Ramote Pty Ltd v DEPL Haulage Pty Ltd
[2011] VSC 603
•30 September 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST
LIST E
S CI 2011 02200
| RAMOTE PTY LTD (ACN 109 795 995) | Plaintiff |
| v | |
| DEPL HAULAGE PTY LTD (ACN 128 431 354) | Defendant |
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JUDGE: | EFTHIM AsJ |
WHERE HELD: | Melbourne |
SUBMISSIONS RECEIVED:- | 19 August 2011 |
DATE OF JUDGMENT: | 30 September 2011 |
CASE MAY BE CITED AS: | Ramote Pty Ltd v DEPL Haulage Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2011] VSC 603 |
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CORPORATIONS LAW – Section 459P Corporations Act2001 – Winding up – Service of statutory demand – Services on office said to be registered office in records unexplained by ASIC – Prior accountant of the defendant filed notice of change of address of registered office in error - Validity of statutory demand considered – Statutory demand dated same day as affidavit sworn but served one month later – Wildtown Holdings Pty Ltd v Rural Traders Co Pty Ltd considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Foster | Foster Nicholson |
| For the Defendant | Mr Gronow | McKean Park |
HIS HONOUR:
The plaintiff, Ramote Pty Ltd (“Ramote”) applies pursuant to s 459P of the Corporations Act 2001 (Cth) [“the Act”] that the defendant, DEPL Haulage Pty Ltd (“DEPL Haulage”) be wound up. The plaintiff relies upon the defendant’s failure to comply with the statutory demand which it alleges was served on the defendant’s registered office on 18 January 2011.
Service of the Statutory Demand
The trial commenced on 15 July 2011. The plaintiff had filed three affidavits of Michael Salvatore Canzoneri, two sworn 6 May 2011 and the other on 14 July 2011 to prove service of the statutory demand.
In his first affidavit Mr Canzoneri produced to the Court the current and historical records maintained by the Australian Securities and Investment Commission as at 6 May 2011 with respect to the defendant. The registered address on the records maintained by ASIC show that the registered office of the defendant was Level 17, 181 William Street, Melbourne from 7 July 2010.
In the second affidavit sworn 6 May 2011, Mr Canzoneri deposes that:
On 18 January 2011 I forwarded a letter address to DEPL Haulage Pty Ltd enclosing the original Creditors Statutory Demand and the Affidavit Accompany Demand of Jack Thomas Littlejohn sworn 22 December 2010 to the registered office of the plaintiff at Level 17, 181 William Street, Melbourne by courier.
In the third affidavit sworn on 14 July 2011, Mr Canzoneri sought leave to refer to his affidavit sworn 6 May 2011. He produced with that affidavit a copy of an email from Kings Transport and Logistics Pty Ltd (a courier service) with an attached Job Enquiry which he states confirmed that the letter that he referred to in his previous affidavit was delivered by courier to Level 17, 181 William Street, Melbourne.
Based on these three affidavits the plaintiff was unable to prove that by 22 July 2011 the statutory demand was served. The plaintiff was given leave to file and serve any further affidavits it intended to rely on by 22 July 2011 and the trial of the proceeding was adjourned to 10 August 2011.
On 27 July 2011, Mr Anslem Binz signed an affidavit at Hamburg in Germany. The affidavit has not been witnessed and has not been sworn. It was filed 10 August 2011. A further two affidavits of Mr Binz sworn on 9 August 2011 were filed on 10 August 2011 in court.
The plaintiff also sought to file an affidavit of Nicholas Jorquera and rely on that affidavit at the hearing of this matter. That affidavit was not sworn when the hearing commenced and was only available after the plaintiff had called all of its evidence and the defendant was in the process of calling evidence. The plaintiff was not given leave to rely on that affidavit. The affidavit was sworn on 11 August 2011 and filed one day after the hearing had concluded.
The defendant relied on affidavits sworn by Peter Thomas Dorning, sole director of the defendant sworn on 7 June 2011 and two affidavits of Annette Joseph Taylor (Team Coordinator in the sole employ of WHK Accountants(“WHK”) sworn on 7 June 2011 and 5 August 2011 regarding service of the demand.
Mr Canzoneri gave evidence that on 22 December 2010 that the statutory demand was issued and the affidavit of Jack Thomas Littlejohn in support was also dated 22 December. The demand was addressed to the defendant at Level 17 181 William Street and was returned. According to Mr Canzoneri, the defendant was not a tenant of that building as at 22 December 2010.
Later in January 2011 he addressed an envelope to the defendant at Level 17, William Street, Melbourne and left it at the front desk of his office to be collected by Kings Transport and Logistics Pty Ltd to be delivered to the defendant by courier. Produced to the Court was an excerpt of a receipt book that is kept at Mr Canzoneri’s office and the writing on that excerpt was that of Mr Canzoneri. It demonstrates that the letter was picked up for delivery on 22 December 2010 and 18 January 2011.
Mr Binz gave evidence that he tried to deliver the envelope containing the statutory demand on the defendant at Level 17, 181 William Street, Melbourne on 22 December 2010 but reception would not allow him to deliver it because the defendant was not a tenant. He therefore returned the envelope to MSL Lawyers. On 18 January 2011 he again delivered the envelope to the same addressed and left it at a loading dock in the mailroom at 181 William Street, Melbourne. He is aware that when deliveries are left at the loading dock they are transferred to the internal mail room for each company. He knows this because he worked in the mail room at 181 William Street, Melbourne for approximately two weeks prior to leaving for an overseas holiday in May 2011. The envelope he delivered was sealed. He did not look inside it, nor did he open it.
Ms Taylor gave evidence that documents couriered to 181 William Street, Melbourne get to Level 17 via a loading bay. That is the main reception area of WHK. When cross‑examined she agreed that couriers are not meant to directly go to the 17th floor but believes that, from time to time, the couriers do so. She believes that all the mail goes to the external mail centre and is then delivered to Level 17. She agreed that WHK is a registered office for many companies and that if a letter is sent to the registered office of the company it goes to the mail room. It then gets delivered to Level 17.
Ms Taylor also gave evidence that the defendant was incorporated by WHK. The original address for the company was the former address of WHK, Level 1, 675 Victoria Street, Abbotsford. WHK received no notification from Mr Peter Dorning or any other person that the company had in fact commenced operating and WHK assumed that the defendant was still not trading as at 7 May 2010. In June 2010 WHK moved from its premises from Victoria Street, Abbotsford to its current address. At that time WHK lodged notices of change of registered office in respect of all companies on its records and it believed it acted for. She was not aware that another accountant was acting on behalf of the defendant and that it lodged without knowledge authority of the defendant with ASIC a change of registered office of the defendant to Level 17, 181 William Street, Melbourne.
Ms Taylor explained that the change of registered office of companies was done using an internal software system. She explained the procedure as follows: [1]
[1]Transcript p 70.
So this was actually used – this was done using our internal software, BGL Corporate Affairs system, and what was actually done there, we had a whole list of clients and it’s a database where clients, where you maintain and have them listed as current registered office. So what we had done we had done a bulk update for all of our clients that were listed currently as a client and currently with the registered office address at WHK. We then did a bulk update, asked the system to update all of those addresses and lodged the forms. Unfortunately, and we are going back to the software company on this. Generally when you go into the ASIC portal and you attempt to lodge a form to change anything, it will tell you – if you are not the registered agent it will not let you access that client. Unfortunately with the BGL system it allowed the transaction to go through and therefore there were actually, I believe it was 49 clients that were not actually – did not have their registered office – had – had updated their registered office, but our software was saying registered office address our address. There were 49 clients where that was not the instance and those - - -
Mr Foster:- I’m sorry?--- - - - changes were – - -
- - - were you known where they weren’t at your registered office?---Where they weren’t; where they had since, according to ASIC’s records, were a different address and – but per our – per our software they were still listed with our address, and so when you do the bulk update it updates all those addresses to say this – to lodge a form 8-4 to say that, you know, previous address Abbotsford, now at, you know – - -
Wherever?--- - - - Williams Street, and so those forms are updated. That was fine; lodged all the forms and then we then noticed we had a client ring and say, “Hey, we have this”, so we looked into it further, noticed there were actually a lot more clients that, and there were 49 of them, where the address had been updated and that that is actually a software issue. It’s – because if you lodge that on line you just cannot access that information unless you are the nominated registered agent.
And was DEPL one of those companies?---It was.
And how do you become aware of that problem?---We had checked. We had a company that came back to us and ASIC also notified us that there were a few – that there had been, because someone had said to ASIC, “I think there’s – something’s happened to you. Someone has changed our address, we didn’t do it.”
She said that WHK became aware of the problem because a company came back to them and ASIC advised them that there had been a few problems. On 10 May 2011, WHK lodged a notice of cancellation, cancelling the change of registered office.
Ms Taylor also gave evidence that WHK does not maintain a register of incoming mail or outgoing mail and therefore cannot state whether the statutory demand was received on behalf of the defendant or whether it was forwarded to the defendant. If a letter was received, it would have been sent to 500 Army Road, Pakenham which is the “trading address of the defendant”. WHK is the registered business office of Dorning Enterprises Pty Ltd which also has as its principal place of business 500 Army Road, Pakenham. If she gets mail for Peter Dorning it is sent to that address.
Ms Taylor did not remember receiving a statutory demand on 18 January but believes it would be definitely something she would remember. She did not think it was possible that somebody else in the office might have received the envelope. She gave the following evidence: [2]
[2]Transcript page 74
Mr Gronow:- And as you said, you don’t keep a register of incoming or outgoing mail?---No, we do not.
So, you’re just not able to say whether particular things were or were not received?---That’s correct.
And so instead if you did receive a document for a company that you acted for, you’d sent it to whatever address you had?---Yes.
Do you often receive things like statutory demands?---Not a lot. Personally, I haven’t received a lot of those, no.
If one did arrive, who would look at it, you or somebody else?---Generally, I know what they look like when they come through, and given the policy that we have that everything’s turned around, those sorts of things when they’re received in they’re straight into an envelope and straight – in express post and straight out the door if – when we receive then.
Why is that?---Because they’re an urgent document.
And why do you think they’re urgent?---Because it’s legal – it’s legal stuff and we need to make sure that that’s passed on as quickly as possible to the client.
By the way, when did you take your holidays this?---When did I?
Was it in January?---We can take holidays whenever.
You were there on January of the 18th?---I was in the office during January, yes.
Thank you. Do you remember receiving a statutory demand on January the 18th?---No.
Something you’d remember, is it?---Oh, definitely. Definitely. I worked as – in an insolvency company and those sorts of things. I definitely know what they are and definitely make sure that they’re turned over.
And when you say you don’t get very many, how many roughly a year?
---Maybe – it depends.A dozen, two dozen?---Yeah, maybe a dozen. Maybe, yeah.
Right. And, so, is it sufficiently rare that you think you’d remember it if you did get one?---Yes, I’d like to think I would remember if I did receive anything.
But you didn’t get one for DEPL Haulage on 18 January - - - ?---No.
- - - as far as you can recall?---No.
Is it possible somebody else in the office would have received it?---Generally, the mail for it gets reviewed by a principal and therefore the mail comes through their assistance, which I was for the assistant for the principal on this occasion.
But is it possible that somebody else might have got it and you might not have got it?---I don’t think so.
Don’t think so?---No.
So, is it possible? The answer is, well, you’re not sure?---Well, actually, no, because it would come through because everyone knows that I work for that partner so it would come through me.
What do you mean by that partner, as in how many partners are there?---We have 40.
Is it possible it could have gone to another partner?---No, because it’s all database related. Whenever they receive a document the mail room people check it on the – check it on the database to make sure it goes to the relevant person.
On being asked further cross‑examined in relation to receipt of the statutory demand, Ms Taylor gave the following evidence:[3]
[3]Transcript p 77.
Mr Foster:- The answer to my question was that ordinarily you would put it straight in the post and send it to the business address?---Yes.
His Honour asked you, “Did you do that in relation to DEPL Haulage”, do you remember?, and you said, “No”.
You said you didn’t do it.
His Honour:- Because it didn’t arrive or something to that effect or - - -
Mr Foster:- Yes?---If the document arrives, but we’re talking over six months ago and the sheer volume of mail that we receive - - -
Now, that’s where I’m - - - ?---is just – you can’t possibly remember for all of that and you cannot – I cannot say definitely that it didn’t - - -
That it didn’t arrive?--- - - - it didn’t arrive, but I have a very good track record in that documents are just turned over whenever I receive them. They’re - - -
Right?---They’re gone.
So, you don’t remember whether it arrived or not because there’s too many documents to remember, right?---That’s – yes.
If it arrived, your policy would be to immediately put it in an express post bag and send it to the business address?---Yes.
Mr Dorning gave evidence that Level 17, 181 William Street, Melbourne was never the registered office of the defendant. He agreed that he signed a charge between the defendant and Paccar Financial Pty Ltd on or about 29 October 2010. Attached to the charge is a deed of loan and chattel mortgage which contains the address of the defendant as 17/181 William Street, Melbourne. Mr Dorning stated that it was a complete oversight that the deed of loan could have 17/181 William Street, Melbourne as the defendant’s address. In response to a question explaining how the address was on that document, Mr Dorning gave the following evidence:[4]
Mr Foster:- Yes. I put to you that in preparing the charge they would have done an ASIC search and found the registered office recorded at 17, 181 William Street, Melbourne?---I never saw that extract.
No, I’m asking how Pakar could possibly have come up with that address. Do you have any explanation how the finance company providing you a facility in October 2010 could come up with an address that you say has never been the registered office?---To the best of my ability and my knowledge I have never signed a document to change the address from Clock tower Carlton to 181 William Street, I’ve never signed a document to change it as director.
That’s a rehearsed story, but I’m not asking that question. You might have that story off pat, you may have learned it in the shower this morning. I asked you how Pakar Financial could come up with that address; where would it have come from?---I’d have to ask Pakar.
[4]Transcript p 47.
Mr Dorning gave evidence that Dorning Enterprises Pty Ltd, which is his family company, has its current registered office at Level 17, 181 William Street, Melbourne. He gave evidence that after the defendant was incorporated the registered office was transferred to “Sucuso and Larsen” at Suite 70, 69 Level 3, Drummond Street, Carlton”[5] and to the best of his knowledge the registered office of the defendant from that point on was at the offices of “Sucuso and Larsen”.
[5]Transcript p 53.
He states that the statutory demand was never passed on to him and he denied ever receiving a statutory demand. He could not recall how that application to wind up the defendant came to his attention. He stated that he had a mental block in relation to that.
I am satisfied that on the evidence on the balance of probabilities that the statutory demand was delivered to and received by WHK on the 17th floor, 181 William Street, Melbourne on 18 January 2011. If the registered office of the company was Level 17, 181 William Street, Melbourne and service would be valid notwithstanding the evidence of Mr Dorning that he did not receive the document but that is not the case here.
Section 352 of the Corporations Act provides:
352(1)A document may be lodged with ASIC electronically only if:
(a)ASIC and the person seeking to lodge it (either on their own behalf or as agent) have agreed, in writing, that it may be lodged electronically; or
(b)ASIC has approved, in writing, the electronic lodgement of documents of that kind.
The document is taken to be lodged with ASIC if it is lodged in accordance with the agreement or approval (including any requirements of the agreement or approval as to authentication).
352(1A)For the purposes of paragraph (1)(b), ASIC may approve:
(a)a particular kind of document; or
(b)documents in a particular class of documents.
An electronic lodgement protocol has been published by ASIC for the purposes of s 352(1) of the Corporations Act. The recitals to that protocol state:
A.The ELP constitutes:
1.for the purposes of the Corporations Act 2001 (the Act) – an approval made, in writing, under section 352(1) of the Act; and
2.……National Credit Protection Act ….. (not relevant).
And sets out the terms and conditions that will permit accepted subscribers under recital A.1 and lodgers of documents under…..recital A.2 (not relevant) to lodge documents electronically with ASIC.
B.In order to Documents lodge electronically with ASIC You must:
(i)comply with the ELP and your Participation Agreement; and
(ii)accept the terms and conditions of the ELP, as applicable, when submitting Documents electronically.
The plaintiff relies on clauses 13 and 16 of the electronic lodgement protocol which state:
13.Reliance on authenticated data transmission or electronic document
1.ASIC is entitled to act and rely on an authenticated Data Transmission or Electronic Document unless…..
2.An authenticated Data Transmission or Electronic Document is as valid, effective and enforceable as if it had been written on paper.
16.Are you lodging as an agent?
16.2By transmitting a Document electronically to ASIC for lodgement on behalf of an individual or an entity, you represent that you have authority from that individual or entity to lodge that document on its behalf.
The plaintiff submits that the issue before the Court is whether the defendant has given authority to WHK to lodge a change of address when in fact it had no such authority. It submits that the answer must be “yes”.
Pursuant to s 9 of the Act, a registered office in relation to a body corporate means the body’s registered office under s 142 of the Act. Section 142 provides:
142(1) A company must have a registered office in this jurisdiction. Communications and notices to the company may be addressed to its registered office.
142(2) A company must lodge notice of a change of address of its registered office with ASIC not later than 28 days after the date on which the change occurs. The notice must be in the prescribed form.
Pursuant to s 142(2) of the Act, a change of address of its registered office must be lodged by the company. On the evidence it is clear that WHK did not have the authority to lodge the change of address. I accept the defendant’s submissions that the fact that WHK had, in the past, been accountant for the company and still acted for one of the company’s directors and its company secretary, does not give WHK authority to lodge documents on the defendant’s behalf. No document was signed by the director changing the registered office nor authorising a change of the registered address.
The protocol as to the lodgement of electronic documents cannot override the provisions of the Act such as s 142(2) to change the company’s registered office.
The plaintiff submits that ASIC fulfils a public role and keeps the public register of corporate details pursuant to s 1274 of the Act. The plaintiff also relies on s 1274B(2) of the Act as proof that Level 17, 181 William Street, Melbourne is the registered office of the defendant and that the defendant has been properly served.
Section 1274B(2) of the Act provides:
1274B(2)In a proceeding in a court, a writing that purports to have been prepared by ASIC is admissible as prima facie evidence of the matters stated in so much of the writing as sets out what purports to be information obtained by ASIC, by using a data processor, from the national database. In other words, the writing is proof of such a matter in the absence of evidence to the contrary.
The ASIC register is admissible only as prima facie evidence of the truth of its contents. It cannot validate the registered office as being Level 17, 181 William Street, Melbourne. Here there is evidence to the contrary. The evidence of Ms Taylor and Mr Dorning is clear that that address is not the registered office and the accountants did not have the authority to change the registered address of the office.
Section 109X of the Act sets out the means by which a document can be served on a company. It provides:
109X(1)For the purposes of any law, a document may be served on a company by:
(a)leaving it at, or posting it to, the company’s registered office; or
(b)delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or
(c)if a liquidator of the company has been appointed – leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with ASIC; or
(d)if an administrator of the company has been appointed – leaving it at, or posting it to, the address of the administrators office in the most recent notice of that address lodged with ASIC.
A statutory demand has not been left or posted at the company’s registered office, nor has it been delivered personally to a director of the defendant. In such circumstances, the plaintiff cannot rely upon s 109X of the Act. If s 109X could be relied on, then the onus would shift on the defendant to demonstrate non‑delivery.
It is up to the plaintiff to demonstrate that the document came to the attention of the defendant. There is no evidence before the Court that the demand after it was received by WHK was actually forwarded to the defendant, nor is there any evidence that the defendant received the demand.
A statutory demand, if served by registered post, would not be proper service pursuant to s 109X as it has not been delivered to the registered office even though one would think it would come to the attention of the company to which it is addressed.[6] The demand must be delivered to the registered office.
[6]See Re Amanatidis Holdings Pty Ltd (1991) 9 ACLC 507.
The plaintiff submits that every case turns on its facts. It says that facts in this case show that although the registered office was changed and the process adopted by WHK would have brought the documents to the attention of the defendant and that service was effective. The plaintiff relies on FP Leonard Advertising Pty Ltd v KD Travel Service Pty Ltd, in support of that submission.[7]
[7][1993] 11 ACLC 1203.
In that case, Santow J held that service was effective even though a document posted to the registered office had been returned. His Honour observed that an abuse of process will not occur if there had been fair notice given by the creditor to the debtor. FP Leonard Advertising Pty Ltd v KD Travel Service Pty Ltd can be distinguished as there was actual delivery to the registered office.
The doctrine of fair notice was criticised by Gillard J in CGU Workers Compensation Victoria Ltd v Carousel Bank Pty Ltd.[8] His Honour refused to wind up the company as he was satisfied that there was proof of non‑delivery. The demand was not sent to the registered office.
[8](1999) VSC 227.
In considering the doctrine of fair notice, his Honour stated:[9]
Whether or not there is such a doctrine of fair notice, it seems to me that the true question is whether on the balance of probabilities the Court is satisfied that the document came to the notice of the intended recipient.
This will depend upon all the circumstances. In my view it would not be satisfied by showing that the creditor took all diligent steps. The Court would have to be satisfied on the evidence on the balance of probabilities that the document came to the notice of the intended recipient.
[9]Ibid at paras 122 and 123.
The plaintiff has acted diligently but that is not enough. The requirements of s 109X has not been met and the plaintiff must fail in relation to service. The plaintiff on the evidence cannot demonstrate that the statutory demand came to the attention of the defendant. It can show that it got to Level 17, 181 William Street, Melbourne, but there is no evidence that it was forwarded to the defendant and the director of the defendant does not acknowledge receipt. Ms Taylor believes that is she received the demand it would have been sent to the principal place of business. If sent, the mail may have been incorrectly addressed, or not delivered to the principal place of business. An acknowledgement of receipt by the director would be sufficient to prove service, but there is no acknowledgment here.
Mr Dorning gave evidence regarding this issue. If I was to find the demand was served then I would be in effect making findings that the defendant had sworn a false affidavit and given false testimony under oath. I accept that the statutory demand did not come to his attention. If the demand had been served at the registered office, it would not matter.
The Validity of the Demand
A statutory demand is defined in s 9 of the Act as a document that is or purports to be served under s 459E.
Section 459E(3) of the Act provides:
459E(3) Unless the debt, or each of the debts, is a judgment debt, the demand must be accompanied by an affidavit that:
(a)verifies that debt, or the total of the amounts of the debts, is due and payable by the company; and
(b)complies with the rules.
The defendant submits that the statutory demand (dated 22 December2010) was fundamentally defective because the demand was based on a judgment debt and the affidavit purporting to verify the demand was sworn on 22 December 2010, several weeks before the demand was made on 18 January 2010 (the date of service). The date of making the demand pursuant to s 9 and s 459 of the Act is said to be the date the demand is actually served. In those circumstances it is submitted that the affidavit cannot be said to verify the debt as at the time the demand was purportedly made.
In support of its submission the defendant relies on Wildtown Holdings Pty Ltd v Rural Traders Co Pty Ltd.[10] In that case the affidavit accompanying the statutory demand was sworn prior to the date of issue of the demand. The Court of Appeal of the Supreme Court of Western Australia held that the demand was defective. Tempelman J said: [11]
It is noteworthy that despite the conclusion reached by Santow J, he required an affidavit to be filed “in conformity with s 459E(3) stating the up‑to‑date position”. In other words, even though the inadequacy of the affidavit which accompanied the statutory demand was insufficient to invalidate the winding‑up application, it was nevertheless necessary to comply with s 459E(3) of the Law.
In my view, the position is a fortiori in the present case. An affidavit executed two days before a statutory demand cannot verify that demand. The fact that no updating affidavit was filed is, in my view, another reason why the demand should be set aside pursuant to s 459J(1)(b). With all respect to the Master, I do not think it was open to him to waive compliance with a statutory requirement relating to the contents of an affidavit accompanying a statutory demand.
[10](2002) 172 FLR 35.
[11]Ibid at paras 57 and 58.
In my view the demand was made on the date that it was issued and therefore the affidavit verifies the debt as due and payable by the company. Most statutory demands are served in accordance with the provisions of s 109X of the Act which allows service by ordinary post. The date of service is not the date that the letter is posted but the date the letter is delivered to the registered office. If the submissions of the defendant are correct, that all demands served by post would be fundamentally defective because the affidavit purporting to verify the demand was sworn on a different date to which the demand was served. The affidavit here was served on the same day that the demand was issued.
Conclusion:
The statutory demand is a valid demand as it complies with section 459E(3) of the Act but the statutory demand was not served on the defendant the application will therefore be dismissed.
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