Giustginiano Nominees Pty Ltd v Redan Pty Ltd

[1999] WASC 95

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   GIUSTGINIANO NOMINEES PTY LTD -v- REDAN PTY LTD [1999] WASC 95

CORAM:   MASTER BREDMEYER

HEARD:   14 JULY 1999

DELIVERED          :   14 JULY 1999

FILE NO/S:   COR 137 of 1999

BETWEEN:   GIUSTGINIANO NOMINEES PTY LTD (ACN  008 857 583)

Applicant

AND

REDAN PTY LTD (ACN 009 285 643)
Respondent

Catchwords:

Corporations - Service of statutory demand upon corporation by registered mail - Post Office card left - Letter not collected - Demand not delivered - Inadequate service

Legislation:

Corporations Law s 109X, s 109Y

Result:

Service ruled invalid

Representation:

Counsel:

Applicant:     Mr P J Hannan

Respondent:     Mr D B Shaw

Solicitors:

Applicant:     Mony De Kerloy

Respondent:     Bennett & Co

Case(s) referred to in judgment(s):

Bellway Corporation Ltd v Ausdrill Ltd (1995) 13 ACLC 1663

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Thomas v Johnson (1979) ANZ Conv R 160

Case(s) also cited:

Brady v Millgate (1965) 82 WN (NSW) (Pt 1) 282

Capper v Thorpe (1998) 153 ALR 1

CFC Corporation Pty Ltd v Lanier (Australia) Pty Ltd (1994) 12 ACLC 1

DFCT v Barroleg Pty Ltd (1997) 15 ACLC 1451

FP Leonard Advertising v KD Travel Service Pty Ltd (1993) 11 ACLC 1203

Re Amanatidis Holdings Pty Ltd (1991) 9 ACLC 507

1. MASTER BREDMEYER : I need to decide whether the statutory demand in this case was served properly on the company.  The relevant facts are the demand was mailed by registered mail to the company addressed to the company at its registered office, 13 Rule Street, North Fremantle on 1 May 1999.  It was received by the Post Office's Palmyra Delivery Centre on 3 May.  A postal officer attempted to serve it that day at 13 Rule Street without success.  There was no‑one there to sign for it.  He left a card saying that a registered item was awaiting collection at the North Fremantle Licensed Post Office.  A second card was sent or left at the premises on 13 May saying the same thing.  The letter was not collected and was returned to the sender on 2 June.  Mr Hooper, for the respondent, has deposed that he did not receive the demand. 

2. The relevant statute provisions are s 109X and s 109Y of the Corporations Law:

   "109X(1)(b)

   For the purposes of any provision of this Law that requires or permits a document to be served on a person … the document may be served on a company … by leaving it at, or posting it to, the company's registered office."

   "109Y Meaning of service by post

   Where a provision of this Law authorises 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:

   (a)the service is taken to be effected by properly addressing and posting (under prepaid post) the document as a letter to the last known address of the person to be served; and

   (b)unless the contrary is proved, the service is taken to have been effected at the time at which the letter would have been delivered in the ordinary course of post."

3. For the sake of completion I also quote s 142(1) of the Law:

   "A company must have a registered office in Australia.  Communications and notices to the company may be addressed to its registered office."

4. The applicant in detailed and helpful submissions relies on Thomas v Johnson (1979) ANZ Conv R 160, Bellway Corporation Ltd v Ausdrill Ltd (1995) 13 ACLC 1663 and other cases. Thomas v Johnson is a correct decision, but it turns on its own facts.  In that case in a remote area of New South Wales, delivery in the ordinary course of post was held to mean leaving a card at the letterbox and allowing four days for the recipient to come and collect the letter from the Post Office.  The Judge fashioned a reasonable rule to give meaning to delivery in the ordinary course of post in that remote area where no other form of postal delivery was made.  He fashioned a rule to give the creditor the benefit of the deeming provision of delivery in the ordinary course of post.

5. I am not prepared to do that in this case.  Service by registered mail is not the only way a letter can be sent by post to this company in Fremantle.  It can be sent by ordinary post, in which case the letter is physically delivered.  In this case I consider using registered mail and leaving a card and allowing a day or two for the recipient to go to the post office and collect the letter, is not "delivery in the ordinary course of post".  It is something else.  It is not "delivery" of the letter and it is not in the "ordinary course of post".  It is extraordinary or special.

6. Moreover, I consider the respondent has proved non‑service.  Section 109(Y)(b) states:

   "unless the contrary is proved, the service is taken to have been effected at the time at which the letter would have been delivered in the ordinary course of post."

   The respondent's evidence that he did not get it, would not in my view outweigh the deeming provision of this subsection if the letter was sent in the ordinary course of post.  But actual evidence of non‑delivery ‑ the letter returned in the post ‑ does.  In expressing that view I am consistent with what was said by the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87. In that case the High Court held service of the notices was good. There was no arguable defence over the adequacy of service. The notices were sent to the company at care of Post Office, Sapphire, Queensland. The company directors deposed that they did not get the notices. That was not enough to displace the presumption of the section. The High Court said at 95 that "the notices were not returned undelivered and there was no other circumstances which suggested that they did not reach their destination." In the case before me the letter was returned to sender undelivered.

7. In this case I rule that service of the statutory demand was not effective.