EMA (Aust) Pty Ltd v. FP Leonard Advertising Pty Ltd

[2008] QSC 129

[2008] QSC 129

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MCMURDO J

No 701 of 2008

EMA (AUST) PTY LTD ACN 108 228 708	Applicant
and
F P LEONARD ADVERTISING PTY LTD ACN 000 267 649	Respondent

BRISBANE

..DATE 14/05/2008

ORDER

HIS HONOUR:  This is an application to set aside a statutory demand.  The respondent to the application raises a threshold question of jurisdiction.  The respondent says that the application was filed and served outside the prescribed 21 days.  It seems to be common ground that it was filed and served on 29 January 2008. 

The dispute is as to the date of commencement of the 21 day period, that is the date of the service of the statutory demand.  The respondent says that it was served on 3 January 2008.  The applicant says that it was served on 9 January 2008.  As I think the lawyer appearing for the applicant ultimately accepted the onus is upon the applicant in this respect.  This is a matter going to jurisdiction and the applicant must establish the factual basis for that jurisdiction.

For reasons I am about to state in my conclusion that onus has not been discharged.  Indeed, in my conclusion, it is more probable than not that this demand was served on 3 January and therefore this application is made out of time. 

I go first to the evidence relied upon by the respondent.  There is an affidavit sworn by Mr P L Grogan in which Mr Grogan says that he served the demand, the affidavit accompanying the demand and a letter dated 14 December upon the applicant by handing those documents to Rebecca Jones at the registered office of the applicant which was a firm of accountants in Spring Hill.  He exhibits copies of the demand and affidavit accompanying that demand.  Significantly he swore this affidavit on 7 January 2008. 

The respondent further relies upon an affidavit of Ellen Sefton, a solicitor employed by the solicitors acting on behalf of the respondent.  According to that affidavit the material, being a letter from her firm of 14 December 2007, the statutory demand and the affidavit with the demand were not mailed to the registered office, but were put in the hands of the process server.  That matter is significant because the only copy of that letter which is exhibited is one which bears the words "by mail".  That is exhibited to an affidavit of Ms Jones.  But that letter also bears the stamp "service copy".  There is a further affidavit of Ms Sefton's which exhibits what appears to be a contemporaneous record made by Mr Grogan of his service of these documents.  That records service of the documents at this place on 3 January. 

The applicant's evidence is an affidavit by Ms Jones who is an employee of those accountants whose office is the registered office of the applicant.  This is an affidavit sworn on 12 May 2008.  In paragraph 5 Ms Jones says, "I cannot recall whether Philip Lesley Grogan served the statutory demand and supporting affidavit on 3 January 2008 as deposed to by Philip Lesley Grogan."  That is not a denial that Mr Grogan then served that material.  It is simply a statement of the absence of a recollection as to whether he did so or not. 

Then in the next paragraph of her affidavit Ms Jones swears that she does not recall ever signing a document acknowledging receipt of that material.  It appears to be the case that she did not sign such a document.  It was argued that that is significant.  It would be unusual, it was said, for a process server not to obtain such a signature acknowledging receipt.  That is a submission to be considered along with others that I do not think that it is a critical matter.

Then Ms Jones swears that she does recall receiving what she describes as "another set of documents" on 9 January 2008.  They are the documents which she exhibits as a copy of the letter from the solicitors dated 14 December 2007 with a copy of the statutory demand and the affidavit supporting it.  On that letter of 14 December she says she applied a receipt stamp and that stamp showed the date 9 January 2007, but she made a handwritten change so that it read 9 January 2008. 

The point has been argued without either side requiring any relevant witness for cross-examination.  It was open to either side to do so but each has preferred to argue the point simply on the basis of the written evidence.  There are a few things about Ms Jones's affidavit that leave me unpersuaded that these documents were served on 9th January rather than 3rd January.  One of those has been mentioned already: it is the fact that Ms Jones was unable to swear that she did not receive documents on 3 January, rather she simply could not recall whether she had then received them or not.

Another is that it is possible that the documents were received on 3 January but for reasons of some oversight or other documents being left on top of them or something like that, they were not noticed by her until 9 January when she then applied the receipt stamp.  In other words, there is a real prospect that she is truly of the belief that they were served on 9 January but that in truth they were served on 3rd January. 

The evidence in support of the respondent's position is strong.  There is a contemporaneous note made by the process server and his affidavit was sworn on 7 January.  For these reasons, the relevant onus has not been discharged and the application to set aside the statutory demand is one which cannot be allowed. 

That application will be dismissed and subject to any further submission the applicant must pay the respondent's costs of this application to be assessed.  Do you have a submission about that, Mr Fisher?  Can you resist costs?

...

HIS HONOUR:  They will be the orders.

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