Dennis v Fodare Pty Ltd

[2007] NSWSC 180

CITATION:	Dennis v Fodare Pty Ltd [2007] NSWSC 180
HEARING DATE(S):	05/03/07
JUDGMENT DATE :	5 March 2007
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
EX TEMPORE JUDGMENT DATE:	5 March 2007
DECISION:	Order for winding up
CATCHWORDS:	CORPORATIONS - winding up - winding up by the court - service of originating process and supporting affidavits - documents sent by post to registered office - returned by post office marked "refused" - whether served
LEGISLATION CITED:	Acts Interpretation Act 1901, ss.28A, 29 Corporations Act 2001 (Cth), ss.5C, 109X, 459C Supreme Court (Corporations) Rules 1999, rule 2.7
PARTIES:	Bruce Vernon Dennis - Plaintiff Fodare Pty Ltd - Defendant
FILE NUMBER(S):	SC 6451/06
COUNSEL:	Mr J.T. Johnson - Plaintiff
SOLICITORS:	Dennis & Company - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

MONDAY 5 MARCH 2007

6451/06 - BRUCE VERNON DENNIS v FODARE PTY LTD

JUDGMENT

1 The plaintiff seeks an order for the winding up of the defendant in insolvency and an order for the appointment of a liquidator. In doing so, he relies on a presumption of insolvency arising under s.459C of the Corporations Act 2001 (Cth) by reason of non-compliance with a statutory demand in respect of a debt of $194,346.44. The debt is a judgment debt following recovery of judgment in that sum, by the plaintiff, in the District Court in respect of legal costs and disbursements for services rendered by him as a solicitor to the defendant in certain Federal Court proceedings.

2 All matters necessary to secure the making of a winding-up order have been duly proved in the usual way, with the exception of the matter of service to which I must now turn.

3 The originating process was filed on 22 December 2006 and was expressed to be returnable on 5 February 2007. On 16 January 2007, the plaintiff signed a letter to the defendant which enclosed the originating process, the affidavit accompanying the statutory demand and the affidavit of service of the demand. That letter and the enclosures were sent by post in a prepaid envelope addressed to the defendant at 132 Racecourse Avenue, Menangle. The ASIC search in evidence shows that to have been the address of the defendant’s registered office at all material times.

4 On 23 January 2007, the envelope was returned to the plaintiff by the post office bearing a post office sticker saying, "Return to sender" (with a representation of a finger pointing to the left) and giving as an explanation "Refused" and the date "22/1/07". The envelope had on its top left hand corner (with the finger pointing at it) the name of the plaintiff's firm and its post office box address, from which it may be inferred that anyone receiving and looking at the envelope would have known that it came from the plaintiff.

5 I am asked to infer, and do infer, that the "Refused" notation placed on the envelope by the post office indicates that the envelope came to the notice of a person at the Menangle address and that that person declined to accept delivery. From that I further infer that the envelope reached that address and that this happened on or before the date shown in the post office notation, that is, 22 January 2007.

6 It may thus be seen that the originating process and other documents sent by post with the letter of 16 January 2007 reached the registered office of the defendant within the time stipulated by rule 2.7 of the Supreme Court (Corporations) Rules 1999 and that this happened in consequence of the posting by the plaintiff.

7 Under both s.109X of the Corporations Act and s.28A of the Acts Interpretation Act 1901 as in force on 1 November 2000 and made applicable for the purposes of the Corporations Act by its own s.5C, service on a company such as the present defendant may be effected by posting a document to its registered office. That is the mode of service that was employed here and, in view of the evidence that the documents actually reached the registered office, at which they were apparently “refused” and sent back, there is no need to enquire into matters concerning the ordinary course of post made relevant by s.29 of the Acts Interpretation Act.

8 On the evidence, service of the originating process and accompanying affidavits was effected by post within the required time and in such a way as to make it appropriate to proceed to adjudication in the absence of appearance by the defendant.

9 I might add that the plaintiff did take the added precaution of later causing the originating process and affidavits to be taken to the registered office address at Menangle. This was done by Mr Melville-Ross on 26 February 2007 which, of course, was after the original return date. However, a letter saying that the proceedings had been stood over to 10am on 5 March 2007 before the Corporations List Judge accompanied the copies physically delivered to the registered office on that occasion. Anyone who troubled to look at the documents Mr Melville-Ross took to and left at the registered office can therefore have been in no doubt about the status of the proceedings and what was to happen (and when).

10 In those circumstances and with all other necessary matters having been proved I will, despite the non-appearance of the defendant, make the orders sought.

11 The orders of the court are as follows:

1. Order that Fodare Pty Ltd ACN 003 722 147 be wound up in insolvency.

2. Order that David Lewis Clout of Level 14, 25 Bligh Street, Sydney, an official liquidator, be appointed the liquidator of Fodare Pty Ltd.

3. Order that the defendant pay the plaintiff's costs of the proceedings.

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