EC Newstead Property Group Pty Ltd v H&T Qld Pty Ltd

[2020] VSC 322

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2020 01006

IN THE MATTER of EC NEWSTEAD PROPERTY GROUP PTY LTD (ACN 608 843 858)
BETWEEN:
EC NEWSTEAD PROPERTY GROUP PTY LTD (ACN 608 843 858)	Plaintiff
v
H&T QLD PTY LTD (ACN 154 753 572)	Defendant

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JUDGE:	Randall AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2020
DATE OF RULING:	2 June 2020
CASE MAY BE CITED AS:	EC Newstead Property Group Pty Ltd v H&T Qld Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 322

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CORPORATION – Corporations Act 2001 (Cth) – Service of statutory demand by express post – Defendant contended that service effected by an email transmission on an earlier date – Whether ‘informal service’ ought to be considered in circumstances where service effected by post and receipt acknowledged – Strictness of 21 day regime under Part 5.4 of the Corporations Act 2001 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Paterson	JEM Lawyers
For the Defendant	Ms M J Harris	Australia Professional Legal

HIS HONOUR:

1. This was an application to set aside a statutory demand served by the defendant upon the plaintiff. The statutory demand and the accompanying affidavit were both dated 4 February 2020. The plaintiff contended that the statutory demand and accompanying affidavit were received by it on 7 February 2020 by express post. If that be the case, then this application pursuant to s 459G of the Corporations Act 2001 (Cth) is within time. However, the defendant contends that service was effected by email transmission on 4 February 2020. If I were to rule that that be the case, the plaintiff’s s 459G application would be out of time.

1. The email transmission from Alvin Tan, of the defendant, was addressed to two officers of the plaintiff and to others involved in the plaintiff, together with members of a real estate agency.  It set out as follows:

Hi – Mark, Brett, Linda & Kylie

Please find the attachment with form 7 statutory demand letter, I signed them and sent the two documents to you by express post.  Could you let me know once you received it?

…

The attachment included the statutory demand and the accompanying affidavit in pdf form.  However, the attachments also included a number of photographs depicting the express post envelope and what appears to be the process of posting the same. 

1. The defendant contends that service was effected by email transmission and relies upon the decision of Sifris J in Chen v Kornucopia Pty Ltd (No 1) (‘Kornucopia’).[1]   Counsel for the defendant submitted that I was bound to follow the decision by Sifris J.  Even assuming that I am bound to follow or have regard to, by reason of comity, the judgment of Sifris J in Kornucopia,[2]  the facts are clearly distinguishable.  In Kornucopia, Sifris J had before him a number of statutory demands which were claimed not to have been received.  After analysis, Sifris J held that with respect to each demand, the company had not ‘adduced “proof to the contrary”’[3] for the purposes of s 29(1) of the Acts Interpretation Act 1901 (Cth).

   [1][2019] VSC 756 (‘Kornucopia’). 

   [2]Slap Corporation Pty Ltd v Civil, Infrastructure & Logistics Pty Ltd (2017) 50 VR 542, 560–1 [71]–[72].

   [3]Kornucopia (n 1) [72].

1. The AGV demand which had been served by Madgwicks was returned by Australia Post to Madgwicks.  Having already determined that AGV had not ‘adduced “proof to the contrary”’[4] for the purposes of s 29(1) of the Acts Interpretation Act 1901 (Cth), Sifris J then turned to consider service by an email transmission and concluded that it constituted valid service. His Honour was satisfied that the email constituted ‘effective informal service of the AGV demand’.[5] 

   [4]Ibid.

   [5]Ibid [95].

1. His Honour was not considering if one form of service was preferable over another.  It is clear that the email service was considered ‘informal service’ and his Honour was only required to consider the effectiveness of the email service in the event that his conclusion with respect to service by post might be wrong.  That is not the case in this proceeding. 

1. In David Grant & Co Pty Ltd v Westpac Banking Corporation,[6] the High Court determined that the strict time limits within which a s 459G application could be made were immutable.[7] 

   [6](1995) 184 CLR 265.

   [7]Ibid 276–8.

1. For the purposes of the ruling, I do not need to consider when the email was opened. Service by post is never effected on the day of posting. Section 29(1) of the Acts Interpretation Act 1901 (Cth) sets out that service ‘shall be deemed … unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post’. Section 160(1) of the Evidence Act 2008 (Vic) presumes that the documents posted are ‘received at that address on the fourth working day after having been posted’.

1. An email transmission on day one will inevitably be received by the company earlier than a pre‑paid letter posted on the same day.  Although, there may be some circumstances where it is appropriate to consider whether the email transmission constitutes effective informal service, this is not one of those.  To allow the defendant to rely upon ‘service’ by the email transmission would in these circumstances make a mockery of the strict time limits imposed by the regime.  To allow otherwise would be to erode the certainties imposed by the regime and would lead to patent unfairness in circumstances where the time limits are immutable. 

1. Accordingly, I rule that service was effected on 7 February 2020.