Esperance Cattle Company Pty Ltd v Mills Oakley Lawyers (A Partnership)
[2016] WASC 283
•5 SEPTEMBER 2016
ESPERANCE CATTLE COMPANY PTY LTD -v- MILLS OAKLEY LAWYERS (A PARTNERSHIP) [2016] WASC 283
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 283 | |
| 05/09/2016 | |||
| Case No: | COR:28/2016 | 31 AUGUST 2016 | |
| Coram: | MASTER SANDERSON | 31/08/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ESPERANCE CATTLE COMPANY PTY LTD MILLS OAKLEY LAWYERS (A PARTNERSHIP) |
Catchwords: | Corporation law Application to set aside statutory demand Turns on own facts |
Legislation: | Acts Interpretation Act 1901 (Cth) Corporations Act 2001 (Cth) |
Case References: | Bellway Corporation Pty Ltd v Ausdrill Ltd (1995) 13 ACLC 1663 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MILLS OAKLEY LAWYERS (A PARTNERSHIP)
Defendant
Catchwords:
Corporation law - Application to set aside statutory demand - Turns on own facts
Legislation:
Acts Interpretation Act 1901 (Cth)
Corporations Act 2001 (Cth)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr S Blair
Defendant : Mr A D McDonald
Solicitors:
Plaintiff : In person as a director of the plaintiff
Defendant : Pragma Legal
Case(s) referred to in judgment(s):
Bellway Corporation Pty Ltd v Ausdrill Ltd (1995) 13 ACLC 1663
1 MASTER SANDERSON: This was the plaintiff's application to set aside a statutory demand. When the matter was called on Mr Stephen Blair a director of the plaintiff appeared and sought an adjournment of the application. I pointed out to Mr Blair a company needed to be represented by solicitors. He clearly was not aware that was the case. In any event I listened to his reasons why the matter should be adjourned.
2 In essence the plaintiff is not presently in a position to pay solicitors. That may change in the next few weeks when settlement of unrelated proceedings may free funds and allow the company to engage solicitors. All of this was explained by Mr Blair from the bar table. There was no affidavit in support of the adjournment application and the details were necessarily sketchy.
3 The application for the adjournment was opposed by the defendant. I refused the adjournment and gave brief oral reasons for doing so. However, as the consequences for the plaintiff are significant I indicated I would publish reasons for refusing the adjournment. I also indicated I would dismiss the application setting aside the statutory demand. These are my reasons for both decisions.
4 What Mr Blair had to say about the impecuniosity of the plaintiff really was of no consequence when the adjournment was being considered. The application has been on foot for some time and has been adjourned once at the request of the defendant. Nonetheless there was nothing Mr Blair had to say that led me to the conclusion that the interests of justice would be advanced by adjourning the matter. That was particularly so when on any fair reading of the papers which had been filed the plaintiff's application could not succeed.
5 Turning then to the application itself. It was supported by a lengthy affidavit sworn by Mr Blair on 10 February 2016. At that time the plaintiff was represented by solicitors. Consent orders were made on1 March 2016, 15 March 2016 and 13 April 2016 and a number of affidavits were filed by the defendant in opposition to the application. The first of these was an affidavit of Mark Bland sworn 11 May 2016.
6 For present purposes it is unnecessary to set out the statutory demand itself in any detail. It is sufficient if I say the defendant claimed an amount of $423,929.26 which it says it was owed as legal fees.
7 In his affidavit in support of the application Mr Blair raised the question of the service of the statutory demand. This was a matter taken up by the defendant who alleged that the application to set aside the statutory demand was not served within the 21 days required by the Act. The relevant uncontested facts were these.
8 As at 13 January 2016 the plaintiff's registered office was 'Young River Station' 7877 South Coast Highway Munglinup. Mr Blair was the sole secretary of the plaintiff. The statutory demand was sent by priority prepaid post to the registered office on Wednesday, 13 January 2016. The defendant says the ordinary course of post for an envelope sent by priority prepaid post interstate and to the country is 'up to 4 business days'. Evidence to that effect is given by Nicholas Francis Malone in an affidavit sworn 16 June 2016. Attachment NF2 to Mr Malone's affidavit is a printout from the Australia Post website which provides that information. There is no reason to doubt the information is correct.
9 The defendant also relied on an affidavit of Noel David Smith sworn 17 June 2016. Mr Smith is a mail contractor in the employ of Australia Post. His job requires him to pick up mail from the Esperance Delivery Centre situated at 31A Simpson Street, Esperance and deliver it to the addressee.
10 Mr Smith says mail is delivered to customers in Munglinup from the Esperance Delivery Centre personally either on Tuesdays or Fridays. He says in or around early January 2016 he received a telephone call from Mr Blair. He knew Mr Blair personally. During the course of the conversation Mr Smith says Mr Blair said words to the effect 'we have had a few legal wrangles you may have heard of'. Mr Blair then instructed Mr Smith to 'hold all mail' in the delivery centre for pick up. Mr Smith says he believes the telephone call took place prior to 15 January 2016.
11 The mail for the plaintiff started to build up at the Esperance Delivery Centre. Mr Smith contacted Mr Blair on a number of occasions advising him he was in possession of mail and asking it be collected. After a month or so the mail was returned to sender.
12 All of that goes to explain why Mr Blair did not receive this statutory demand. Mr Blair in his capacity as an officer of the plaintiff was responsible for his own difficulties.
13 Service by post of documents on a company is authorised by s 109X(1)(a) of the Corporations Act 2001 (Cth). That section then feeds into s 29(1) of the Acts Interpretation Act 1901 (Cth) That section reads as follows:
(1) Where an Act authorizes or requires any document to be served by post, whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, 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.
14 Based upon the evidence provided by the defendant service was deemed effected on 17 January 2016. That day was a Sunday so service would be deemed to have been effected on Monday, 18 January 2016. Assuming Mr Smith had not been instructed to retain the mail and had delivered it in the normal course it would have been served on Tuesday, 19 January 2016. The application to set aside the statutory demand was filed on 11 February 2016. By any measure it was outside the 21 day period and the application was incompetent.
15 It is true that the plaintiff did not receive the statutory demand on the date which pursuant to the Act is deemed to be received. On Mr Blair's affidavit it was received sometime later and evidence on this point can be accepted. But evidence of non-receipt is not sufficient to prove non-delivery. In Bellway Corporation Pty Ltd v Ausdrill Ltd (1995) 13 ACLC 1663 a demand was correctly served by post to a company's registered office but was not received by the company because of an arrangement between the company and the post office for the diversion of mail. Owen J held that service was nonetheless effective. After explaining the importance of the requirement for a company to have a registered office Owen J explained the principle in the following terms (at 1668):
Service may be by post. The arrangement (quite properly) entered into between the occupier and the post office means that in the normal course of business a letter properly addressed and posted by pre-paid post to the applicant at its registered office would not usually be taken by an employee or contractor of Australia Post and physically deposited by that person at the registered office. That is not something of which a person in the position of the respondent creditor could or would have notice. It seems to me therefore that the term 'ordinary course of post', for the purposes of the deeming provision, ought to include a methodological (as well as a temporal) application. It should relate to the ordinary course of post as it affects the company to whom the letter was addressed. If this were not so it would be unwise for any person wishing to deal with a company to effect service by post because the person would never know whether some arrangement had intervened that would inevitably prevent reliance on the deeming provision. I accept that this would only arise where the company puts the question of service in issue. However, I do not believe that the legislature would have intended service by post to be limited in this way.
16 In the circumstances then apart from a lack of intrinsic merit in the adjournment application there would have been no point in granting such an application. The plaintiff was bound to fail. Accordingly, I dismissed the application to set aside the statutory demand and ordered the plaintiff pay the defendant's costs including the reserved costs.
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