Craneford Nominees Pty Ltd v VGC CO-OPERATIVE Ltd

[2012] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

CRANEFORD NOMINEES PTY LTD  v  VGC CO-OPERATIVE LTD

[2012] SASC 59

Reasons of Judge Lunn a Master of the Supreme Court

13 April 2012

CORPORATIONS

Statutory demand - action to set it aside - whether action competent - whether s 459G(3)(b) of Corporations Act 2001 satisfied in that copy of Originating Process served within the necessary 21 day period - copy served not show seal of Court, Registrar's signature or date of filing - no seal of Court on original on Court file - omissions of Registrar's signature and date of filing on copy served held to mean it was not a copy of the application for s 459G(3)(b).

Held: action dismissed.

CRANEFORD NOMINEES PTY LTD  v  VGC CO-OPERATIVE LTD
[2012] SASC 59

JUDGE LUNN:

Reasons on whether plaintiff had properly invoked the jurisdiction of the Court to set aside the statutory demand

1. On 3 February 2012 the defendant served a statutory demand under s 459E of the Corporations Act 2001 (“the Act”) on the plaintiff claiming a debt of $514,709.43. On 22 February 2012 the plaintiff instituted this action seeking an order under s 459G of the Act setting aside that statutory demand on the ground there was a genuine dispute about the debt. The defendant has objected to the competence of this action. By agreement, I am first dealing with this point as a preliminary issue.

2. There is no dispute that the plaintiff instituted this action on 22 February 2012. The purported copies of the Originating Process and the supporting affidavit were sent to the defendant’s then solicitor on or before 24 February, which was the last of the 21 days allowed under s 459G of the Act for the proceedings to be served on the defendant.[1]

   [1]    There was an agreement between the respective solicitors which allowed the service to be by post.

3. The sole point in issue can be stated simply, but its resolution is difficult. Section 459G(3) of the Act provides:

   An application is made in accordance with this section only if, within those 21 days:

   …

   (b)a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.

   The defendant contends that the copy of the application[2] was not a true copy of the application and thus did not satisfy the condition laid down in sub-s (3)(b) for an application to the Court.  The defendant relied upon the decision of the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation[3] that the jurisdiction of this Court to entertain the plaintiff’s action is conditional upon strict compliance with all of the conditions in sub-s 459G(3).

   [2]    Which is an Originating Process by virtue of Rule 2.2 of the Corporations Rules 2003 (South Australia) (“the Corporations Rules”).

   [3] (1995) 184 CLR 265.

4. The defendant relies upon two instances where the copy of the Originating Process served within the 21 days did not replicate the Originating Process which was on the Court file.[4] The two instances were firstly that no Court seal, or indication of the Court seal,[5] and secondly the signature on behalf of the Registrar, which appears in Part D on the original, were not replicated in any way on the copy served. The defendant maintains, and in my view correctly on the authorities, that the jurisdiction of the Court to entertain this action is dependent upon the plaintiff showing that a copy of the application was served on the defendant within the requisite 21 days. The only issue is whether the version of the Originating Process which was served can be properly categorised as “a copy of the application” for the purposes of s 459G(3)(b).

   [4]    My subsequent comparison of the original Originating Process on the Court file with the copy served discloses that there was a third discrepancy which was that in Part D the date of filing was shown as “22/2/12”, whereas in the copy served these figures did not appear and the date of filing was left blank.  However, I take this to be subsumed in the defendant’s complaint about the signature of the Registrar being omitted from the copy served.

   [5]    Traditionally it has been accepted that a copy of the document bearing the seal of the Court can show the seal by writing “LS”.

5. After reserving my decision I ascertained for the first time that no seal of the Court[6] appeared on the original Originating Process on the Court file.  Presumably this was due to some oversight by the Registry staff.  As the Originating Process had been otherwise fully processed by the Registry staff, it does not mean that the document had not been accepted for filing.[7]  It is axiomatic that a copy of the Originating Process for service need not show anything which does not appear on the original.[8]  In any event, production of a sealed copy of an Originating Process is not required for valid personal service of it unless the person served has requested to see it, [9] which was not the case here.   Accordingly, the omission of the seal from the copy of the Originating Process which was served is of no significance.  Also, Rule 2.3(b) of the Corporations Rules does not make the sealing of the Originating Process mandatory.

   [6] This means the official seal of the Supreme Court under s 15 of the Supreme Court Act 1935 and 6R 51 of the Supreme Court Civil Rules 2006 and not the Registry “Received” stamp.

   [7]    Gerblich v Adplan Pty Ltd (No 3) Lunn M, 9 December 2011, [2011] SASC 225.

   [8]    The Registry issued the plaintiff’s solicitors with a duplicate copy of the Originating Process which did have the seal of the Court on it, but that was not served on the defendant within the 21 days and is irrelevant for present purposes.

   [9]    Petit v Ambrose (1817) 105 ER 1245.

6. Hence, the only relevant respects in which the copy served did not replicate the Originating Process was in the omissions of the Registrar’s signature and the date of filing. Regrettably, the authorities do not provide a clear-cut answer on whether the omissions of this signature and date mean that the copy served was not a copy of the application for the purposes of s 459G(3)(b). In Robowash Pty Ltd v Robowash Finance Pty Ltd[10] the Full Court of the Supreme Court of Western Australia, on the corresponding requirement in s 459G(3)(b) for the service of a copy of the supporting affidavit, held the omission of four pages of the annexures to the affidavit in the copy served meant that a sufficient copy of the affidavit had not been served and thus sub-s (3) was not satisfied. The Court said at [24]-[28] that strict conformity was required between the original and the copy served.

   [10] (2000) 158 FLR 338.

7. In Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd[11] Miller J, with whom the other members of the Full Court agreed, in commenting on the Robowash case said:

   The requirement for the provision of copies of documents under the Rules of Court is extremely strict and substantial compliance with the requirement for service with a copy of the affidavit and its annexures may be insufficient, (though how far this should be pressed, where the defect in compliance is slight, may be questionable) the document from which four pages was missing in that case was an essential annexure to the affidavit.

   [11] Full Court of the Supreme Court of Western Australia, 27 September 2001, [2001] WASCA 299 at [20].

8. In Medeco Group Pty Ltd v Cripps[12] White J of the Supreme Court of New South Wales said the word “copy” used in s 459G(3)(b) did not mean it had to be a photocopy, and he held that a missing line in a copied affidavit was made good by sending another copy within the 21 day period.

   [12] (2009) 27 ACLC 1404 at [14]-[20].

9. There are a number of authorities that the omissions from the copy served of the action number, the return date and time for the hearing, the Court seal and the Registrar’s signature, meant they were not copies of the application for the purposes of sub-s 459G(3)(b).[13]  They applied what was said in the Robo Wash case, but in a context where their omissions were significant for the defendant in responding to the Originating Process.[14]

   [13]   These authorities are conveniently summarised in Cooloola Dairys Pty Ltd v National Foods Milk Ltd (2004) 211 ALR 293 at [28]-[35].

   [14]   In the Cooloola Dairys case Chesterman J referred to all of the other omissions there as being significant, except he made no specific reference to the absence of the Registrar’s signature.

10. I considered these authorities in my decision Bolivar Road Pty Ltd v Stefren Pty Ltd[15] where there  were also far more substantial omissions than those in the present case.  At [9] I said:

    I accept that it is likely that some minor inconsequential omission to replicate every part of the Originating Process in the document served would not mean that s 459G(3)(b) had not been satisfied and the de minimus principle could be applied.  Precisely where omissions from the form cease to be de minimus, and mean that s 459G(3)(b) has not been satisfied, is unclear.

    [15] 3 June 2011, [2011] SASC 93.

11. I do not consider that the omissions of the Registrar’s signature and the date of filing can be regarded as de minimus. Particularly in the absence of the Court’s seal, the only indication of the authenticity of the copy of the Originating Process was the presence of the Registrar’s signature. In Form 2 to the Corporations Rules, which is the form for the Originating Process, the date of filing in Part D appears immediately before the provision for the Registrar’s signature. That indicates that the signature at least verifies the date of filing. In applications under s 459G(1) that date of filing is of considerable significance, but prima facie the Registrar’s statement of it can be relied upon.[16]

    [16]   Gerblich v Adplan Pty Ltd (No 3), above, at [16].

12. Like Chesterman J in the Cooloola Dairys case at [34], I consider that I should follow the line of strict authorities and hold that the omissions of the Registrar’s signature and the filing date from the copy served mean that that copy was not a sufficient copy of the application to satisfy s 459G(3) of the Act. I reach this decision reluctantly as it is not shown that the defendant was prejudiced by it and it produces substantial adverse consequences for the plaintiff for what was a minor slip. However, it is for a Court higher than myself to determine whether the authorities which I have applied are correct or not.

13. While the omissions from the copy served were procedural irregularities,[17] they cannot be regularised by 6R 12(1) which provides that a procedural irregularity does not make an action void. The issue here is not whether the action is void, but whether the conditions precedent for jurisdiction under s 459G(3)(b) of the Act have been satisfied. That turns on the meaning of “copy of the application” in (3)(b), irrespective of whether under the Rules the action is void or only procedurally irregular. The plaintiff did not seek to invoke s 1322(4) of the Act.

    [17]   Brady v Barrow [1965] 2 QB 182; Smalley v Robey [1962] 1 QB 577.

14. The plaintiff also sought to invoke the powers of the Court under 6R 117(1) for the Court to make such orders it considered proper in the interests of justice to overcome any procedural irregularities.  However, it is not for this Court to give itself jurisdiction where it would not otherwise have it by retrospectively changing the requirements for service of copies.

15. Accordingly, I hold that this Court does not have jurisdiction to set aside the statutory demand, and the action will be dismissed.