Re Cocoa Bean Enterprises Pty Ltd (Preliminary Question re Service) - [2022] VSC 721

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2022 03883

IN THE MATTER of COCOA BEAN ENTERPRISES PTY LTD (ACN 120 092 015)

BETWEEN:

COCOA BEAN ENTERPRISES PTY LTD (ACN 120 092 015)	First Plaintiff
PHPR CONVENIENCE PTY LTD (ACN 141 607 150)	Second Plaintiff
v
DEPUTY COMMISSIONER OF TAXATION	Defendant

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JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2022
DATE OF JUDGMENT:	25 November 2022
CASE MAY BE CITED AS:	Re Cocoa Bean Enterprises Pty Ltd (Preliminary Question re Service)
MEDIUM NEUTRAL CITATION:	[2022] VSC 721

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CORPORATIONS – Application to set aside statutory demand pursuant to s 459G of the Corporations Act 2001 (Cth) – Trial of preliminary question pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 as to when statutory demand was served at registered office – Applicability of presumption of service by post to the registered office – s 109X, Corporations Act 2001 (Cth); ss 28A and 29 Acts Interpretation Act 1901 (Cth); s 160 Evidence Act 2008 (Vic) considered – Presumption that service occurred on seventh business day after posting rebutted as evidence establishes that service occurred earlier than that date.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr B. Petrie of counsel	Rigby Cooke Lawyers
No appearance by the Second Plaintiff
For the Defendant	Mr E Cummings, solicitor	ATO Litigation & Legal Services

HER HONOUR:

Introduction

By originating process filed 3 October 2022, the Plaintiffs seek orders pursuant to s 459G of the Corporations Act 2001 (Cth) (‘Act’) that a statutory demand dated 1 September 2022 (‘Statutory Demand’) served on the First Plaintiff, Cocoa Bean Enterprises Pty Ltd (‘Company’) be set aside.

By orders made on 9 November 2022 by Hetyey AsJ, his Honour directed that the question of when the Statutory Demand was served on the Company be determined as a preliminary question pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 before the balance of the proceeding (‘Preliminary Question’). His Honour then listed the Preliminary Question for hearing on 22 November 2022 at 10.30am before Gardiner AsJ, however that has been re-allocated to me. Hetyey AsJ made orders for the filing and service of any further affidavit material by the Defendant and the Company and for short submissions of no more than 8 pages.

Accordingly, the only issue before me is the Preliminary Question.

The Defendant relies upon the following:

(a) affidavit of Tejashree Gorakhia sworn 7 November 2022 (‘Gorakhia Affidavit’);

(b) affidavit of Christopher William Hallinan sworn 11 November 2022 (‘Hallinan Affidavit’);

(c) affidavit of Annette Trefoni sworn 11 November 2022 (‘Trefoni Affidavit’); and

(d) the written outline dated 18 November 2022 (‘Defendant’s Written Outline’).

The Company relies upon its written outline dated 18 November 2022 (‘Company’s Written Outline’). The Company did not file any evidence specific to the Preliminary Question.…

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: [2022] VSC 721
Decision Date: 25 November 2022

CaseChat Overview and Summary

In the case of Re Cocoa Bean Enterprises Pty Ltd (Preliminary Question re Service), the respondent, a company, sought to set aside a statutory demand on the basis that it was not properly served. The matter was heard in the Supreme Court of Victoria, where a preliminary question was tried to determine when the statutory demand was served at the company's registered office. The legal issues before the court involved the application of the presumption of service by post under section 109X of the Corporations Act 2001 (Cth), and the extent to which this presumption could be rebutted by evidence establishing an earlier date of service.

The court examined the interaction between section 109X of the Corporations Act, section 28A of the Acts Interpretation Act 1901 (Cth), and section 160 of the Evidence Act 2008 (Vic). It considered whether the presumption of service, which operates on the seventh business day after posting, could be rebutted. The court found that the presumption could indeed be rebutted if evidence demonstrated that service occurred earlier than the date specified by the presumption. In this case, the evidence provided by the applicant was sufficient to establish that the statutory demand was served on a date earlier than the seventh business day, thereby rebutting the presumption.

The court concluded that the statutory demand was served on the relevant date as established by the evidence, and thus, the presumption of service did not apply. This finding has significant implications for the respondent's application to set aside the statutory demand. The court's decision reinforces the principle that the presumption of service by post can be rebutted if there is clear evidence to the contrary.

In light of the findings, the court made orders that the statutory demand was validly served, and the respondent's application to set aside the statutory demand was dismissed.

Orders