Monsere Pty Ltd v RDM Nominees Pty Ltd - [2019] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MONSERE PTY LTD & ANOR v RDM NOMINEES PTY LTD
[2019] SASC 126
Judgment of Judge Bochner a Master of the Supreme Court
24 July 2019
CORPORATIONS
Corporations Act 2001 (Cth) s 459G - whether the originating process complies with the act - whether the Court lacks jurisdiction.
Held: The originating process does not comply with s 459G of the Act. The plaintiffs' claim is dismissed.
Corporations Act 2001 (Cth) s 459G, referred to.
Cooloola Dairys Pty Ltd v National Foods Milk Ltd (2004) 211 ALR 293; Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 1181; Craneford Nominees Pty Ltd v VGC Co-Operative Ltd [2012] SASC 74; Chelring Pty Ltd v Coombs [2000] WASC 60; Universal Trade Exchange Pty Ltd v Westpac Banking Corporation (2002) 20 ACLC 1302; Accommodation West Pty Ltd v Innis [2009] WASC 337; LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134; TBK Beef Pty Ltd v Ark Mangoes Pty Ltd (2012) 32 NTLR 68; Bache Business & Printing Services Pty Ltd v SA Hub Productions Pty Ltd [2009] SASC 369; Opensoft Australia Pty Ltd v Miller Street Pty Ltd [2011] FCA 653; Australian Foods Company Pty Ltd v O'Donnell [2002] WASC 129, considered.

MONSERE PTY LTD & ANOR v RDM NOMINEES PTY LTD
[2019] SASC 126

By way of originating process dated 5 April 2019, the plaintiffs seek, among other things, to set aside a statutory demand issued to it by the defendant on 19 March 2019. This decision deals with a preliminary issue raised by the defendant.
With respect to the statutory demand, the first plaintiff contends that there is a genuine dispute and that it has an offsetting claim in relation to the debt. Alternatively, the first plaintiff submits that the statutory demand should be set aside on some other ground pursuant to s 459J(1)(b).
The defendant argues that, because the originating process (“FDN1”) does not bear a return date in the Notice to the Defendant at Part B, the plaintiffs have not complied with s 459G of the Corporations Act 2001 (Cth) (the Act) and that the Court consequently lacks jurisdiction to make orders in respect of the statutory demand. This is the issue dealt with herein.
Compliance with Section 459G of the Act
Section 459G provides:
(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.
The Corporations Rules 2003 (South Australia) (the Rules) detail the requirements of an application made under the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] SASC 126
Decision Date: 24 July 2019

CaseChat Overview and Summary

Monsere Pty Ltd was involved in a legal dispute with RDM Nominees Pty Ltd, which was heard by the Supreme Court of Queensland. The matter revolved around the service of a document, specifically whether the document served was a valid "copy" as defined under the Act. The critical issue was whether the document contained the necessary information, including the evidence of filing with the court, the date of filing, and the time and date for the hearing, within the appropriate form. The placement of the time and date in the incorrect section of the form was deemed to have rendered this information meaningless.

The court was required to determine if the document served by the plaintiff met the statutory requirements for a "copy" as defined by the Act. The key issue was whether the placement of the time and date for the hearing in the wrong section of the form meant that these crucial details were not evident on the face of the document, thereby failing to satisfy the statutory requirements. The court considered whether the document met the criteria set out in relevant authorities, which emphasized that the information must be clear and unambiguous, without requiring the defendant to make any assumptions or take additional steps to ascertain the hearing date.

In delivering the judgment, his Honour found that the document served did not constitute a valid "copy" within the meaning of the Act. The endorsement of the time and date in Part C of the form did not satisfy the requirement that these details be evident on the face of the document. The court reasoned that even an experienced lawyer might have to infer or assume that the time and date in Part C related to the hearing, rather than the service of the demand. This inference was not permissible, as the placement of the time and date in the wrong section rendered them meaningless. The court concluded that the statutory requirements of section 459G had not been met, and thus the plaintiff's application was dismissed.

The court ordered that the plaintiff's application be dismissed, as the document served did not comply with the statutory requirements for a "copy." The judgment emphasized the importance of clear and unambiguous notification of the hearing date, without requiring the defendant to make any assumptions or deductions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

His Honour found that the document served was a “copy” within the meaning of the Act, as it evidenced the filing of the document with the court within the prescribed time period and the acceptance of the document by the court through an authenticating mark, and it recorded the return date. Consideration It is clear from the authorities that notification of the return date, within the twenty-one day period, is crucial to invoke the jurisdiction of this Court. In my view, the endorsement of the time and date at Part C does not satisfy this requirement. It is not immediately obvious to the reader that the hearing date is the date recorded at Part C. It is not for the defendant to attempt to ascertain the true meaning of Part C; the time and date for hearing must be evident on the face of the document, without requiring the defendant to make any assumptions. In my view, this case cannot be distinguished from Cooloola Dairies, despite the factual differences; both cases required the defendant to guess, make an assumption or take some other step to ensure that it was aware of the hearing date for the application. I am unable to accept the plaintiff’s submission that the authorities should be distinguished, either on the basis that they turned on the question of whether what was served was a copy, or on the basis that they dealt with the situation where no date was endorsed on the originating application at all. The authorities make it clear that, it is not the fact that the served document is an exact replica of the filed document that is important; what is essential is that each of them contains certain essential pieces of information, being evidence of filing with the Court, the date of filing, and the time and date for hearing, within the appropriate form. In my view, the placement of the time and date for hearing in the wrong section of the form is akin to their not being on the form at all. Even an experienced lawyer would be required to assume or infer that the time and date in Part C was the time and date for hearing, rather than service of the demand. A lay person should not be expected to exercise such powers of deduction when dealing with matters as important as this. Their placement in Part C rendered them meaningless. While the facts of this matter are different to those found in Cooloola Dairys, Opensoft and Benonyx, the principles to be applied are the same. The placement of the time and date in the wrong part had the same effect as there being no time and date nominated at all. I conclude that the requirements of s 459G have not been satisfied. The plaintiff’s application must be dismissed.