In the Matter of Idem Australia Pty Ltd Idem Australia Pty Ltd v Fuji Xerox Australia Pty Ltd

[1996] FCA 973

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY       )    No. VG 3511 of 1996

)

GENERAL DIVISION                 )

IN THE MATTER OF IDEM AUSTRALIA PTY LTD (ACN 054 740 359)

BETWEEN:  IDEM AUSTRALIA PTY LTD

(ACN 054 740 359)

(Applicant)

AND:     FUJI XEROX AUSTRALIA PTY LTD

(ACN 000 341 819)

(Respondent)

CORAM:    Ryan J

DATE:     6 November 1996

PLACE:    Melbourne

REASONS FOR JUDGMENT

RYAN J:   I am satisfied on the evidence that the statutory demand was served, as Mr Edwards has deposed, at the registered office of the company at about 4.30pm on 29 August 1996.  It is indisputable that the statutory demand and accompanying affidavit was received at the office of Rucker Mackenzie Pty at some time between 29 August and 30 August because on 30 August it was entered into Rucker Mackenzie's mail book and despatched from there by ordinary post to the company's place of business.

Ms Butler, the receptionist to Rucker Mackenzie, has deposed that she has no recollection of meeting Mr Edwards or receiving the statutory demand at any time on the afternoon of 29 August.  However, she does not claim to have any recollection of seeing Mr Edwards or receiving the document at any time on the following day yet she is able to establish by reference to written records that the statutory demand was recorded in Rucker Mackenzie's mail book on 30 August.

In my view the inference is equally open, on Ms Butler's evidence, that the statutory demand was received at or about 4.30pm on 29 August after the outgoing mail had been collated and the mail book written up so that it was decided to hold it over for entry into the mail book and despatch by post on the next day.  That inference is not precluded by anything in the evidence of Mr Johnson who was apparently the principal of Rucker Mackenzie and, in the light of the unequivocal assertion of Mr Edwards, it is the inference which the balance of probabilities leads me to draw.

I interpolate that the apparent discrepancy between a statement in a letter written by Mr Stents, the solicitor for the respondent, and the affidavit of service of Mr Edwards has been satisfactorily explained by an affidavit of Mr Stents sworn 6 November 1996 in which he indicates that the assertion in his letter was based on a telephone conversation that he had with Mr Edwards before he received detailed instructions and prepared the affidavit of service.

It was argued by Mr Glacken of Counsel who appeared for the applicant that service of a document such as the present statutory demand is effected at the moment which it might reasonably be expected to come to the notice of the person intended to receive it, in this case the company. He referred to s 217 of the Corporations Law which provides:

A company shall, as from its registration day, have a registered office within Australia to which all communications and notices may be addressed and which shall be open:

(a)where a notice has been lodged by the company under subsection 218(2) - for such hours (being not less than 3) between the hours of 9 a.m. and 5 p.m. of each business day as are specified in the later of that notice or a notice lodged by the company under subsection 218(4); or

(b)otherwise - for not less than 5 hours between 10 a.m. and 4 p.m. of each business day.

Reference was then made to evidence of successive returns filed on behalf of the applicant company at the office of the Australian Securities Commission which indicate that no election was made to specify, as contemplated by s 217(a), that the registered office was to be open for any particular spread of hours being not less than three between 9 am and 5 pm of each business day.

Accordingly it was submitted that the hours during which the office of the company should be regarded as open were between 10 am and 4 pm of each business day as contemplated by s 217(b). From that premise it was argued that if, as I have found, the statutory declaration was left at the registered office of the company at 4.30 pm on the twenty-nineth service of it should not be regarded as having been effected until 30 August being the next period when the registered office could, on the evidence, be regarded as open for business.

What I regard as the primary fallacy in that argument is that s 217 does not provide a mechanism by which the registered office of a company is deemed to be open for any particular period. It simply imposes a mandatory obligation on a company to keep its registered office open for not less than three hours on each business day between the hours of 9 am and 5 pm and stipulates that, unless such minimum hours are specified in the appropriate notice, the obligation is on the company to keep its registered office open for not less than five hours between 10 am and 4 pm of each business day.

Those minimum obligations do not exist in the resolution of the purely factual question of the actual hours during which a registered office of a particular company is open. On the evidence in the present case I find that the registered office of this company at the office of Rucker Mackenzie Pty was open at the time when the statutory demand was served. It accordingly, is unnecessary to consider whether, had the document been left at that office at a time at which it was not open, when service would be regarded as having been effected for the purposes of s 459E of the Corporations Law.

In this context I adopt what is said by Sheppard J in Golden Orchid Pty Ltd v Comax 17 ACSR 442, where his Honour at p 445 said:

The authorities in this area are numerous.  In the view I take of the matter it is sufficient to refer principally to the decision of McLelland CJ in Eq in Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559; 13 ACSR 129. There a statutory demand was left at the registered office of the debtor company which was the office of a firm of accountants. In fact the accountants had had no contact with
the company for several years.  Mail for the company passed on by the accountants to an address they had been given for the company had been returned unclaimed.  His Honour held (at 565) that the service was good because it was effected in conformity with the provisions of s 220 of the Law.

I find nothing to contradict the conclusion to which I have come in the observations of Whitlam J in Cornick Pty Ltd v Brains Master Corporation 19 ACSR 20. In that case his Honour rejected a submission that s 220(1) of the Corporations Law requires that service may only be effected between 9 am and 5 pm at a time when the office is open. His Honour said at p 21:

... there is no provision requiring service to be effected when the registered office is open and, in my view, no such qualification or gloss needs to be placed on the express language of s 220(1). A company which has not notified its opening hours might choose to close at any time between 10am and 4pm which might vary on any business day. It cannot be supposed that a document could not be served by leaving it at the office during such a closure which might extend up to 60 minutes. Further, how might service be effected where a company fails to keep its registered office open in compliance with CL s 217? There is no provision deeming the office to be open for the purposes of s 220(1). Indeed, there is no good reason that springs to mind why service should be confined to business days. The important thing is that service is effected at the address notified by the company. Section 100 of the Law requires detailed specification of such address. Service at a nominated room situated on a specified floor or level of a building may, of course, pose practical problems for access during certain hours. Service after 5pm or on a nonbusiness day may fairly be expected to come to the attention of a company on the next business day.

Those observations, some of which are clearly dicta, may raise a question as to when the leaving of a document at a registered office at hours during which the office was clearly not open for business can be regarded as having effected service.  However, because of the conclusion that I have reached that this document was left at the registered office of the company at a time when that office was open, it is unnecessary for me to consider that question.  Accordingly, I find that the service of the statutory demand was effected at or about 4.30 pm on 29 August 1996, and the filing and service of the application to set it aside and the affidavit in support thereof was therefore out of time.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of His Honour Justice Ryan.

Associate:

Date:

Counsel for the Applicant    :  Mr S.A. Glacken

Solicitors for the Applicant :  Messrs Russo Pellicano Carlei

Counsel for the Respondent   :  Mr J.A. Nolan

Solicitors for the Respondent  : Minter Ellison

Date of Hearing             :  6 November 1996

Date of Judgment            :  6 November 1996