NOY'S Works Pty Ltd (Formerly NOY'S Castings Pty Ltd) v Allcast Pty Ltd - [2005] WASC 185

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NOY'S WORKS PTY LTD (FORMERLY NOY'S CASTINGS PTY LTD) -v- ALLCAST PTY LTD [2005] WASC 185

CORAM: MASTER NEWNES

HEARD: 10 AUGUST 2005

DELIVERED : 23 AUGUST 2005

FILE NO/S: COR 111 of 2005

BETWEEN: NOY'S WORKS PTY LTD (FORMERLY NOY'S CASTINGS PTY LTD) (ACN 109 713 573)
Plaintiff
AND
ALLCAST PTY LTD (ACN 109 713 573)
Defendant

Catchwords:

Corporations - Statutory demand - Omission of signature of creditor - Application by defendant for declaration that not statutory demand within meaning of Corporations Act - Turns on own facts

Legislation:

Bills of Exchange Act 1909 (Cth)

Corporations Act2001 (Cth), s 9, s 459E, s 459G, s 459J(2), s 459P

Result:

Application for declaration dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr B C Smith
Defendant: Mr P I Jooste QC

Solicitors:

Plaintiff: Ilberys Lawyers
Defendant: Holborn Lenhoff Massey

Case(s) referred to in judgment(s):

Dromore Fresh Produce Pty Ltd v W Paton (Fertilizers) Pty Ltd (1997) 15 ACLC 424
Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 12 ACLC 391
Muirhead v Commonwealth Bank of Australia [1997] 1 Qd R 567
Topfelt Pty Ltd v State Bank of New South Wales Ltd (1994) 12 ACLC 15

Case(s) also cited:

Achiever Investments Pty Ltd v Newtone Pty Ltd [2002] WASC 71
Aizen v Essendon Travel (Vic) Pty Ltd (1994) 12 ACLC 299
Beralt Pty Ltd v Joe Battaglia Plastering Pty Ltd (1999) 17 ACLC 1702
CGI Information Systems and Management Consultants Pty Ltd v APRA Consulting Pty Ltd [2003] NSWSC 728
Chains & Power (Aust) Pty Ltd v Commonwealth Bank of Australia (1994) 13 ACLC 73
Deputy Commissioner of Taxation v Jetbird Holdings Pty Ltd (2004) 22 ACLC 629
First Sydney Properties Pty Ltd v Double Bay Project Pty Ltd (2004) 213 ALR 324
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Gelor Pty Ltd v Magic Star (WA) Pty Ltd [2002] WASC 148
Hamilhall Pty Ltd (In liq) v AT Phillips Pty Ltd (1994) 12 ACLC 1065
Neill v Hewens (1953) 89 CLR 1
NT Resorts Pty Ltd v Deputy Commissioner of Taxation (1998) 16 ACLC 957
Orpin Pty Ltd v Laver Pty Ltd; unreported; SCt of Tas; 3 February 1998
Quitstar Pty Ltd v Cooline Pacific Pty Ltd (2004) 22 ACLC 15
Quitstar v Cooline (2002) 20 ACLC 1695
Sewmail (Australia) Pty Ltd v Booby Traps Pty Ltd (1997) 15 ACLC 628
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 15 ACLC 1001
Victor Tunevitsch Pty Ltd v Farrow Mortgage Services Pty Ltd (In liq) (1994) 12 ACLC 963
Victorian Workcover Authority v Kay's P/L [2001] VSC 358

MASTER NEWNES: This application raises a short point under the Corporations Act 2001 (Cth) (the "Act"), namely, whether a document which is in all other respects in the form of a statutory demand, but which is not signed by, or on behalf of, the creditor is a statutory demand within the meaning of s 9 of the Act.
The facts are not in contention. On 31 January 2005, the plaintiff served at the registered office of the defendant, a document ("the statutory demand") in the form prescribed under s 459E(2)(e) of the Act, form 509H, and an affidavit by a Darryl Noy, a director of the plaintiff, who verified that the sum of $81,320.59, referred to in the statutory demand, was due and payable by the defendant to the plaintiff. Both documents were dated 28 January 2005. The statutory demand was addressed to the defendant and was a demand, in the terms of form 509H, by the plaintiff that the defendant pay the sum of $81,320.59 within 21 days after service of the demand. It contained, however, two omissions. The date of the accompanying affidavit had not been inserted, and, although the statutory demand was endorsed with the name of the intended signatory, being the solicitors for the plaintiff, those solicitors had omitted to sign it. On this application nothing turned on the omission of the date of the accompanying affidavit.
The registered office of the defendant was the address of its accountants and the statutory demand and accompanying affidavit were served at that address. The defendant says that the statutory demand and affidavit were not brought to its attention until more than 21 days had elapsed from the date of service. It was not therefore open to the defendant to apply to set aside the statutory demand under s 459G of the Act.
On 13 April 2005, the plaintiff applied to the Court to wind up the defendant, relying on the failure of the defendant to comply with the statutory demand. On 14 June 2005, the defendant filed an interlocutory application seeking a declaration that the statutory demand was of no force and effect, and was not a statutory demand for the purposes of Pt 5.4 of the Act. The defendant seeks to have the plaintiff's application to wind up the defendant dismissed.
It was submitted by senior counsel for the defendant that in the absence of the signature of the plaintiff or its agent, the statutory demand did not constitute a statutory demand within the meaning of s 9 of the Act. That section, relevantly, provides that a statutory demand is "[a] document that is, or purports to be, a demand served under section 459E."
It was submitted that an unsigned document is not a demand under s 459E, nor does it purport to be one. In this context, a document "purports" to be something when it "professes" or "claims" to be that thing: Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 12 ACLC 391 at 396. An unsigned document could not constitute, nor did it "profess" or "claim" to be, a statutory demand. In the absence of a signature, there was no "demand" by the defendant. In that connection, senior counsel referred to Muirhead v Commonwealth Bank of Australia [1997] 1 Qd R 567, a case concerning the nature of the signature required on a bill of exchange under the Bills of Exchange Act 1909 (Cth). It does not seem to me, however, that anything said in that case is of assistance in the present case.
It was argued by senior counsel for the defendant that the omission of the signature was more than a defect, but was such a fundamental flaw that the document was "incapable of assuming the description of [a] statutory demand within the meaning of the Corporations Law". The plaintiff could not therefore rely upon the defendant's failure to comply with the demand as the ground for an application to the Court to wind up the defendant.
It was submitted that it was therefore irrelevant that the plaintiff had not brought an application under s 459G within 21 days of service of the statutory demand. That provision is only relevant to a statutory demand within the meaning of the Act. It has no application where, as here, the document is not a statutory demand: Kalamunda Meat Wholesalers v Reg Russell & Sons Pty Ltd (supra) at 393 – 394.
The plaintiff argued that the document clearly was, or purported to be, a statutory demand. It was in the prescribed form, it contained the required information and it was accompanied by an affidavit verifying the indebtedness. It was deficient only in that the signature of the defendant's solicitor had been inadvertently omitted. The name of the firm of solicitors had, however, been typed below the space for signature and it was clear that the absence of the signature was simply an oversight. The statutory demand also omitted the date of the accompanying affidavit but that was not relied upon by the defendant.
Counsel for the plaintiff also pointed out that in the initial response from the defendant's solicitors, they had referred to the statutory demand as a statutory demand and had clearly understood it as such. There was no suggestion at that stage that it was deficient in any significant respect and certainly there was no suggestion that the omission of the signature was such a fundamental omission as to cause the defendant any doubt as to whether it was a statutory demand.
In my view, the defendant's contention that the statutory demand is so deficient as to fall outside the Act is without merit.
It is provided by s 459E(1) that a person may serve on a company a demand relating to a debt that the company owes to the person, that is due and payable and the amount of which is at least the statutory minimum. Section 459E(2) provides that the demand, among other things, must be in writing, in the prescribed form and "must be signed by or on behalf of the creditor".
In the present case, the statutory demand was in the prescribed form and, relevantly, met all of the requirements set out in s 459E(2), with the exception of the signature required by s 459E(2)(f). At the top of the document appeared the notation "Form 509H" and immediately below that "Corporations Act 2001". The notation "Paragraph 459E(2)(e)" appeared adjacent to those notations. The text of the statutory demand was headed "Creditors Statutory Demand for Payment of Debt". The affidavit which accompanied it, and which verified that the debt referred to in the statutory demand was due and payable, was headed "Affidavit Accompanying Statutory Demand".
In Topfelt Pty Ltd v State Bank of New South Wales Ltd (1994) 12 ACLC 15, Lockhart J pointed out that Parliament, when enacting the amendments to Pt 5.4 of the Corporations Act, sought to avoid introducing the technicalities that had developed over the years in decisions of the Court with respect to bankruptcy notices; in particular, the distinction between formal and substantial defects. A clear example of that intention appeared from s 459J(2) which provided that in the absence of substantial injustice or some other reason why it should be set aside, the Court "must not set aside a statutory demand merely because of a defect". His Honour went on [at 25]:
"The new Pt 5.4 of the Corporations Law does not recognise two regimes: one dealing with documents that suffer from major defects such that they cannot be described as statutory demands for the purposes of Pt 5.4 of the Corporations Law; and another dealing with documents that suffer only from minor defects and are capable of being saved from invalidity by the operation of s 459G(2). This is a distinction which the Parliament has sought to avoid and which for many years bedevilled the law and practice relating to bankruptcy notices.
There may, however, be cases where deficiencies in the form of demands are so fundamental that the demands are incapable of assuming the description of statutory demands within the meaning of the Corporations Law."
His Honour concluded that in that case the deficiencies in the demand did not fall within the latter category.
In my view, there is no doubt that the statutory demand in this case was, or purported to be, a statutory demand under the Act. This is not "one of those very rare cases where the demand itself falls right outside anything that could be a 'purported demand' within the meaning of s 9 of the [Act]": Dromore Fresh Produce Pty Ltd v W Paton (Fertilizers) Pty Ltd (1997) 15 ACLC 424 per Young J at 427. No‑one receiving it could have been in any doubt that it was, or purported to be, a demand under s 459E of the Act.
I do not accept that the omission of the signature has the drastic consequences contended for by the defendant. It was obviously inadvertent. That a demand for payment was made by the plaintiff was plain from the text of the statutory demand. The omission of the signature was simply a defect within the meaning of s 9, as was the omission of the date of the accompanying affidavit. Of course, as no application was brought to set aside the statutory demand within the time required by s 459G of the Act, the question of whether the omission of the signature caused substantial injustice does not arise. I might say, however, that had that question arisen, I cannot for the moment conceive how the omission of the signature could of itself give rise to substantial injustice.
I would dismiss the application. I will hear the parties on the question of costs.