Panimo Nominees Pty Ltd v Vasiliki Lobsters Melbourne Pty Ltd

[2011] VSC 321

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

LIST E

S CI 00265 2011

IN THE MATTER OF VASILIKI LOBSTERS MELBOURNE PTY LTD (ACN 129 559 557)

PANIMO NOMINEES PTY LTD (ACN 005 815 770) (trading as P.S.E. Refrigeration and Air Conditioning)	Plaintiff
v
VASILIKI LOBSTERS MELBOURNE PTY LTD	Defendant

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2011
DATE OF JUDGMENT:	30 March 2011
CASE MAY BE CITED AS:	Panimo Nominees Pty Ltd v Vasiliki Lobsters Melbourne Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 321

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CORPORATIONS ― Application for winding up in insolvency pursuant to s 459P of the Corporations Act 2001(Cth) ― Whether statutory demand served at registered office ― Whether the defendant has proved the “contrary” under s 29 of the Acts Interpretation Act 1901 (Cth) ― Finding that statutory demand not delivered to registered office of defendant ― Winding up application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Kohn	Fong & Co Solicitors
For the Defendant	Mr J Dunne	George Erlichster

HIS HONOUR:

1. On 25 January 2011, the plaintiff filed an originating process seeking the winding up of the defendant pursuant to s 459P of the Corporations Act2001.  The application relied on a failure by the defendant to comply with a statutory demand, which the plaintiff alleged had been served on it by posting to the defendant at its registered office on 8 December 2010. 

1. An extract of the records of ASIC in respect of the defendant states that as and from 6 June 2008, the registered office of the defendant is located at “CC/- Guests Pty Ltd (“Guests”) 234 Balaclava Road, Caulfield North  VIC  3161”.  Guests Pty Ltd is a company which provids accounting services and is the defendant’s accountant. 

1. On 23 February 2011, the defendant filed a notice of appearance.  It states its grounds of opposition to winding up as being first, that the statutory demand is defective and second, the statutory demand was not served on the defendant.  I will deal with the issue of service at the outset.  It will only become necessary to deal with the alleged defect in the demand if I consider that it has been served on the defendant.

1. The plaintiff has filed two affidavits deposing to service of the statutory demand.  They are the affidavits of Dimitri Theodore Jim Stavris dated 22 February 2011 and 23 March 2011.  In addition to service of the statutory demand, Mr Stavris also deposes in his affidavits to service of the originating process and the accompanying documents. 

1. In his affidavit of 23 March 2011, Mr Stavris deposes that on 8 December 2010 at approximately 4.30pm he posted by ordinary pre-paid post at the post office box situated outside the Burwood Heights Licensed Post Office at 16 Burwood Highway East an envelope addressed to the defendant at its registered office.  He deposes that the envelope contained a letter of the same date which was similarly addressed and which enclosed a statutory demand dated 7 December 2010 and an affidavit accompanying the statutory demand sworn 7 December 2010.  Mr Stavris’ earlier affidavit deposes to the same matters in very similar terms. 

1. The defendant filed two affidavits in opposition to the application.  They both relate to the issue of service.  In short, they state that neither the demand or the originating process were served at the registered office.

1. The affidavit of Moshe Trebish sworn 9 March 2011 deposes that Mr Trebish is a director of Guests.  Guests’ office is located at 234 Balaclava Road, Caulfield North.  He is a certified practising accountant.  Mr Trebish deposes that he is the “partner” responsible for office administration and is ultimately responsible for the defendant’s affairs.  He confirms that the 234 Balaclava Road, Caulfield North address is the registered office of the defendant.  He then details the procedure in respect of mail posted to the defendant.  He states that all mail addressed to Guests is collected from its post office box at Caulfield Junction Licensed Post Office by his office staff.  No mail is received at the street address.  The mail is then sorted by the office manager and all mail, other than ASIC or Australian Taxation Office mail, is distributed by the office manager to the staff member responsible for the client.  The staff member responsible for that client will either open the mail and deal with its contents or pass the mail on for forwarding to the client.  All such mail is recorded in an outgoing mail record. 

1. Mr Trebish deposes that mail from a solicitor would invariably be shown to the partner responsible because of its potentially litigious nature.  Mr Trebish deposes that he is aware of the seriousness of receiving a creditor’s statutory demand and would have immediately contacted the client and emphasised its urgency.

1. After describing the regime at Guests in respect of incoming mail, Mr Trebish deposes that in this case no mail from the defendant’s solicitor was shown to him on or about the dates the documents have been claimed to have been served, 9 December 2010 in the case of the statutory demand and 27 January 2011 in the case of the originating process.  Mr Trebish states that he was not on leave from the office on those dates, nor is anything recorded in the outgoing mail record addressed to the defendant on or about the relevant dates.  He concludes by saying that Guests has been at 234 Balaclava Road, Caulfield North for nearly 20 years.  To the best of his knowledge there has never been a situation where court documents have “failed to be served” on Guests as the registered office of its corporate clients.  I understand this to mean that over that period of time, there has never been a controversy in respect of service on any of its corporate clients for whom it serves as the registered office.   

1. The second affidavit is that of Cheryl Davis.  Ms Davis is a senior accountant at Guests.  She is the staff member responsible for the defendant’s affairs, and is presumably answerable to Mr Trebish.  She deposes that any general mail received by Guests addressed to the defendant other than ASIC and Australian Taxation Office mail would be passed on to her.  She deposes that she did not receive any mail from the plaintiff’s solicitor addressed to the defendant on or about the date of the alleged service of documents, namely 9 December 2010 and 27 January 2011 or at any other time.  She deposes that she was not on leave on those dates.  She says that she is aware of the significance of the receipt of documents from a solicitor and would have certainly remembered receiving any such document, which would have immediately been on‑forwarded to the defendant.

1. Section 109X(1)(a) of the Corporations Act provides for service of documents on a company by ordinary pre-paid post at its registered office. The plaintiff sought to rely on the deemed service provisions in s 29 of the Acts Interpretation Act 1901 (Cth). That section provides that if a document is properly addressed and sent by pre‑paid post, service is deemed to have occurred at the time the letter would be delivered in the ordinary course of post, unless the contrary is proved.

1. In Renegade Rigging Pty Ltd v Hanlon Nominees Pty Ltd,[1] Ferguson J also had occasion to consider the service provisions.  On and from paragraph 13 of the judgment she collects and considers in some detail the relevant provisions.  In the context of a controversy as to whether there had been service of the demand she stated at paragraph 21:

…  It follows that I must therefore consider initially whether: 

(a)there is proof of posting the statutory demand and supporting affidavit and the date of posting;

(b)there is evidence of the ordinary course of post; and

(c)it has been established that the demand and supporting affidavit were not delivered in the ordinary course of post.     

[1][2010] VSC 385.

1. In this matter, there is no issue in respect of compliance by the plaintiff with the requirements as to proof of posting of the demand as s 29 requires. Rather, the issue for my consideration is whether the defendant has in the relevant sense established that the demand and supporting affidavit were not delivered in the ordinary course of post, i.e. whether it has proved the “contrary” under the terms of s 29 of the Acts Interpretation Act 1901 (Cth).

1. In Fancourt v Mercantile Credits Limited,[2] the High Court considered the operation of s 39 of the Acts Interpretation Act 1956 in Queensland, which provision is in very similar terms to s 29 of the Acts Interpretation Act.  The Court stated the following at p 96:

There is a line of cases, commencing with Reg v County of London Court of Sessions Appeals Committee; ex parte Rossi [1956] 1 QB 682, which deal with the effect of non-delivery where service by post is permitted and used, having regard to s 26 of the Interpretation Act 1889 (UK). 

That section is the equivalent of s 39(1) of the Queensland Acts Interpretation Acts.  The effect of the cases appears to be the proof of non‑delivery means that service cannot be deemed to have taken place under the second limb of the section at the time of delivery in the ordinary course of post and cannot be established as having taken place at any other time.  The consequence is that where it is necessary to establish service at a particular time, proof of non‑delivery is as effective as proof of non‑service, notwithstanding that service by post is in the circumstances permitted when the requirements of the Interpretation Act are observed.[3] 

It may be thought that there is an anomaly in such a result because it means that, not withstanding the adoption of a permitted means of service, the service is nevertheless ineffective if there is proof of non‑delivery.  It is, however, necessary to pursue these decisions here save to remark that they are all cases in which delivery was disproved.  Despite remarks in the judgments about non‑receipt, it was non‑delivery which was significant because the second limb of s 26 of the Interpretation Act refers to proof of the contrary of delivery.  As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non‑receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.  There is here no evidence of non‑delivery.  It follows that the application of s 39(1) of the Acts Interpretation Acts in no way affects the proof of service of the notices in this case.  In accordance with s 42(1)(c) of the Hire Purchase Act and that such service is deemed to have taken place in the due course of the post.  It also follows that the appellants fail to establish any defence under s 13(4) of the Hire Purchase Act.”

[2](1983) 154 CLR 87.

[3]see Beer v Davies [1956] 2 QB 187; Hewitt v Leicester Corporation [1969] 1 WLR 855; Saga Limited v Avalon Promotions (1972) 2 QB 325; A/S Cathrineholme v Norequipement (1972) 2 QB 314; CF Lombard Australia v Mohrwinkel (1973) 21 FLR 277.

1. The issue I have to consider is whether there is evidence of non‑delivery as distinct from evidence of non‑receipt.  Mr Kohn contends that the evidence adduced by the defendant goes to establishing non‑receipt as distinct from non‑delivery. 

1. Both deponents swear that neither the statutory demand nor the originating process were received by them.  Both deponents are accountants and state that they are aware of the significance of documents from solicitors.  Ms Davis said that she certainly would have remembered receiving any such documents, which would have immediately been on‑forwarded to the defendant. 

1. Moreover and significantly, Mr Trebish deposes in some detail to the mail system in operation at Guests.  He states that mail which is delivered to Guests from a solicitor would invariably be shown to the partner responsible due to its potentially litigious nature.  In particular he states that he is aware of the seriousness of receiving a creditor’s statutory demand and would have immediately contacted the client and emphasised its urgency. 

1. The defendant’s evidence was not the subject of cross‑examination and is inherently plausible. To my mind, the quality of the defendant’s evidence is such to establish non delivery to Guests, not just non receipt. There is credible uncontradicted evidence from the senior person responsible and from the particular accountant having responsibility for the defendant’s affairs at Guests that establishes on the balance of probabilities that the documents were not delivered to that address. It is remarkable that neither the statutory demand or the originating process are said to have been delivered to Guests. I consider that the defendant has established on the balance of probabilities that the contrary has been proved within the meaning of that expression where it appears in s 29 of the Acts Interpretation Act. 

1. Mr Kohn contended that there should have been further evidence from other persons associated with the mail processing chain, including the post office but I do not agree with that submission. There is little, if anything, that those persons could add. While it bears the onus of proving non delivery, the defendant is not required to prove a negative.

1. In the circumstances of the Plaintiff not being able to establish a presumed act of insolvency under section 459C(2) of the Corporations Act 2001 arising from non compliance with the demand, its application for the winding up of the defendant must be dismissed.

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