R. Jansan Pty Ltd v Australian Guarantee Corporation Ltd

[2000] NTSC 103

PARTIES	R. JANSAN Pry LTD V AUSTRALIAN
GUARANTEE CORPORATION LTD
TITLE OF COURT	SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
JURISDICTION	Interlocutory Application
FILE NUMBER	56/2000(20007735)
DELIVERED	27 July 2000
HEARING DATES	25 May; 22 and 27 June 2000
REASONS OF	The Master
CATCHWORDS

CORPORATIONS - N. T. - Statutory demand - failure to provide

address for service in N. T Corporations Law Section 459G

interstate service - Service and Execution of Process Act - failure to serve at registered office - application and affidavit not served within

21 days

CASESFOLLOWED

Beralt Pty Ltd v Joe Battaglia Plastering (1999) 17 ACLC 1703
David Grant v Westpac 13, ALR 353
Highfield Woods v Bayview 19 ACSR 429
Players v Interior Projects 20 ACSR 189
Re Marlan Financial Services 33 ACSR 259

Ultimate Manufacturing v Lyell Morris (1995) 13 ACLC 4269

REPRESENTATION

Counsel

Number of pages

Plaintiff	Mr De Zwart
Defendant	Ms SImpson

Solicitors

Plaintiff	David de L. Winter
Defendant	Morgan Buckley

Judgment category classification

Judgment ID number	mas043
3

TNTHESUPREMECOURT

OFTHENORTHERNTERRITORY

OFAUSTRALIA

ATDARWIN

5612000(20007735)	RE: R. JANSANPTYLTDACN 075823808
and
THECORPORATIONSLAW
BETWEEN
R. JANSAN PTYLTDACN 075823808

Plaintiff

and

AUSTRALIANGUARANTEECORPORATION

LIMITEDACN 0000/5 485

Defendant

MASTERCOULEHAN: REASONSFORDECISION

Delivered 27 Jul 2000

t 11 On 31 March 2000 a creditors statutory demand under section 459E of the

Corporations Law was served on the plaintiff in Darwin The address

normiiated in the demand for service of any application and affidavit under

registered office of the defendant. The prescribed fomi under section 459E	section 459G was that of a fun of solicitors in Adelaide, which was not the
provides that the address for service be in the State or Territory in which the
demand is served
I 2 I This application to have the statutory demand set aside with an affidavit in support was served at the noniniated address witlrtn 21 days of its service on the plaintiff. The notice required by section 16 of the Service and Execution of Process Act (SEPA) was served with the application. All appearance was

filed on behalf of the defendant on 11 May 2000, outside the 21 day period

prescribed by section 459G(3).

I 3 l When tills application came on for hearing, it was subinttted on behalf of the plaintiff that his application was incompetent and should be disnitssed because the plantifE had failed to comply with section 9 of the SEPA by not serving the application and affidavit on the registered office of the defendant. The plaintiff also asked for an order slimlar to that made by Sentor Master

Malloney in Ultimate Man, , act, ,rin,, L err Morris (1995) 13 ACLC

1269,1271 i. e. an order to the effect that the creditor serving the statutory demand undertake to inform the court to which it applies for the winding up of

the debtor as to the defect in the statutory demand.

t 4 I Section 459G of the Corporations Law requires that an application to set aside a statutory demand be made witliiri21 days of service of the demand and the applicant must, wittiiri those 21 days, serve the application and supporting affidavit on the person who served the demand, i. e. the creditor, alftiougli such

service may be at the address for service nominated in the notice (see 23!^!:^z^:._v

Interior Pro^Cts 20 ACSR 189,193 and Re Maria" Financial Services 33

ACSR 259,262).

I 5 I Section 459G makes no provision for the mariner in which service is to be

effected. Assu estedb B 61. in ReM"nan at a e 263, the other modes	of service available require personal service on the creditor, or on the registered
office or an officer of a company, and there is no provision for service
interstate otherwise than PUTSuantto the SEPA. It has been held, following the
decision in Dayid Grant v Wesac 131 11LR 353, that failure to attach the
notice required by section 16 of the SEPA is fatal to an application to set aside a statutory demand (see Hi h zeld Woods VB" view 194CSR 429,433 and Re
Mar1", I 267-268 .

I 6 I It is argued on behalf of the defendant that the circumstances of this case

may be distinguished from ^!^g!!:_s because it was based on section

16 of the SEPA which provides that service is only "effective" if the notice is

attached, and this is not a case offantrr'e to attach the notice. However, section 15(3) provides that service o1T a company "must be effected in accordance with section 9", which for the purposes relevant to this application, is serviee on the

company's registered office. There appears to be no appreciable difference

(see the observations of Sentor Master Mahoney in !!^!^!!>' at pages 433 - 434 and BW Ambrose I in Beratt. Ltd. v Joe B"it" jig ^^Z^g

(1999) 174CLC 1703,1707). It follows that there was 00 effective service prior to the expiration of the 21days as required by section 459G (3) (b) of the Corporations Law and the subsequent entry of an appearance cannot confer

jurisdiction retrospectiveIy. (See ReM"rlan pages 266 - 268). I conclude

that the plaintiffhas not complied with S. 459G (3) (b) and that there is no valid

application before tl. Te Conyt.

I 7 I It appeal's from the affidavit of the plaintiffs solicitor that 11_e was not aware that there may be difficulties with service at the address for' SGIvicc nominated in the statutory demand lintil after the expiry of the 21 day period.

in view of the uncertainty in the law relating to service, it was not unreasonable

for" the plaintiff to have served the applicatioiT and affidavit at the addi. 63s

nomiriated. The fault may reasonably be ascribed to the defendant in failino tonominate an address for service in the Territory as required by the prescribed	fomT. Nevertheless, I am not disposed to make an order of the kind made in
Ultim"te Ingit!1'41ctiirirto for't}Te reasons advanced b B ITie I 11} Re Mqr!in at
page 269 paragraph 43.

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