In the matter of MJ Payne Pty Ltd

[2012] NSWSC 599

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of MJ Payne Pty Ltd [2012] NSWSC 599
Hearing dates:	7 May 2012
Decision date:	07 May 2012
Jurisdiction:	Equity Division - Corporations List
Before:	Brereton J
Decision:	Proceedings dismissed with costs
Catchwords:	CORPORATIONS - winding up - statutory demand - application for orders setting aside - validity of service of application and supporting affidavit - unsealed originating process served - sealed originating process and supporting affidavit served outside 21 day period.
Legislation Cited:	Corporations Act s 459G, s 459J
Cases Cited:	Austar Finance v Campbell [2007] NSWSC1493 David Grant and Company v Westpac Banking Corporation (1995) 184 CLR 265
Category:	Principal judgment
Parties:	MJ Payne Pty Ltd (plaintiff/applicant) Margaret Helen Hinde (first defendant) Almarah Pty Ltd (second defendant)
Representation:	C Ireland (plaintiff/applicant) G George (defendants) O'Sullivan Saddington (plaintiff/applicant) Reimer Winter Williamson (defendants)
File Number(s):	2012/ 97997

Judgment (ex tempore)

1. HIS HONOUR: By Originating Process filed on 27 March 2012 the plaintiff M J Payne Pty Ltd seeks orders pursuant to (Cth) Corporations Act 2001, s 459G and s 459J, setting aside a Creditor's Statutory Demand served by the defendants Margaret Ellen Hinde and Almarah Pty Ltd dated 1 March 2012, on the grounds that they are not debts owed to one person but debts owed to the first and second defendants separately. Alternatively, the Originating Process purports to seek an instalment order in respect of the debts in the Demand.

1. The defendants object that the Originating Process was not filed and served within the time limited by s 459G, which provides as follows:

459G Company may apply

(1) A company may apply to the Court for an order setting aside a statutory demand served on the company.

(2) An application may only be made within 21 days after the demand is so served.

(3) An application is made in accordance with this section only if, within those 21 days:

(a) an affidavit supporting the application is filed with the Court; and

(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.

1. The essential facts are that the Statutory Demand was served, it would seem, on 9 March 2012. On 27 March 2012, at 15:45, the plaintiff's solicitors forwarded by facsimile to the Registry an Originating Process dated that date and signed by the plaintiff's solicitor, together with an affidavit of Graham Payne sworn 27 March 2012, which is relied on as the affidavit supporting the application required by s 459G(3)(a). Some time after 15:45, but still on 27 March 2012, those facsimile documents were apparently 'filed' in the Registry as evidenced by the affixation of the seal of the Court dated 27 March 2012 to each of them. At 15:57, the plaintiff's solicitors sent by facsimile to the defendants' solicitors, which was the address for service named in the Statutory Demand, a facsimile which attached the letter to the Registrar enclosing the Originating Process and Mr Payne's affidavit for filing, together with an unfiled copy of the Originating Process and of Mr Payne's affidavit.

1. The defendants' solicitors did not receive sealed copies of the Originating Process and affidavit from the court until 13 April 2012, and then sent them by facsimile to the plaintiff's solicitor on 16 April 2012.

1. It is not suggested that service on 16 April 2012 can be relied on as sufficient compliance with s 459G(3). The fundamental point is whether service of the application on 27 March 2012 was sufficient compliance with s 459G(3)(b), it being well established that compliance with that provision goes to jurisdiction [David Grant and Company v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265].

1. The document as served did not bear the seal of the court, it did not bear a return date and was not a copy of a document that had been filed in the Registry. To my mind it matters not that it is conceivable, although not clear, that the seal might have been affixed to the document forwarded to the Registry prior to the time at which the copy was transmitted by facsimile to the plaintiff's solicitors. This is because what was "served" was a copy of a draft application, not a copy of an application. As Austin J explained in Austar Finance v Campbell [2007] NSWSC1493 at [28] - [29], there is no application, and no application has been made, until it is filed. The recipient of an application would have no way of knowing whether or not it had been filed unless it bore the seal of the court. It is very well conventionally established that for there to be good service of process, a sealed copy of the process filed in the Registry must be served.

1. It is true that in Austar the purported service took place on any view before the documents had been filed in the Registry, but to my mind that does not mean that service, shortly after documents are forwarded to the Registry, of copies of them in unfiled form amounts to service of an application. While the position might be more ambiguous in an ordinary case in respect of an affidavit, because of the provision of the rules to the effect that affidavits need not be filed before being served, in the case of s 459G the requirement is that the affidavit be filed as well as being served, and to my mind it is even clearer that what is served must be a copy of the filed and sealed application and affidavit, not just a copy of the document that the solicitors have forwarded for filing.

1. It follows that in my opinion there was no service in compliance with s 459G(3)(b) in this case, and that the Originating Process is therefore doomed to fail.

1. It should not be assumed that I would accept in any event that the process of filing by facsimile or service by facsimile would have amounted to good filing or good service in accordance with the rules of court, but resolution of that can await an occasion when it is decisive.

1. I order that the Originating Process be dismissed with costs.

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Decision last updated: 05 July 2012