In the matter of Vincent di Bella and Associates Pty Limited
[2013] NSWSC 1714
•20 August 2013
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Vincent di Bella and Associates Pty Limited [2013] NSWSC 1714 Hearing dates: Tuesday 20 August 2013 Decision date: 20 August 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Interlocutory process dismissed with costs.
Catchwords: CORPORATIONS - winding up - statutory demand - application to set aside statutory demand under s 459G, s 459H and s 459J - whether plaintiff's application served within 21 day period - held, application not served within 21 day period - held, Graywinter principle would have precluded the plaintiff from relying upon offsetting claim - interlocutory process dismissed with costs Legislation Cited: Corporations Act s 459G, s 459H and s 459J
Corporations Act s109X(1) and Commonwealth Evidence Act s160(1).
UCPR rule 33.11Cases Cited: Hope v Hope (1854) 4 De GM & G 328, 43 ER 535
Howship Holdings Pty Limited v Leslie (1996) 21 ACR 440
Ketrim Pty Limited v AS & L Pty Limited (2004) 52 ACSR 252
Pearldurst Pty Limited v Summers Resort Group Pty Limited [2007] NSWSC 1126
Pino v Crosser and Hassen (1967) VR 835
R v Heron (1884) 10 VLR 314
Woodgate v Garard Pty Limited (2010) 78 ACSR 468Category: Principal judgment Parties: Vincent J Di Bella & Associates Pty Ltd (applicant)
Ozem Kassem and Bruno Secatore as Liquidators of ACN 092 138 442 Pty Ltd (In Liquidation) (first respondent)
ACN 092 138 442 Pty Limited (In Liquidation) (second respondent)Representation: Counsel:
Ms B Nolan (applicant)
Mr Condon SC w Mr P Wallis (respondents)
File Number(s): 2013/167141
Judgment (ex tempore)
This judgment is given in proceedings 2013/167141. By originating process filed on 30 May 2013, the plaintiff Vincent J Di Bella & Associates Pty Limited claims an order pursuant to the Corporations Act s459G, s459H and s459J setting aside a creditor's statutory demand dated 7 May 2013 served on it by the defendants Ozem Kassem and Bruno Secatore (as liquidators of ACN 092 138 442 Pty Limited). Two issues on this application are dispositive.
The originating process, though filed on 30 May 2013, was served at the earliest on 31 May 2013. Receipt is acknowledged by facsimile by the solicitor for the defendants at 4.31pm on 31 May 2013, which corresponds with evidence tendered by the plaintiff of dispatch of a facsimile at practically the same time. The question, then, is when the 21 day period commenced to run.
The plaintiff contends that it commenced to run on 13 May 2013, when the application was deemed to have been served by operation of the combination of Corporations Act, s 109X(1), and Commonwealth Evidence Act, s 160(1). However, the defendants submit that the statutory demand came to the notice of the plaintiff not later than 9 May 2013, as is demonstrated by the response on 9 May 2013 at 11.34am to an email sent by the defendants' solicitors to the plaintiff on 7 May at 5.25pm, the response being in the following terms:
Dear Mr Rollins. I noticed that your statutory demand relates to a judgment obtained apparently ex-parte. When do you contend that you served me in respect to the proposed proceedings to obtain such judgment? Regards, VJ Di Bella .
To my mind, that email plainly establishes that Mr Di Bella, who is self-evidently the principal of the plaintiff and has sworn all affidavits on its behalf and plainly has authority to deal with such matters on behalf of the plaintiff, had received, and for that matter read, the statutory demand not later than 9 May 2013.
The sufficiency of informal service in such a manner is established by a number of authorities. The real question is simply, when does the document come to the notice of the person for whom it is intended: Hope v Hope (1854) 4 De GM & G 328, 43 ER 535; R v Heron (1884) 10 VLR 314; Pino v Crosser and Hassen (1967) VR 835; Howship Holdings Pty Limited v Leslie (1996) 21 ACR 440; Ketrim Pty Limited v AS & L Pty Limited (2004) 52 ACSR 252. The sufficiency of informal service of a creditor's statutory demand was confirmed in Pearldurst Pty Limited v Summers Resort Group Pty Limited [2007] NSWSC 1126. In Woodgate v Garard Pty Limited (2010) 78 ACSR 468, Palmer J citing Emhill Pty Limited v Bonsoc Pty Limited (2004) 50 ACSR 305, said (at [44]) that where a document comes to the actual attention of the sole director of a company it will be presumed, unless a strong case to the contrary is shown, that the director is the responsible officer and that service is good.
On that basis, time for filing and service of an application to set aside the creditor's statutory demand would have expired at the end of 30 May 2013. Although the application was filed, it was not served within that time. Accordingly, it is not competent and the Court cannot make an order on it.
Had I not reached that conclusion on the question of service, I would have found that the "Graywinter principle" precludes the plaintiff from relying on the offsetting claim that it seeks to assert in these proceedings.
In his s 459G affidavit, Mr Di Bella deposes, in paragraph 5, to the effect that the plaintiff has offsetting claims against the defendants on grounds set out in the following 10 subparagraphs, the last of which is as follows:
(j) As a result of the above, the plaintiff inter alia, have [sic] incurred costs in the proceedings to which the statutory demand relates, costs in the production of documents, records, public examinations and loss of business. The proceedings are ill-founded and an abuse of process and in dereliction of the statutory duty of the first defendants. Thereby, the costs incurred by the plaintiff inter alia form part of the loss and damage caused by the alleged breaches and thereby constitute a basis upon which the plaintiff has a cross claim against the defendants such that the statutory demand is liable to be set aside
The paragraphs which culminate in subparagraph (j) may be summarised as an allegation that the substantive proceedings brought by the defendants against clients of the plaintiff are brought maliciously and as an abuse of process. Subparagraph (j) alleges, in effect, that as a result of the defendants so bringing the substantive proceedings, the plaintiff has incurred costs. I do not consider that such an affidavit gave notice to a reader of it that there was an offsetting claim in the form of an application under UCPR rule 33.11 for the costs of compliance with a subpoena.
Accordingly, I dismiss the interlocutory process with costs assessed in the sum of $9,000.
Decision last updated: 15 April 2014
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