgage Managers Ltd (Unreported, Supreme Court of Victoria, Efthim AsJ, 6 December 2011) , 5 [22].

   [2]David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265.

1. The issue for determination on the appeals, which proceed as rehearings de novo on the merits,[3] is whether the defendant can rely on the deemed service provisions in s 29 of the Acts Interpretation Act 1901 (Cth) (“Acts Interpretation Act”) and s 160 of the Evidence Act 2008 (Vic) (“Evidence Act”). If so, service was deemed to have been effected on 22 September 2011 as there was no controversy that the defendant sent the statutory demands to the plaintiffs by ordinary pre-paid post to their registered offices on 16 September 2011. As the applications were filed on 20 October 2011, they therefore would be out of time. The plaintiffs contended however that the statutory presumption of service on 22 September 2011 was rebutted by evidence that “delivery” of the statutory demands to the registered offices of the plaintiffs was not effected until 5 October 2011 and that the applications were accordingly made within time.

   [3]Supreme Court (Corporations) Rules 2003 r 16.5(1); Supreme Court (General Civil Procedure) Rules 2005 r 77.06(7).

The statutory provisions

1. By s 459E of the Act a person must “serve” a statutory demand on a company in order for the demand to have legal effect for the purposes of Part 5.4 of the Act. Section 109X(1)(a) of the Act specifies that a document may be served on a company by “posting it to” the company’s registered office. By s 29(1) of the Acts Interpretation Act service by post is deemed to be effected by properly addressing, prepaying and posting the document and service is taken to have been effected when the posted article “would be delivered in the ordinary course of post”, unless there is proof of non-delivery. Proof of non-delivery to the registered office will rebut the presumption that service has been effected by posting the document to the registered office of the company.[4] If service by post is deemed to have been effected by s 29(1) of the Acts Interpretation Act 1901 (Cth) , service will be presumed by s 160 of the Evidence Act 2008 (Vic) to have been effected on the fourth working day after the document was posted, unless evidence sufficient to raise a doubt about the presumption is adduced.

   [4]Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87.

1. It was argued for the plaintiffs that the statutory presumptions under s 29 of the Acts Interpretation Act 1901 (Cth) and s160 of the Evidence Act 2008 (Vic) did not apply here as there is proof that the statutory demands were not delivered to the registered office of the plaintiffs.

The evidence

1. The plaintiffs have the same registered office, namely Level 2, 582 Swan Street, Richmond, Victoria 3121.  The defendant’s evidence was that the address to which the statutory demands were posted was Level 2, 582 Swan Street, Richmond, Victoria 3121. 582 Swan Street is an office building of three storeys with a basement car park. It has a number of tenants, which include Thompson Property Management Pty Ltd (“Thompson Property”) which occupies Level 2. Thompson Property is a company controlled by Warren Alfred Thompson, who is also a director of each of the plaintiffs.  Mr Thompson has filed two affidavits in this proceeding.

1. Mr Thompson deposed that that there are four mailboxes located near the footpath outside the office building, one of which has the designation that it is for the delivery of mail to Thompson Property and another has the designation that it is for the delivery of mail to Wilson Pateras, another tenant of the building. Mr Thompson’s evidence was that none of the mail boxes “have any indication that they are for the delivery of mail to” the plaintiffs and that the plaintiffs do not maintain a mail box. Photographs of the mail boxes exhibited to his affidavit indicate that the other two mail boxes are not identified as mailboxes for any particular tenant. No name or other designation appears on either mailbox.

1. Mr Thompson deposed that an employee of Thompson Property, Janelle Smith, on 5 October 2011 “found” letters containing the  statutory demands and accompanying affidavits in the letterbox marked for delivery of mail to Thompson Property and that she immediately handed the letters to Ian Roberts, a senior employee of Thompson Property who copied Mr Thompson into an email that he sent to the plaintiffs’ solicitors providing a copy of the letter, statutory demand and accompanying affidavit directed to McCrae Retail Investments Pty Ltd and advising that letters and demands in the same terms had been received for the other plaintiffs. Janelle Smith has also sworn an affidavit in which she has deposed to opening the Thompson Property mailbox on 5 October 2011 and finding letters directed to the plaintiffs enclosing the statutory demands which she immediately handed to Mr Roberts. 

When was service effected?

1. It was argued for the plaintiffs that delivery to the mailbox located outside the building designated for mail for Thompson Property did not constitute service in accordance with s 109X of the Act by reason that the mailbox was not used for the receipt of mail addressed to the registered office of the plaintiffs and thus that delivery to that mail box was not delivery to the registered office. The argument raises an evidentiary question for determination as it is clear on the state of authorities that the submission is legally correct, if supported by the evidence.[5] In my view, the evidence does not, however, support the legal conclusion for which the plaintiffs contend. In my view, the plaintiffs, which bear the onus of proving non-delivery, have not rebutted the application of s 29(1) of the Acts Interpretation Act 1901 (Cth).

   [5]Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186.

1. Relevantly and critically Mr Thompson did not depose that the Thompson Property mailbox was not used for delivery of mail to the plaintiffs. He also did not depose that the Thompson Property mailbox was used exclusively for delivery of mail to Thompson Property. His evidence went no further than that the plaintiffs did not maintain a mail box. But that evidence simply established that the plaintiffs did not have their own mail box.  I am not prepared on the state of the evidence, considered as a whole, to draw the inference that the Thompson Property mailbox was not used for mail sent to the plaintiffs at their registered office. Indeed the evidence supports the contrary inference that the Thompson Property mailbox is used for mail sent to the plaintiffs at their registered office.

1. First, the plaintiffs shared the same address as Thompson Property which occupied level 2. Thompson Property is a company controlled by Mr Thompson, who is also a director of each of the plaintiffs.

1. Secondly, when Ms Smith collected the letters addressed to the plaintiffs containing the statutory demands, she did not place them in a different mailbox for collection by them but instead took them up to level 2. Although she did not say so expressly in her affidavit, it may reasonably be inferred that she opened the letters as she was aware of the contents, which caused her to hand the documents to Mr Roberts because she “realised that [they were] important” documents, and significantly, she states in her evidence “without date stamping [them]”. The inference can be drawn that Ms Smith not only collected mail at the Thompson Property mailbox addressed to the plaintiffs but that she was authorised to open mail addressed to the plaintiffs.

1. Thirdly, Mr Roberts is an employee of Thompson Property. Mr Roberts, in his capacity as the Financial Controller of Thompson Property, notified the plaintiffs’ solicitors of the receipt of the demands, copying Mr Thompson into the email. It may be inferred that  Mr Roberts was authorised to do so on behalf of the plaintiffs.

1. Fourthly, the evidence was entirely silent as to where mail addressed to the plaintiffs, received by post, was delivered.  The inference can properly be drawn, having regard to the matters above, that the plaintiffs shared the same mailbox as Thompson Property.

1. Accordingly, I have concluded that delivery to the Thompson Property mailbox was effective service for the purposes of s 29(1) of the Acts Interpretation Act 1901 (Cth).

1. Next I am satisfied that the presumption in s 160 of the Evidence Act 2008 (Vic) applies. The Associate Justice in his written reasons concluded that the presumption was not rebutted by the evidence before the Court. As this is a rehearing on the merits, I must form my own conclusion but His Honour’s reasons at paragraph 21, in my view, were plainly correct. There was no evidence at all that the Thompson Property mailbox had been checked, or mail collected, earlier than 5 October 2011 to establish that the letters could not have been delivered to that mail box before 5 October 2011. In order to rebut the presumption, there needed to be evidence before the Court that would enable the Court to conclude that the letters were delivered no earlier than 5 October 2011. Absent that evidence, there is no rebuttal of the presumption that the demands were delivered on the fourth working day after posting, namely 22 September 2011.

1. In the circumstances, the applications under s 459G of the Act were made out of time. The appeals are accordingly dismissed.