Deputy Commissioner of Taxation v Josway Hospitality Pty Ltd

In the case of Deputy Commissioner of Taxation v Josway Hospitality Pty Ltd, the applicant company sought to set aside a winding-up order made by the Registrar due to an alleged failure in the service of a statutory demand. The dispute centred on whether the statutory demand, sent by post to the company's accountant, was properly served in accordance with the Corporations Act 2001 (Cth). The court was required to decide whether there was sufficient doubt as to the effective service of the statutory demand to warrant setting aside the winding-up order. This involved examining the presumptions and rebuttals of service under the Evidence Act 1995 (Cth) and the Acts Interpretation Act 1901 (Cth).

The court found that the evidence presented was sufficient to create a doubt within the meaning of s 160 of the Evidence Act. The deponent, who was responsible for the company’s communication system, attested that the statutory demand was not delivered or received as per the system's protocol. This testimony, coupled with the acknowledgment that the company was no longer a client at the time of the intended delivery, raised a plausible doubt about the effective service of the statutory demand. The court concluded that the evidence was sufficient to satisfy the threshold for raising a doubt about the presumption of delivery under s 160 of the Evidence Act. Consequently, the court allowed the application to set aside the winding-up order.

The court further considered the principles governing the service of winding-up notices by post, noting that while proof of non-receipt does not necessarily equate to non-delivery, evidence of non-receipt at a place may be sufficient to create a doubt for the purposes of s 160. The court held that the presumption of delivery under s 160 can be rebutted with evidence that raises a reasonable doubt, which need not meet the standard of proof required at trial. The court ordered the winding-up order to be set aside, dismissed the winding-up application, and directed that the costs of the liquidators be reserved for a future date, while the applicant’s costs were to be paid by the plaintiff.