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Dwyer v Canon Australia Pty Ltd

Dwyer v Canon Australia Pty Ltd

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Case Copied 23 March 2007 24 min read

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
In the Matter of HARRIS SCARFE LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQ)
DWYER & ANOR v CANON AUSTRALIA P/L & ORS
[2007] SASC 100
Judgment of The Honourable Justice Debelle
23 March 2007
CORPORATIONS - LEGAL CAPACITY AND RELATIONS WITH OUTSIDERS - SERVICE OF DOCUMENT ON COMPANY
Service of originating process – defendant asserts it did not receive documents – plaintiff asserts that documents were served by fax and post - whether service by post was proved – whether service by fax was proved – orders set aside – application made within time – leave to plaintiff to serve application again and have application re-heard.
Acts Interpretation Act 1901 (Cth) s 29; Acts Interpretation Act 1954 to 1962 (Q) s 39; Corporations Act (Cth) s 5C, s 109X, s 588FF; Corporation Rules 2003 R 1.3; Hire Purchase Act 1959 (Q) s 42; Supreme Court Rules 1987 R 12.05, referred to.
A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314; Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) (1996) 69 FCR 531; Bishop v Helps (1845) 2 CB 45; 135 ER 857; Fancourt v Mercantile Credits Ltd (1983) 157 CLR 87; Hastie & Jenkerson v McMahon [1991] 1 All ER 255; Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542; NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26; re Rustic Homes Pty Ltd (1988) 49 SASR 41, applied.
Rosefarms Pty Ltd v Stourhead Pty Ltd (2000) 155 FLR 24, distinguished.
Lady Anson v Trump [1998] 3 All ER 331; re WB Sharpe Constructions Pty Ltd (2001) 162 FLR 280; Australian Underwriting Agencies Pty Ltd and QBE Insurance Ltd (1999) 17 ACLC 22; Biotech International Ltd v Peptech Ltd (2000) 156 FLR 295; CFC Corporation Pty Ltd v Lanier (Australia) Pty Ltd (1993) 12 ACSR 136; FP Leonard Advertising Pty Ltd v KD Travel Service Pty Ltd (1993) 12 ACSR 136; Griffith Producers Co-operative Company Ltd v Calabria (1996) 15 ACLC 19; Ketrim Pty Ltd v AS&L Pty Ltd (2004) 214 ALR 206; Mildura Aboriginal Corporation v Australian Broadcasting Corporation [2001] VSC 82; Packham Pty Ltd v Teo [2006] WASC 135; Parklands Blue Metal Pty Ltd v Kowari Motors Pty ltd [2004] 1 Qd R 140; Perpetual Nominees Ltd v Masri Apartments Pty Ltd (2004) 49 ACSR 714, considered.

DWYER & ANOR v CANON AUSTRALIA P/L & ORS
[2007] SASC 100
Civil

DEBELLE J. This is an application to set aside an order made pursuant to s 588FF(3) of the Corporations Act (Cth) extending the time within which liquidators may bring proceedings under s 588FF. The essential question is whether the liquidators of a company have proved service upon Canon Australia Pty Ltd of the originating process seeking the extension of time.
Canon Australia Pty Ltd (“Canon”) is a defendant to a preference claim made by the liquidators of Harris Scarfe…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] SASC 100
Decision Date: 23 March 2007

CaseChat Overview and Summary

The matter of Dwyer v Canon Australia Pty Ltd involves a dispute over the service of originating process, with the plaintiff alleging that the defendant did not receive the documents. The case was heard by the court, which was tasked with determining whether the defendant had actually received the documents, and if so, how they were received. The primary legal issues the court had to decide were whether the service by post and by fax had been adequately proved. The plaintiff argued that the documents were served via both fax and post, while the defendant asserted that they did not receive the documents.

The court found that the plaintiff had not provided sufficient evidence to prove that the documents were received by the defendant. Specifically, the court noted that there was no proof of receipt in a complete and legible form, whether by post or by fax. The evidence provided by the plaintiff was deemed insufficient to establish that the documents had been served. The court emphasised that without proof of service, any judgment or order obtained by default is irregular and can be set aside as of right. Given the lack of proof of service, the court concluded that the judgment was irregularly obtained and decided to set aside the order of 14 April 2004 as it applied to Canon.

Furthermore, because the application under s 588FF(3) was made within the stipulated time, the court granted the liquidators the liberty to serve the application again and to list the application for re-hearing in respect of Canon. This decision ensures that the matter can be properly heard with the necessary proof of service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DEBELLE J

In this case no more has been established in that Phillips Fox sent the letter of 1 April 2004 by fax. There is a complete absence of proof of receipt of the documents in a complete and legible form. The liquidators have, therefore, failed to prove service by fax. Conclusion When reduced to its essentials, this is a case where it is asserted that originating process has been served but there has been a failure to prove service whether by post or by fax or by any other means. This is not a case where there is proof the documents have been served but have not come to the notice of the party for whom they are intended. Instead, there is simply no proof that the documents had been served. Where service of process by post is permitted and where there is proof of service and the documents are not returned, the documents are assumed to have been delivered in the ordinary course of post so that a judgment or order obtained on the faith of that assumption is regular. It will not be set aside except on terms as to payment of costs and proof of merit. But, if there is no proof of service or if the letter has been returned undelivered, a judgment or order obtained by default is irregular and well be set aside as of right: A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314; re Rustic Homes Pty Ltd (1988) 49 SASR 41 at 45. In the absence of proof of service, the judgment was irregularly obtained. I will, therefore, set aside the order of 14 April 2004 so far as it applies to Canon. However, as the application under s 588FF(3) was made within time, there will be liberty to the liquidators to serve the application again and list the application for re-hearing in respect of Canon.

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J

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