In the matter of Riverina Solar Pty Ltd

Case •

[2024] NSWSC 480

•

30 April 2024

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: In the matter of Riverina Solar Pty Ltd [2024] NSWSC 480
Hearing dates: 27 October 2023
Date of orders: 30 April 2024
Decision date: 30 April 2024
Jurisdiction:Equity - Corporations List
Before: Williams J
Decision:

See [101]-[102] below.

Catchwords:

CORPORATIONS – Service of application to set aside statutory demand under s 459G of the Corporations Act 2001 (Cth) – Where plaintiff initiated proceedings in Supreme Court of Queensland to set aside statutory demand – Where statutory demand nominated an address of solicitors in New South Wales as the address for service on the creditor of any s 459G application - Where plaintiff’s solicitors sent an email to the email address of those solicitors attaching a copy of the initiating process together with the supporting affidavit and notice under s 16 of the Service and Execution of Process Act 1992 (Cth) – Where email sent and received shortly before midnight on the last day of the 21-day statutory period under s 459G – Whether email constituted effective service of statutory demand – Whether s 600G of the Corporations Act 2001 (Cth), as in force at the time, applied to service of applications under s 459G of that Act – Whether service by electronic communication permissible under Service and Execution of Process Act 1992 (Cth)

STATUTORY INTERPRETATION – Corporations Act 2001 (Cth), s 600G - Service and Execution of Process Act 1992 (Cth), s 15(3) and s 9

Legislation Cited:

Acts Interpretation Act 1901 (Cth), s 13

Corporations Act 2001 (Cth), ss 9, 105A, 105B, 109X, 459A, 459B, 459C, 459E, 459G, 583, 600G, 601CX

Corporations Amendment (Corporate Insolvency Reforms) Act 2020 (Cth)

Corporations Amendment (Insolvency) Act 2007 (Cth)

Insolvency Law Reform Act 2016 (Cth)

Service and Execution of Process Act 1992 (Cth), ss 9, 15, 16

Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023 (Cth)

Cases Cited:

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17

Energy Conservation Systems Pty Ltd v Downer EDI Engineering Electrical Pty Ltd (2008) 221 FLR 393; [2008] NSWSC 1139

Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134

In the matter of Bioaction Pty Ltd (2022) 402 ALR 542; [2022] FCA 436

In the matter of Black Tie Holdings Pty Ltd (2022) 162 ACSR 452; [2022] NSWSC 781

Maybury v Plowman (1913) 16 CLR 468; [1913] HCA 43

MHC Pathology Pty Ltd v Midvale Trial Pty Ltd [2020] VSC 789

R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155

Ragless v District Council of Prospect [1922] SASR 299

Re International Materials & Technologies Pty Ltd (2013) 282 FLR 362; [2013] NSWSC 787

Sandys Swim Pty Ltd v Morgan [2022] FCA 1574

Texts Cited:

P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters)

Category:Principal judgment
Parties: Riverina Solar Pty Ltd (Plaintiff)
Tellhow International Engineering & Contracting Co., Ltd (Defendant)
Representation:

Counsel:
Mr D Hume (Plaintiff)
Mr F Assaf SC with Mr B Smith (Defendant)

Solicitors:
Baker McKenzie (Plaintiff)
Pinsent Masons (Defendant)
File Number(s): 2023/277765
Publication restriction: N/A

Judgment

Introduction

  1. These reasons for judgment concern a question that was ordered to be determined separately and prior to all other issues in proceedings to set aside a statutory demand.

  2. The question is whether the plaintiff’s application to set aside the statutory demand was served within the 21-day statutory period as required by s 459G of the Corporations Act 2001 (Cth). The question turns principally on the statutory interpretation of s 600G of the Corporations Act, as in force at times relevant to these proceedings, and its interaction with the provisions of the Service and Execution of Process Act 1992 (Cth) (the SEP Act) governing interstate service of initiating process in civil proceedings.

  3. For the reasons that follow, I have determined that the plaintiff's application to set aside the statutory demand was not served within the 21-day statutory period, and that the question must therefore be answered in the negative.

Relevant facts

  1. The following matters were not the subject of any dispute.

  2. The defendant, Tellhow International Engineering & Contracting Co., Ltd (Tellhow), is a foreign company registered under Division 2 of Part 5B.2 of the Corporations Act. Tellhow has appointed a local agent whose office is in Sydney, New South Wales. [1] Tellhow has nominated that office of its local agent as Tellhow’s registered office in Australia. [2]

    1. Corporations Act, ss 601CF and 601CG.

    2. Corporations Act, s 601CT.

  3. On 25 May 2023, Tellhow served a statutory demand on the plaintiff, Riverina Solar Pty Ltd (Riverina).

  4. The 21-day period within which Riverina was entitled to apply to the Court to set aside the statutory demand under s 459G of the Corporations Act expired at midnight on 15 June 2023.

  5. The statutory demand specified the following address as the address of the creditor for service of any such application and the supporting affidavit:

“Pinsent Masons

Level 32, Gateway Tower

1 Macquarie Place

Sydney, NSW 2000

Attention: Rob Buchanan & Scott Ivey”

  1. The statutory demand was served under cover of a letter from Pinsent Masons addressed to Riverina and signed by Mr Buchanan. That letter set out a telephone number and email addresses for Mr Buchanan and Mr Ivey.

  2. On 15 June 2023, Riverina filed an application to set aside the statutory demand, together with a supporting affidavit, in the Supreme Court of Queensland.

  3. Between 11:37pm and 11:56pm on 15 June 2023, Riverina’s solicitors sent a series of emails to Mr Buchanan and Mr Ivey of Pinsent Masons attaching a copy of the originating application filed in the Supreme Court of Queensland, the supporting affidavit, the exhibit to the supporting affidavit, and the notice required by s 16 of the SEP Act. Tellhow accepts that those emails were received in the email inboxes of Mr Buchanan and Mr Ivey before midnight on 15 June 2023. There is no suggestion that the contents of the attachments were not retrievable or accessible at that time.

  4. On 19 July 2023, the Supreme Court of Queensland transferred Riverina’s application to set aside the statutory demand to this Court.

The question for separate determination

  1. As I have already mentioned, this Court made an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the following question be heard and determined separately and prior to all other issues in the proceedings:

“Whether [Riverina’s] application to set aside the statutory demand issued by [Tellhow] was served within 21 days as required by section 459G of the Corporations Act 2001 (Cth).”

Legislation

  1. Chapter 5 of the Corporations Act is entitled “External administration”.

  2. Chapter 5 includes Part 5.4, which is entitled “Winding up in insolvency”.

  3. Division 1 of Part 5.4 of Chapter 5 is entitled “When company to be wound up in insolvency”. Sections 459A and 459B in Division 1 provide that the Court may order that a company be wound up in insolvency on an application under ss 234, 459P, 462 or 464 of the Corporations Act. Section 459C provides that, for the purpose of a winding up application under any of those sections, the Court must presume that the company is insolvent in specified circumstances, including where the company has failed to comply with a statutory demand during the period of three months prior to the filing of the winding up application, or after the filing of the winding up application.

  4. Division 2 of Part 5.4 of Chapter 5 is entitled “Statutory demand”. Section 459E(1) in Division 2 provides that a person may serve on a company a demand relating to a debt or debts that the company owes to the person, that are due and payable and whose amounts total at least the statutory minimum. Section 459E(2) sets out certain information that must be set out in the statutory demand, and requires the demand to be in the prescribed form. The prescribed form requires the creditor issuing the demand to specify the address of the creditor for service of copies of any application to set aside the statutory demand and supporting affidavit.

  5. Section 459G in Division 3 – entitled “Application to Set Aside Statutory Demand” - provides (emphasis added):

“(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 the statutory period after the demand is so served.

(3)   An application is made in accordance with this section only if, within that period:

(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. As a foreign company registered under the Corporations Act, Tellhow is a “registered body” and a “Part 5.7 body” as defined in s 9 of that Act. Section 583 of the Corporations Act provides that a Part 5.7 body may be wound up under Chapter 5, and the provisions of Chapter 5 apply to a Part 5.7 body with such adaptations as are necessary. The circumstances in which a Part 5.7 body may be wound up expressly include where the Part 5.7 body is unable to pay its debts.

  2. It is common ground that the SEP Act applied to the service on Tellhow in New South Wales of the originating application filed by Riverina in the Supreme Court of Queensland.

  3. Part 2 of the SEP Act applies to civil proceedings in a court. Section 15, which falls within Part 2, relevantly provides (emphasis added):

“(1)   An initiating process issued in a State may be served in another State.

…

(3)   Service on a company or a registered body must be effected in accordance with section 9.

…”

  1. Section 16 of the SEP Act provides:

“Service is effective only if copies of such notices as are prescribed are attached to the process, or the copy of the process, served.”

  1. It is common ground that s 15(3) of the SEP Act is in mandatory terms.

  2. The term “registered body” in the SEP Act has the same meaning as in the Corporations Act, and therefore includes Tellhow.

  3. Section 9 of the SEP Act relevantly provides (emphasis added):

“(5)   Service of a process, order or document under this Act on a registered body is to be effected by leaving it at, or by sending it by post to, the body’s registered office.

(6)   If the registered body is a registered foreign company, a process, order or document may be served by leaving it at, or by sending it by post to:

(a)   the address of a local agent of the foreign company notice of    which has been lodged under the Corporations Act 2001; or

(b)   …

…

(9)   Subsections 109X(1) and (2) and section 601CX of the Corporations Act 2001 do not apply to a process, order or document that may be served under this Act.

(10)   For the purposes of this section:

(a)   …

(b)   the situation of a registered body’s registered office is to be determined according to s 601CX(2) of the Corporations Act 2001.”

  1. Section 109X of the Corporations Act concerns service of documents on a company, as opposed to a registered body.

  2. Section 601CX(1) of the Corporations Act relevantly provides:

“(1)   A document may be served on a registered body:

(a)   by leaving it at, or by sending it by post to, the registered office of the body; or

(b)   in the case of a registered foreign company – by leaving it at, or by sending it by post to, the address of a local agent of the foreign company …”

  1. Section 601CX(2) of the Corporations Act, which is picked up by s 9(10) of the SEP Act, relevantly provides that the situation of the registered office of a registered body is taken to be the place in respect of which notice of the address has been lodged under s 601CB(e) or s 601CE(g) – that is, the registered body’s registered office in its place of origin (or, if it has no registered office in that place, its principal place of business in its place of origin) or the registered body’s registered office in Australia pursuant to s 601CT of the Corporations Act.

  2. Section 9(9) of the SEP Act, which provides that s 601CX of the Corporations Act does not apply to a process, order or document that may be served under the SEP Act, makes no reference to s 600G of the Corporations Act.

  3. At the time of the commencement of these proceedings, and at the time of service of the statutory demand that is the subject of these proceedings, s 600G formed part of Division 3 of Part 5.9 of the Corporations Act. Part 5.9 of the Corporations Act is the final Part of Chapter 5, and is entitled “Miscellaneous”. Division 3 of Part 5.9 is entitled “Provisions applying to various kinds of external administration”.

  4. At the times relevant to these proceedings, s 600G relevantly provided (emphasis added):

“(1)   Subject to subsection (7), this section applies to any document that is:

(a)   required or permitted to be given to a person (the    recipient); or

(b)   required to be signed by a person;

under:

(c)   this Chapter; or

(d)   an instrument made for the purposes of a provision of this Chapter; or

(e)   a provision relating to the external administration of a company that:

(i) is a provision of Chapter 10; or

(ii) is a provision of an instrument made for the purpose of Chapter 10; or

(iii) is continued in effect by a provision of Chapter 10; or

(iv) is a provision of an instrument made for the purposes of a provision that is continued in effect by a provision of Chapter 10; or

(f)   Schedule 2; or

(g)   an instrument made for the purposes of a provision of Schedule 2.

Giving a document

(2)   The document may be given to the recipient by means of an electronic communication.

(3)   The document may be given by giving the recipient (by means of an electronic communication or otherwise) sufficient information to allow the recipient to access the document electronically.

(4)   However, an electronic communication or electronic access may only be used if, at the time the electronic communication is used or information about the electronic access is given:

(a)   it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference; and

(b)   there is a nominated electronic address in relation to the recipient.

Signing the document

…

Application of section to documents given to ASIC

(7)   Subsections (2) to (4) do not apply to a document that is required or permitted to be given to ASIC.

…

Definitions

(9)   In this section:

external administration of a company has the same meaning as in Schedule 2.”

  1. The expression “nominated electronic address” is defined in s 9 of the Corporations Act as meaning:

“(a)   the most recent electronic address nominated by the addressee to the originator of the electronic communication as the electronic address for receiving electronic communications; or

(b)   if:

(i)   the address has nominated an electronic address as mentioned in paragraph (a) and the originator knows, or there are reasonable grounds to believe, that the address is not a current electronic address for the addressee; or

(ii)   the addressee has not nominated an electronic address as mentioned in paragraph (a);

an electronic address that the originator believes on reasonable grounds to be a current electronic address for the addressee for receiving electronic communications.”

  1. Section 105A of the Corporations Act makes provision for the time at which an electronic communication is sent, and the time at which it is received.

  2. Section 105B makes provision for the place from which an electronic communication is taken to be sent, and the place at which it is taken to be received. Section 105B relevantly provides (emphasis added):

“(1)   This section applies in relation to an electronic communication unless otherwise agreed between the originator and the addressee of the electronic communication.

…

(3)   An electronic communication is taken to have been received:

(a)   if the originator is a company or registered scheme and the addressee is a member of the company or registered scheme – at the address of the addressee as contained on the register of members of the company or registered scheme at the time the communication is received; and

(b)   if the addressee has a registered office and paragraph (a) does not apply – at the registered office of the addressee; and

(ba)   if the addressee has a principal place of business in Australia and neither paragraph (a) nor (b) applies – the address of the addressee’s principal place of business in Australia; and

(c)   otherwise:

(i)   at the most recent physical address nominated by the addressee to the originator; or

(ii)   if the addressee has not nominated a physical address as mentioned in subparagraph (i) – at the addressee’s usual residential address in Australia.”

  1. The reference to “this Chapter” in s 600G(1)(c) is a reference to Chapter 5 of the Corporations Act, which includes Part 5.4 in which ss 459E and 459G are found.

  2. Section 600G was first inserted into the Corporations Act by clause 120 of Schedule 1 of the Corporations Amendment (Insolvency) Act 2007 (Cth) (the 2007 Amendment Act), which inserted s 600G at the end of Division 3 of Part 5.9 of the Corporations Act. The terms of s 600G inserted into the Act at that time permitted notices or other documents “authorised or required” to be given or sent under specific sections of Chapter 5 of the Corporations Act to be given or sent by electronic communication in specified circumstances. The specific sections did not include s 459G. Thus, s 600G did not provide for a s 459G application to be served or “given” by electronic communication.

  3. The terms of s 600G were amended by clauses 196-202 of Schedule 2 to the Insolvency Law Reform Act 2016 (Cth) (the 2016 Amendment Act). Those amendments were consequential to the amendments to the Corporations Act that introduced the Insolvency Practice Schedule in Schedule 2 to the Corporations Act. The list in s 600G of specific provisions of the Corporations Act under which notices or other documents are “authorised or required” to be given or sent, and which s 600G permitted to be given or sent by electronic communication, was amended by deleting from that list in s 600G some provisions that had been removed from the Corporations Act into the Insolvency Practice Schedule, and by inserting in that list in s 600G a new s 600G(1)(y) which read: “a provision of Schedule 2 or the Insolvency Practice Rules”. The list of provisions in s 600G, as amended by the 2016 Amendment Act, did not include s 459G. Thus, s 600G still did not provide for a s 459G application to be served or “given” by electronic communication.

  4. The terms of s 600G set out at [31] above are the terms of the section as amended by Schedule 4 of the Corporations Amendment (Corporate Insolvency Reforms) Act 2020 (Cth), which took effect from 16 December 2020 (the 2020 Amendment Act). As can be seen at [29] above, and as Cheeseman J explained in In the matter of Bioaction Pty Ltd (2022) 402 ALR 542; [2022] FCA 436 (Bioaction) at [41]-[46], those amendments expanded the scope of s 600G to, relevantly, any document that is required or permitted to be given to a person under any provision of Chapter 5 of the Corporations Act. Chapter 5 includes s 459G. The 2020 Amendment Act also introduced a broad definition of the term “document” in s 9 of the Corporations Act and inserted ss 105A and 105B into the Corporations Act in the terms set out at [33]-[34] above.

  5. The Explanatory Memorandum to the Corporations Amendment (Corporate Insolvency Reforms) Bill 2020 contained the following information about the amendments to s 600G and related amendments:

“Outline of chapter

5.1 Schedule 4 to the Bill expands the situations where documents relating to the external administration of a company may be given electronically. It also permits persons to sign documents relating to the external administration of a company electronically.

Summary of new law

5.2 Schedule 4 allows electronic communication to be used to give a document under the external administration provisions in Chapter 5 of the Corporations Act, the Insolvency Practice Schedule, Chapter 5 of the Corporations Regulations, the Insolvency Practice Rules, or any other instrument made under Chapter 5.

5.3   The Schedule also allows documents relating to the external administration provisions to be signed electronically by using any reliable method to identify the signatory and indicate the signatory’s intention. Signatories may sign different copies of the document provided that the copy includes the entire contents of the original document.

Comparison of key features of new law and current law

New law

Current law

Any document relating to the external administration of a company may be provided by using electronic means if:

• the recipient has nominated an electronic address or the sender has an address that they reasonably believe to be the recipient’s recent electronic address; and

• it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference at the time that the document is given.

Only the specific notices covered by section 600G of the Corporations Act can be provided by electronic means if the recipient consents.

Documents relating to the external administration of a company may be signed electronically by using a method to identify the signatory and indicate the signatory’s intention.

No equivalent.

Detailed explanation of new law

Types of documents that may be given and signed electronically

5.4   Electronic communications may be used to provide any document that is required or permitted to be given under:

Chapter 5 of the Corporations Act (external administration);

the Insolvency Practice Schedule in Schedule 2 to the Corporations Act;

Chapter 5 of the Corporations Regulations (external administration);

the Insolvency Practice Rules or any other instrument made under Chapter 5 of the Corporations Act or the Insolvency Practice Schedule; and

a transitional provision that relates to the external administration rules in Chapter 10 of the Corporations Act or an instrument made under Chapter 10.

…”

  1. Section 600G was repealed by the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023 (Cth), with effect from 15 September 2023.

Issues

  1. Riverina contends that its application to set aside the statutory demand was made within the 21-day period under s 459G of the Corporations Act because:

  1. by emailing to the solicitors acting on behalf of Tellhow the originating application to set aside the statutory demand and supporting affidavit, together with the notice required by s 16 of the SEP Act, Riverina left those documents at the registered office of Tellhow within the meaning of s 9(5) of the SEP Act and this was effective service under the SEP Act; or

  2. alternatively, Riverina gave the originating application, supporting affidavit and s 16 notice to Tellhow by electronic communication as permitted by s 600G of the Corporations Act, which applies to the service of applications to set aside statutory demands and supporting affidavits, and which is not excluded by s 9 of the SEP Act.

  1. Tellhow contends that Riverina’s application was not served within the 21-day statutory period because:

  1. Riverina did not leave the originating application, supporting affidavit and s 16 notice at Tellhow’s registered address by the series of emails sent to its solicitors’ email addresses on the evening of 15 June 2023;

  2. s 600G of the Corporations Act does not apply to service of an application to set aside a statutory demand under s 459G, and the authorities that have decided to the contrary are plainly wrong and should not be followed;

  3. even if s 600G does apply to the service of an application under s 459G (which Tellhow denies), an electronic communication sent in accordance with s 600G is not effective service in cases where s 15(3) of the SEP Act applies; and

  4. even if an electronic communication would otherwise be effective service of the application and supporting affidavit (which Tellhow denies), the SEP Act does not permit the notice required by s 16 to be sent by electronic communication, and an electronic communication attaching the application, supporting affidavit and s 16 notice is therefore not effective service in cases where the SEP Act applies.

  1. Those competing contentions can be conveniently addressed by reference to the following issues identified by the parties:

  1. Does s 600G of the Corporations Act apply to the service of an application and supporting affidavit under s 459G?

  2. If “yes” to (1), is service in accordance with s 600G sufficient to satisfy s 459G(3) of the Corporations Act in circumstances where s 15(3) of the SEP Act requires service to be effected in accordance with s 9 of that Act?

  3. If “yes” to (1) and (2), does the sending of an email to the email address of the solicitor acting on behalf of a creditor in respect of a statutory demand, attaching an application to set aside the statutory demand together with the supporting affidavit, amount to leaving those documents at the creditor’s registered office within the meaning of s 9(5) of the SEP Act?

  4. If “yes” to (1), (2) and (3), was service by email effective in this case in circumstances where the prescribed notice under s 16 of the SEP Act was given by email?

Issue 1: Does s 600G of the Corporations Act apply to the service of an application and supporting affidavit under s 459G?

Outline of the parties’ submissions

  1. Relying on the judgment of Cheeseman J in Bioaction at [36]-[40] and the authorities there referred to, Riverina submits that, even prior to the amendment of s 600G of the Corporations Act by the 2020 Amendment Act, an application and supporting affidavit were ordinarily “served” for the purpose of s 459G when they came to the attention of the person to be served, irrespective of the method of service. However, Riverina did not submit that this was the position in cases of interstate service. As noted earlier in these reasons, it is common ground s 15(3) of the SEP Act is in mandatory terms.

  2. Riverina submits that, at the time that it sent the statutory demand and supporting application to Tellhow’s solicitors by email on 15 June 2023, s 600G expressly permitted service of those documents by electronic communication to the email address that had been nominated in the solicitors’ covering letter under which the statutory demand was served on Riverina. Relying on Bioaction at [71]-[87], the judgment of Meek J in In the matter of Black Tie Holdings Pty Ltd (2022) 162 ACSR 452; [2022] NSWSC 781 (Black Tie) and the judgment of Derrington J in Sandys Swim Pty Ltd v Morgan [2022] FCA 1574 (Sandys Swim), Riverina submits that s 600G, and the deeming provisions of ss 105A and 105B, apply to service of an application and supporting affidavit under s 459G of the Corporations Act because those are documents that are required or permitted to be given to a person under Chapter 5 of the Corporations Act.

  3. Tellhow submits that s 600G does not apply to the service of an application and supporting affidavit under s 459G of the Corporations Act for the following reasons.

  4. First, Tellhow submits that s 600G should be read subject to the heading of Division 3 of Part 5.9 of the Corporations Act within which s 600G was situated: “Provisions applying to various kinds of external administration”. Tellhow submits s 600G should therefore be read as confined to documents that are required or permitted to be given in an “external administration”. Tellhow submits that neither the issue of a statutory demand, nor an application to set aside a statutory demand, is an “external administration” within the meaning of the Corporations Act.

  5. In support of that first submission, Tellhow relies on the following statement of Murray CJ in Ragless v District Council of Prospect [1922] SASR 299 (Ragless) concerning the use of headings in interpretation of a statute:[3]

“So I think the rules may be stated thus: – 1. If the language of the sections is clear and is actually inconsistent with the headings, the headings must give way. 2. If the language of the sections is clear, but, although more general is not inconsistent with the headings, the sections must be read subject to the headings. 3. If the language of the sections is doubtful or ambiguous, the meaning which is consistent with the headings must be adopted.”

3. Ragless v District Council of Prospect [1922] SASR 299 (Ragless) at p 311 (Murray CJ).

  1. As Tellhow submits, this passage from the judgment of Murray CJ was cited as a succinct statement of the relevant principles by Wood CJ at CL (with whom Spigelman CJ and Greg James J agreed) in R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 at [105].

  2. Tellhow submits that rule (1) articulated in Ragless does not apply because the language of s 600G is not inconsistent with the heading. Tellhow submits that rule (2) applies because the clear language of s 600G, expressed in general terms, is not inconsistent with the heading.

  3. Second, and in the alternative to its first submission, Tellhow submits that rule (3) in Ragless applies because the scope of the words “required or permitted to be given to a person” in s 600G(1) is ambiguous. A broad construction of those words would render s 600G inconsistent with s 15(3) of the SEP Act. The heading of Division 3 of Part 5.9 should therefore be applied to confine the application of s 600G to documents required or permitted to be given to a person in an external administration, in order to avoid that inconsistency.

  4. Third, a construction of s 600G as confined to documents required or permitted to be given to a person in an external administration would be consistent with the purpose of s 600G, as disclosed by the explanatory memorandum for the 2020 amendments.

  5. Fourth, Tellhow submits that, in any event, an application to set aside a statutory demand is not a document that is “required or permitted to be given to a person” under Chapter 5 of the Corporations Act. Nor is an application to set aside a statutory demand a document that is “permitted to be given” under Chapter 5 of the Corporations Act. Rather, Tellhow submits, s 459G permits a debtor to apply to the Court for an order setting aside the statutory demand. If the debtor exercises that right, then it is the relevant rules of court that govern the commencement and conduct of the proceeding. In the present case, those rules of court include r 123 of the Uniform Civil Procedure Rules 1999 (Qld), which provide that, where an originating process is served outside Queensland but within Australia, the originating process must be served in accordance with the SEP Act.

  6. Fifth, Tellhow submits that its proposed construction of s 600G as not extending to the service of an application and supporting affidavit under s 459G is supported by the legislative history of s 600G.

  7. Sixth, Tellhow submits that, having regard to the definition of electronic communication, reading s 600G as applying to service of an application under s 459G would mean that service could be effected by giving the recipient a card or sending them an email with a link to a website. Tellhow submits that it was not the intention of Parliament to achieve this absurd consequence when it amended s 600G in the 2020 amendments.

  8. Seventh, Tellhow submits that Riverina’s proposed construction of s 600G as applying to service of an application under s 459G of the Corporations Act gives rise to a direct inconsistency with s 9(5) and s 9(6) of the SEP Act, being earlier Commonwealth legislation dealing with the same subject matter. Tellhow submits that, if this Court were to accept Riverina’s construction of s 600G, then it would be accepting that the 2020 amendments had impliedly repealed s 9(5) and s 9(6) of the SEP Act. Tellhow submits that the Court therefore cannot accept Riverina’s proposed construction unless Riverina establishes that s 600G is incapable of sensible operation if the requirements for interstate service in s 9 and s 15(3) of the SEP Act continue to apply in respect of s 459G applications despite the provisions of s 600G.

  9. Eighth, Tellhow submits that the authorities relied on by Riverina are plainly wrong and ought not be followed.

Consideration and determination

  1. In Bioaction, the question was whether an application to set aside a statutory demand filed in New South Wales was effectively served for the purpose of s 459G(3)(b) of the Corporations Act by being sent by email to the solicitor whose address in New South Wales was nominated in the statutory demand as the address for service of any such application.

  2. With reference to authority, Cheeseman J noted that the term “service” is not defined in s 9 of the Corporations Act, and s 459G does not define what constitutes service of an application to set aside a statutory demand. Her Honour referred to s 28A of the Acts Interpretation Act 1901 (Cth) and s 109X of the Corporations Act as providing for modes of service on companies, noting that those provisions are facultative and not mandatory. To this list may be added s 609CX of the Corporations Act, which provides for service on registered bodies. Cheeseman J referred to the numerous authorities that have established that it is permissible to adopt means of service other than those provided for in s 28A of the Acts InterpretationAct and s 109X of the Corporations Act (in relation to companies) or s 609CX of the Corporations Act (in relation to registered bodies). Valid service will have been effected if the means of service adopted results in the documents arriving at the relevant address within the statutory period. As her Honour put it, “[w]hat is critical is the result which is achieved by the plaintiff’s efforts, not the manner by which that result has been achieved”. [4]

    4. Bioaction at [34]-[40].

  3. Cheeseman J then discussed two competing lines of authority prior to the 2020 Amendment Act about whether service by electronic means was effective service for the purpose of s 459G of the Corporations Act. Although her Honour ultimately did not find it necessary to resolve the difference between those two lines, the weight of authority favoured the view that service of the application and supporting affidavit by electronic communication sent to, and received at, the place for service nominated in the statutory demand, is effective service. [5]

    5. Bioaction at [41]-[45] and [88].

  4. Her Honour then considered the amendments effected by the 2020 Amendment Act. [6] After referring to the well-known principles governing the approach to statutory construction,[7] her Honour held that s 600G facilitated service of a s 459G application and supporting affidavit by electronic communication provided that the communication was received at the address for service within the statutory time period, and provided that the attached application and supporting affidavit were complete and legible. [8] Her Honour’s reasons may be summarised as follows.

    6. See [38]-[39] above.

    7. Bioaction at [63].

    8. Bioaction at [71]-[87].

  5. First, s 600G applies to any document that is required or permitted to be given to a person under Chapter 5 of the Corporations Act. An application under s 459G and an affidavit made in support of such an application are “documents” as defined in s 9 of the Corporations Act. They are documents that are required or permitted to be served within the statutory period in order to attract the Court’s jurisdiction under s 459G to set aside the statutory demand. As documents that are required or permitted to be served under s 459G, they are documents that are required or permitted to be given to the creditor. Cheesman J rejected a submission that a document required to be “served” is not a document required to be “given”. Her Honour saw no reason to exclude from the meaning of the general word “given” in s 600G the meaning of the narrower word “served” in s 459G(3)(b), when what is comprehended for service in s 459G is the giving or delivery of a document to the address designated by the creditor in the statutory demand for service of any application to set aside the demand. [9]

    9. Bioaction at [74]-[78].

  6. Second, Cheeseman J considered that the legislative history of s 600G supported this construction because, inter alia, the 2020 Amendment Act had extended the operation of s 600G to any “document” (as broadly defined) that is required or permitted to be given to a person under Chapter 5 of the Corporations Act. [10]

    10. Bioaction at [79]-[85].

  7. Third, Cheeseman J rejected a submission that the requirement under s 459G that the application and supporting affidavit be “served” (as opposed to “given”) was deliberate and was intended to enliven the requirements of service under applicable laws and rules of court. Her Honour rejected that submission on the basis that it was inconsistent with long standing authority concerning the service of applications under s 459G. [11]

    11. Bioaction at [86].

  8. It is important to note that Cheeseman J was not addressing circumstances in which the application is filed in a different State from the State in which it is served. In Bioaction, the application to set aside the statutory demand was filed and served in New South Wales. Whilst that distinguishing feature of Bioaction compared to the present case is not relevant to Issue 1 as framed by the parties, it is relevant to Issues 2, 3 and 4.

  9. In Black Tie, Meek J referred to Bioaction in accepting that, but for “the SEPA issue” in that case, a s 459G application would have been effectively served by email sent to the email address of the creditor’s solicitor whose office address the creditor had nominated in the statutory demand as the address for service of any such application. [12] In doing so, his Honour implicitly accepted that, s 600G, properly construed, applied to the service of applications and supporting affidavits under s 459G. I will return to “the SEPA issue” in Black Tie under Issue 2 below.

    12. In the matter of Black Tie Holdings Pty Ltd (2022) 162 ACSR 452; [2022] NSWSC 781 (Black Tie) at [51]-[58], [63]-[73], [153], [290]-[330] (Meek J).

  10. In Sandys Swim, Derrington J also referred to Bioaction with approval in determining that s 600G of the Corporations Act, as amended by the 2020 Amendment Act, permitted a statutory demand to be served by email. That case did not involve any question about the effectiveness of service by electronic communication of an application to set aside the statutory demand.

  11. Contrary to Tellhow’s submissions, I do not consider that the judgment of Cheeseman J in Bioaction is plainly wrong. Nor do I consider that Black Tie and Sandys Swim were plainly wrong in applying Bioaction and treating s 600G as applicable to service of s 459G applications (subject to “the SEPA issue”, in the case of Black Tie). On the contrary, and leaving aside for the moment cases of interstate service of s 459G applications, I respectfully consider that Cheeseman J was correct in concluding, for the reasons that her Honour gave, that s 600G of the Corporations Act applies to the service of an application to set aside a statutory demand, and the supporting affidavit that is required to be served together with the application, under s 459G of the Corporations Act. It is convenient to explain why by reference to Tellhow’s other seven submissions which I have summarised at [46]-[56] above.

  12. In relation to Tellhow’s first submission summarised at [47]-[50] above, I accept that the heading of Division 3 of Part 5.9 forms part of the Corporations Act, and is therefore part of the Act as a whole which must be considered in determining the legal meaning of s 600G and, in particular, the legal meaning of the words in subsection (1) which provide that s 600G applies to “any document” that is “required or permitted to be given to a person” under Chapter 5 of the Corporations Act: Acts Interpretation Act 1901 (Cth), s 13. The legal meaning of those words is to be derived from consideration of the language of the Corporations Act, viewed as a whole, and the context, general purpose and policy of the Corporations Act, or of s 600G to the extent that that is separately discernible: Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134 at [14]-[18] (Bell CJ, Meagher and Kirk JJA agreeing), and the authorities there referred to.

  1. The heading of Division 3 of Part 5.9 of the Corporations Act, in which s 600G was located prior to its repeal, is “Provisions applying to various kinds of external administration”. I accept Tellhow’s submission that the language of s 600G, albeit expressed in wide terms (“any document” that is “required or permitted to be given to a person” under Chapter 5) is clear. However, I reject Tellhow’s submission that rule (2) in Ragless requires those words to be read subject to the heading of Division 3 of Part 5.9 on the basis that those words are not inconsistent with that heading. In my opinion, there is an inconsistency between the words of s 600G and the heading of Division 3 of Part 5.9. The inconsistency arises because Chapter 5 includes Division 2 of Part 5.4, which provides for the issue of statutory demands, and for applications to set aside statutory demands. Specifically, s 459G(3)(b) requires a copy of any application to set aside a statutory demand, together with a copy of the supporting affidavit, to be “served” on the person who served the demand on the company. As Cheeseman J held in Bioaction, the ordinary meaning of the very wide words of s 600G referring to “any document” that is “required or permitted to be given to a person” under Chapter 5 include any s 459G application and supporting affidavit, which are required to be “served” within the statutory period in order for an application to set aside the statutory demand to have been made in accordance with s 459G, and in order for the Court to have jurisdiction to entertain the application. As Tellhow submitted, neither a statutory demand nor an application to set aside a statutory demand is a kind of “external administration”. In my opinion, it follows that the heading of Division 3 of Part 5.9 must give way to the words of s 600G, in accordance with rule (1) articulated in Ragless. Contrary to Tellhow’s submissions, rules (2) and (3) in Ragless do not apply. To confine the words of s 600G by reference to the heading would, in my view, impose an unnaturally constricted meaning on the words of s 600G: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 601; [1990] HCA 17 (Mason CJ, Deane, Dawson and Gaudron JJ); see also P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [5.110]. In substance, it would involve reading the words “under … this Chapter” s 600G(1)(c) as if they read “under … a provision applying to the external administration of a company that is a provision of this Chapter”. The legislature chose to include similar words in s 600G(1)(e) which picks up provisions of Chapter 10 of the Corporations Act only insofar as they relate to the external administration of a company. The legislature did not include any words of limitation in s 600G(1)(c), which picks up the whole of the provisions of Chapter 5.

  2. I reject Tellhow’s second submission summarised at [51] above because rule (3) in Ragless does not apply. For the reasons explained immediately above, the words of s 600G are wide, but not ambiguous, and there is an inconsistency between those words, on the one hand, and the heading of Division 3 of Part 5.9, on the other hand, which requires that heading to give way to the words of s 600G.

  3. Further, the second submission and the seventh submission summarised at [56] above are founded on a contention that there is an inconsistency between the wide words of s 600G of the Corporations Act (if not confined by reference to the Division 3 Part 5.9 heading to notices issued and other documents given in an external administration), and s 15(3) of the SEP Act which provides that service of initiating process in a State other than the State in which the process was filed must be effected in accordance with s 9 of the SEP Act, and that the inconsistency should be resolved by reading s 600G as inapplicable to any s 459G application in order to avoid an implied repeal of ss 9 and 15(3) of the SEP Act which were enacted prior to the 2020 amendments to s 600G.

  4. I reject that contention underlying Tellhow’s second and seventh submissions. Section 600G of the Corporations Act, as amended by the 2020 Amendment Act, is a general provision that permits a very wide range of documents – including, but not limited to, any document required or permitted to be given under any provision of Chapter 5 of the Corporations Act – to be given by electronic communication. Section 15(3) of the SEP Act is an earlier provision that is limited to initiating process that it is to be served in a State other than the State in which it was filed, and requires that specific, narrower class of documents to be served by one of the means stipulated in s 9 of the SEP Act. The means stipulated in s 9 of the SEP Act do not include electronic communication. Potential inconsistency between s 600G of the Corporations Act and s 15(3) of the SEP Act is limited to cases where an application to set aside a statutory demand under s 459G of the Corporations Act is filed in one State, and is required to be served in another State. As Tellhow itself submitted in relation to Issue 2 below, that potential inconsistency is avoided by construing the facultative s 600G of the Corporations Act as subject to the mandatory s 15(3) of the SEP Act in the narrower classes of case to which s 15(3) applies. That is because, in passing Division 1 of Part 2 of the SEP Act, the legislature was directing their attention to the specific case of interstate service of initiating process in civil proceedings that s 15 of the SEPA Act was expressly directed to. Having made provision for that specific case in s 15 of the SEP Act, the legislature is not to be taken by the subsequent enactment of the amended s 600G of the Corporations Act to have intended to derogate from s 15 of the SEP Act: Maybury v Plowman (1913) 16 CLR 468 at 473-474; [1913] HCA 43 (Barton ACJ); see also P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [11.140]. Contrary to Tellhow’s submissions in relation to Issue 1, the potential inconsistency between s 600G of the Corporations Act and s 15(3) of the SEP Act does not warrant s 600G being read as inapplicable to the service of any and all applications to set aside statutory demands. Such a construction of s 600G would strain the ordinary meaning of the language of the section, understood in the context of Chapter 5 of the Corporations Act which provides for the issue of statutory demands and service of applications to set aside statutory demands in Part 5.4, which governs winding up companies in insolvency.

  5. I reject Tellhow’s third submission referred to at [52] above. Tellhow emphasised that paragraph 5.2 of the Explanatory Memorandum set out at [39] above stated that: “Schedule 4 allows electronic communication to be used to give a document under the external administration provisions in Chapter 5 of the Corporations Act…”. Tellhow’s submissions also relied on the statement in the comparative table that the “new law” meant that “Any document relating to the external administration of a company may be provided by using electronic means …”. In my opinion, neither of those statements in the Explanatory Memorandum support Tellhow’s submission that the purpose of s 600G was confined to facilitating the giving of documents required or permitted to be given during the course of an external administration to be given by electronic communication. It is clear from the structure of Chapter 5 of the Corporations Act explained at [14]-[17] above that the legislature characterised the whole of Chapter 5 – including the statutory demand provisions in Divisions 2 and 3 of Part 5.4 – as provisions relating to external administration. The link between the statutory demand procedure and external administration is the presumption of insolvency that may arise from a failure to comply with a statutory demand in any subsequent proceedings to wind up the debtor. Understood in that context, the reference in paragraph 5.2 of the Explanatory Memorandum to the “external administration provisions in Chapter 5” is, in my opinion, a reference to the whole of Chapter 5. The words “relating to” in the expression “[a]ny document relating to the external administration of a company” in the comparative table are connecting words of wide application. In my opinion, understood in the context of structure of Chapter 5 as a whole, that expression includes an application under s 459G to set aside a statutory demand that, if not set aside, may give rise to a presumption of insolvency in winding up proceedings.

  6. I reject Tellhow’s fourth submission referred to at [53] above that an application to set aside a statutory demand is not a document that is “required or permitted to be given to a person” under Chapter 5 of the Corporations Act. I respectfully agree with and adopt Cheeseman J’s reasoning in Bioaction, which I have summarised at [62] above. Tellhow’s fourth submission is founded on separating the exercise of the right to apply to the Court to set aside a statutory demand under s 459G(1) of the Corporations Act from the service of that application under s 459G(3). In my opinion, those two things cannot be separated, because s 459G(3) expressly provides that the application is not made unless and until it is served, and only then if it has been filed and served within the statutory period. In substance, s 459G requires a copy of the application and supporting affidavit to be served – that is, given to the creditor who issued the statutory demand – in each and every case in which a debtor served with a statutory demand wishes to invoke the Court’s statutory jurisdiction under s 459G to set aside the demand.

  7. I reject Tellhow’s fifth submission referred to at [54] above. The legislative history of s 600G is summarised at [30]-[40] above. As explained by Cheeseman J in Bioaction, and as submitted by Riverina, that legislative history discloses that the scope of s 600G was broadened by the amendments made by the 2020 Amendment Act.

  8. I reject Tellhow’s sixth submission referred to at [55] above. I fail to see why it would be absurd for s 600G to facilitate service of a s 459G application to which the SEP Act did not apply by electronic communication attaching a link to a website containing a complete copy of the application and supporting affidavit in legible form, as required by s 459G(3), provided that the requirements of s 600G(4) are satisfied. If the requirements of s 600G(4) are not satisfied, then the electronic communication attaching the link would not be an effective means of service.

  9. For all of those reasons, it is my opinion that s 600G of the Corporations Act in force at the times relevant to these proceedings applied to the service of a s 459G application and supporting affidavit, save in cases in which s 15(3) of the SEP Act required that initiating process to be served by means other than the means permitted by s 600G.

Issue 2: Does s 600G of the Corporations Act apply to the service of an application and supporting affidavit under s 459G if s 15(3) of the SEP Act requires service to be effected in accordance with s 9?

Outline of the parties’ submissions

  1. Riverina acknowledges that, where an application under s 459G of the Corporations Act is to be served in a State other than the State in which they have been filed, s 15(3) of the SEP Act requires that service on a company or registered body be effected in accordance with s 9 of the SEP Act. Riverina accepts that this mandatory requirement prevails over the ordinary meaning of service in s 459G of the Corporations Act. That is to say, the manner of service must comply with s 9 of the SEP Act. If the manner of service is non-compliant, service will not be effective even if the documents have come to the attention of the company or registered body to be served. Those concessions were appropriately made: see Re International Materials & Technologies Pty Ltd (2013) 282 FLR 362; [2013] NSWSC 787 at [6]-[9] (Brereton J, as his Honour then was); MHC Pathology Pty Ltd v Midvale Trial Pty Ltd [2020] VSC 789 at [15] (Hetyey AsJ).

  2. Riverina submits that service by electronic communication in accordance with s 600G is sufficient to satisfy s 459G(3) of the Corporations Act in circumstances where s 15(3) of the SEP Act requires service to be effected in accordance with s 9 of that Act. Riverina relies on the judgment of Meek J in Black Tie in support of that submission. Riverina also relies on the language of s 9 of the SEP Act, which it submits identifies with specificity the service provisions of the Corporations Act over which the SEP Act prevails. Section 600G is not specified in s 9 of the SEP Act as one of those provisions over which the SEP Act prevails. Riverina also relies on the language of s 600G(1) of the Corporations Act, which states that s 600G applies subject to sub-section (7), and does not state that s 600G is subject to the SEP Act. Finally, Riverina relies on the purpose of s 600G, which it submits was “facilitative in nature”.

  3. Riverina contends that the solicitors’ email addresses to which the originating application, supporting affidavit and s 16 notice were sent on the evening of 15 June 2023 were identified in the covering letter that accompanied the statutory demand served on Riverina and were thereby nominated by Tellhow as the electronic addresses for receiving any application to set aside the statutory demand. Riverina submits that those two email addresses were therefore “nominated electronic addresses” within the meaning of the Corporations Act.

  4. As discussed under Issue 1 above, Tellhow submits that Black Tie is plainly wrong and should not be followed. The grounds of that submission include that, insofar as Black Tie held that s 600G of the Corporations Act applied to interstate service of a s 459G application, the Court did not consider the question of “harmonious construction” of s 600G with ss 9 and 15(3) of the SEPA Act.

  5. Tellhow acknowledges that s 9(9) of the SEP Act expressly excludes ss 109X(1) and (2) and 601CX of the Corporations Act from applying to a process, order or document that may be served under the SEP Act. Tellhow submits that this is because ss 109X(1) and (2) and 601CX are the provisions of the Corporations Act that expressly deal with methods of service on companies and registered bodies which are “directly inconsistent” with the SEP Act.

  6. Tellhow submits that, if s 600G applies to service of a s 459G application (contrary to Tellhow’s submissions in relation to Issue 1), then the resulting overlap in the operation of s 600G and the provisions of the SEP Act should be resolved by finding that, where they both apply, the SEP Act takes precedence. Tellhow submits that this would construe s 600G harmoniously with ss 9 and 15(3) of the SEPA Act in respect of s 459G applications, thereby avoiding any implied repeal of those provisions of the SEPA Act. Tellhow relies on all of the matters raised by its submissions with respect to Issue 1 in support of this harmonious construction and, in addition, the following two matters.

  7. First, s 600G(2) of the Corporations Act is expressed in permissive terms, whereas s 15(3) of the SEP Act is expressed in mandatory terms. Tellhow submits that the facilitative provision of s 600G must give way to the mandatory provision of s 15(3) in cases where both would otherwise apply.

  8. Second, Tellhow submits that s 600G is a general provision in relation to the giving of documents required or permitted to be given under Chapter 5 of the Corporations Act, whereas ss 9 and 15(3) of the SEP Act deal specifically with the service of court process on companies and registered bodies where interstate service is required. Tellhow submits that the general provision must give way to the specific provision, otherwise the general provision would “neutralize” the otherwise mandatory operation of the specific provision.

Consideration and determination

  1. For the reasons explained at [73] above, I accept Tellhow’s submissions and reject Riverina’s submissions in relation to Issue 2. In doing so, I am departing from Black Tie insofar as Meek J implicitly accepted that, s 600G applied to the service of applications and supporting affidavits under s 459G, subject only to “the SEPA issue” identified by the parties in that case. That “SEPA issue” was confined to the question whether service was ineffective by reason of the debtor having failed to attach the notice required by s 16 of the SEP Act to the s 459G application and supporting affidavit served on the creditor. The parties did not raise, and his Honour therefore had no occasion to consider, the issues raised by the parties in these proceedings before me that are addressed at [73] above.

  2. As Tellhow submitted, s 9(9) of the SEP Act expressly excludes the operation of those provisions of the Corporations Act that cover the same field as, but inconsistent with, s 9 of the SEP Act. The fact that s 9 of the SEP Act does not expressly exclude s 600G of the Corporations Act, provides no support for construing the general, facultative provisions of s 600G as overriding the specific, mandatory provisions of s 15(3) of the SEP Act where the two provisions intersect. Nor is such a construction warranted by the fact that the general, facultative s 600G does not expressly provide that it is subject to the earlier, specific, mandatory provisions of s 15(3) of the SEP Act.

Issue 3: Is an application and supporting affidavit sent by email to the creditor’s solicitors thereby left at the creditor’s registered office within the meaning of s 9(5) of the SEP Act?

Outline of the parties’ submissions

  1. Riverina submits that the series of emails that its solicitors sent to Tellhow’s solicitors on the evening of 15 June 2023 were communications with Tellhow, through the solicitors that Tellhow had appointed to represent it in relation to the statutory demand and any application to set aside the statutory demand. Riverina submits that those emails were sent to those solicitors as agents for Tellhow, and that Tellhow was therefore the “addressee” of the emails within the meaning of s 105B(3) of the Corporations Act.

  2. Riverina submits that, by reason of s 105B(3)(b) of the Corporations Act, the emails are therefore taken to have been received at Tellhow’s registered office at the time that they were received by Tellhow’s solicitors. As I have already mentioned, there is no dispute that the solicitors received the emails prior to midnight on the last day of the 21-day statutory period for service of any application to set aside the statutory demand under s 459G of the Corporations Act.

  3. Riverina further submits that, by reason of that deemed receipt of the originating application, supporting affidavit and s 16 notice at Tellhow’s registered address under s 105B(3)(b) of the Corporations Act, those documents were “left at” Tellhow’s registered office within the meaning of s 9(5) of the SEP Act. Riverina submits that it therefore complied with s 15(3) of the SEP Act by serving those documents in accordance with s 9(5) of the SEP Act.

  4. Tellhow did not specifically address these matters. Its submissions were directed to Issues 1 and 2 above, and to Issue 4 below.

Consideration and determination

  1. The interpretation of Part 1.2 of the Corporations Act have effect for the purposes of the Corporations Act, except so far as the contrary intention appears in the Corporations Act.[13] Sections 105A and 105B fall within Division 8 of Part 1.2, which is entitled “Miscellaneous interpretation rules”. Those sections provide for the manner in which the words “sent” and “received” are to be interpreted in terms of time (s 105A) and place (s 105B) in relation to electronic communications in circumstances where the originator and addressee of the electronic communication have not made an agreement about when and where such communications are to be taken to have been sent and received. There is no indication that ss 105A and 105B are intended to have effect for the purposes of legislation other than the Corporations Act. [14]

    13. Corporations Act, s 6.

    14. Unlike, for example, s 109X(1), which provides: “For the purposes of any law, a document may be served on a company by …”

  1. Riverina’s submissions summarised above rely on s 105B(3)(b) of the Corporations Act, the terms of which are set out at [34] above. For the reasons explained immediately above, I do not understand Riverina to submit that s 105B(3)(b) applies directly to the interpretation of the expression “leaving it at … the body’s registered office” in s 9(5) of the SEP Act. I understand the substance of Riverina’s submission to be that: (1) s 600G of the Corporations Act applies to the service of an application and supporting affidavit under s 459G, including in circumstances where s 15(3) of the SEP Act requires service to be effected in accordance with s 9 of the SEP Act; and (2) if service is made by electronic communication in accordance with s 600G of the Corporations Act, then s 105B(3)(b) of the Corporations Act applies to determining the place where the documents sent by that electronic communication are taken to have been received; and (3) in the present case, those documents are taken to have been received at the registered office of the company for which the solicitors to whom the electronic communication was sent were acting.

  2. Riverina’s submissions fail at the first stage because, for the reasons explained under Issues 1 and 2 above, s 600G of the Corporations Act does not apply to the service of an application and supporting affidavit under s 459G to which s 15(3) of the SEP Act applies.

  3. Had it been necessary to do so, I would have rejected Riverina’s submission that a solicitor who is the addressee of an electronic communication attaching a s 459G application and supporting affidavit is taken to be their client named as the defendant to the application, and that the registered office of the client rather than the office of the solicitor is therefore taken to be the place at which s 105B(3) of the Corporations Act deems that electronic communication to have been received. A solicitor is a fiduciary who acts on behalf of and in the interests of their client. The solicitor’s email and geographical addresses do not thereby become interchangeable with the addresses of the client. I note that, in Bioaction, Cheeseman J held that the place where s 105B(3) deemed the relevant email to the creditor’s solicitors to have been received was the office address of those solicitors. [15]

Issue 4: Giving of notice under s 16 of the SEP Act by email

15. Bioaction at [96].

Outline of the parties’ submissions

  1. Tellhow submits that interstate service of a s 459G application is not effective unless s 16 of the SEP Act is complied with, referring to Energy Conservation Systems Pty Ltd v Downer EDI Engineering Electrical Pty Ltd (2008) 221 FLR 393; [2008] NSWSC 1139 at [23] (Barrett J).

  2. Tellhow submits that, even if s 600G of the Corporations Act is construed as applying to service of a s 459G application in conjunction with the SEP Act (contrary to Tellhow’s submissions in respect of Issues 1 and 2 above), s 600G does not apply to the requirements for service of the notice prescribed by s 16 of the SEP Act because that notice is not a document “required or permitted to be given” under Chapter 5 of the Corporations Act or under any other provision of the Act identified in s 600G. Rather, it is a document required to be given by the SEP Act which requires service on registered bodies by one of the means stipulated in s 9. Sub-sections (5) and (6) are the relevant provisions of s 9 of the SEP Act in this case.

  3. Riverina submits that s 16 of the SEP Act does not impose separate service requirements in relation to the notice, but requires the notice to be attached to an initiating process served under Part 2 Division 1 of the SEP Act. Riverina submits that, if the Court accepts its submissions in relation to service of the 459G application (see Issues 1, 2 and 3 above), then the attachment of the notice to the application and supporting affidavit sent by electronic communication to Tellhow’s solicitors on 15 June 2023 satisfies the requirements of s 16.

Consideration and determination

  1. In light of my conclusions in relation to Issues 2 and 3 above, Issue 4 does not arise.

Conclusion and orders

  1. For the foregoing reasons, Riverina’s application to set aside the statutory demand was not served within the 21-day statutory period because the sending of the application and supporting affidavit to Tellhow’s solicitors by email on 15 June 2023 did not comply with s 15(3) of the SEP Act and therefore did not constitute effective service. It follows that there is no application before the Court that has been made in accordance with s 459G of the Corporations Act, and the proceedings must therefore be dismissed. I will hear the parties in relation to costs.

  2. The orders of the Court are:

  1. Order that the question ordered on 7 September 2023 to be decided separately and prior to all other issues in these proceedings be determined as follows:

Question: “Whether the plaintiff’s application to set aside the statutory demand issued by the defendant was served within 21 days as required by section 459G of the Corporations Act 2001 (Cth).”

Answer: No.

  1. Proceedings dismissed.

  2. Order that the exhibits be returned to the parties.

  1. I will hear the parties in relation to costs.

**********

Endnotes

Decision last updated: 02 May 2024

Actions
Download as PDF Download as Word Document