Energy Conservation Systems Pty Ltd v Downer EDI Engineering Electrical Pty Ltd - [2008] NSWSC 1139

Reported Decision:
221 FLR 393

New South Wales

Supreme Court

CITATION: Energy Conservation Systems Pty Ltd v Downer EDI Engineering Electrical Pty Ltd [2008] NSWSC 1139

HEARING DATE(S): 27/10/08

JUDGMENT DATE :
28 October 2008

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Proceedings dismissed with costs

CATCHWORDS: CORPORATIONS - winding up - statutory demand - application for order setting aside - whether application served on company that issued the demand - application sent to address in Queensland that was not that company's registered office - applicability of Service and Execution of Process Act 1992 (Cth)

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 109X(1), (2), (3), 459G
Service and Execution of Process Act 1992 (Cth), ss 3(1), 9, 15(1), 15(3), 16

CATEGORY: Principal judgment

CASES CITED: Elan Copra Trading Pty Ltd v JK International Pty Ltd [2005] SASC 501; (2005) 195 FLR 229
Italiano v Carbone [2005] NSWCA 177
Marlan Financial Services Pty Ltd v New England Agricultural Traders Pty Ltd [1999] VSC 435; (1999) 158 FLR 256

PARTIES: Energy Conservation Systems Pty Limited - Plaintiff
Downer EDI Engineering Electrical Pty Limited - Defendant

FILE NUMBER(S): SC 3837/08

COUNSEL: Mr R G Forster SC - Plaintiff
Mr J Ratanatray - Defendant

SOLICITORS: Arnold Bloch Leibler - Plaintiff
Birch & Co by their Sydney Agents Makinson & d'Apice - Defendant

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

Barrett J

Tuesday 28 October 2008

3837/08 ENERGY CONSERVATION SYSTEMS PTY LIMITED v DOWNER EDI ENGINEERING ELECTRICAL PTY LIMITED

Judgment

1 The question before me is whether the plaintiff's application under s 459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand and a copy of the affidavit in support were served on the defendant in accordance with s 459G(2).

2 The question goes not to the time of service but to whether there was service at all.

3 The statutory demand which is the subject of the s 459G application was served at the plaintiff's registered office. The registered office is in Victoria. The statutory demand stated in its paragraph 6 an address of the defendant for service of any s 459G application and affidavit. The address given was an address in Melbourne. This was in conformity with the requirement in Form 509H that this address for service be in the State or Territory in which the statutory demand was served.

4 The plaintiff did not, however, attempt to serve the s 459G application and supporting affidavit at the Melbourne address specified in the statutory demand. Rather, it faxed them to – and later sent them by post to – an address at Mt Gravatt in suburban Brisbane. To be more precise, a copy of the application and part of the affidavit were faxed and the whole of each was later sent by post to the Mt Gravatt address.

5 It is not disputed by the defendant that that address was one at which it could be reached,…

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: [2008] NSWSC 1139
Decision Date: 28 October 2008

CaseChat Overview and Summary

The case before the court involved Energy Conservation Systems Pty Ltd, which sought to set aside a statutory demand issued by Downer EDI Engineering Electrical Pty Ltd. The dispute centred on whether the application to set aside the statutory demand had been properly served, specifically whether it was served on the company that issued the demand. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue the court had to resolve was whether the application to set aside the statutory demand had been validly served on Downer EDI Engineering Electrical Pty Ltd. The court had to consider the requirements for valid service under the Service and Execution of Process Act 1992 (Cth). The application was sent to an address in Queensland, which was not the registered office of Downer EDI Engineering Electrical Pty Ltd. The court needed to determine whether this constituted valid service under the Act.

In examining the requirements for service under the Act, the court held that the application was not validly served as it was not delivered to the company at its registered office. The court emphasised the importance of serving process at the company's registered office, as mandated by the Act. Consequently, the application to set aside the statutory demand was deemed invalid. The court dismissed the application, holding that the service of the application did not comply with the statutory requirements.

No further orders were made by the court, as the primary issue of invalid service led to the dismissal of the application. The statutory demand remained in effect, leaving Energy Conservation Systems Pty Ltd without a remedy to set it aside.

Orders