Re Futre Developments Pty Ltd

[2014] NSWSC 1712

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

In the matter of Futre Developments Pty Ltd [2014] NSWSC 1712

Hearing dates:

17 November 2014

Decision date:

05 December 2014

Jurisdiction:

Equity Division - Corporations List

Before:

Robb J

Decision:

(1) Order that the originating process be dismissed.

(2) Order the plaintiff to pay the defendant's costs of the proceedings.

(3) Exhibits may be returned in accordance with the Rules

Catchwords:

CORPORATIONS - Winding up - Statutory demand - Application to set aside a creditor's statutory demand - preliminary question - identification of the date of service of the statutory demand - timing of service crucial to outcome of proceedings - registered office on first floor - mailbox on ground floor

Legislation Cited:

Acts Interpretation Act 1909 (Cth) s 5C, 29
Acts Interpretation Act 1956 (Qld) s 39
Corporations Act 2001 (Cth) ss 109X, 459G
Evidence Act 1995 (NSW) s 160
Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (Cth) s 4
Hire Purchase Act 1959 (Qld) s 42
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Brand & Media Pty Ltd v Aeropack Australia Pty Ltd [2007] NSWSC 854
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Deputy Commissioner of Taxation v Barroleg Pty Ltd (1997) 37 ATR 190
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
In the matter of Carbon and Energy Reductions Pty Ltd [2014] NSWSC 923
LawCover Pty Ltd v Swart [2007] NSWSC 306
Re Watson Road Moss Vale Developments Pty Ltd [2013] NSWSC 783
Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176

Category:

Principal judgment

Parties:

Futre Developments Pty Ltd (plaintiff)
Joseph Hoi (first defendant)
Hoi Constructions Pty Ltd (second defendant)

Representation:

Counsel: P Wallis (plaintiff)
C D Wood (defendants)
Solicitors: Konstan Lawyers (plaintiff)
Vincent Young (defendants)

File Number(s):

2014/296203

Judgment

Introduction

1. On 9 October 2014 the plaintiff, Futre Developments Pty Ltd, served on the defendants, Mr Josef Hoi and Hoi Constructions Pty Ltd, the originating process in this matter. The plaintiff sought an order setting aside a creditor's statutory demand served by the defendants on the plaintiff, on the ground that there is a genuine dispute as to the existence of the debt that is claimed by the defendants.

1. When the matter came on before me on 17 November 2014, the parties jointly asked the Court to deal with a preliminary question, as if an order for the separate determination of that question had been made under UCPR r 28.2.

1. The issue for separate determination was the identification of the date upon which the defendants served the statutory demand on the plaintiff. The originating process seeking an order that the statutory demand be set aside was, as I have noted, filed on 9 October 2014, and, as I understand it, was served on the defendants together with the supporting affidavit on that date. The effect of s 459G of the Corporations Act 2001 (Cth) is that the application to set aside the statutory demand will be incompetent unless the application and the supporting affidavit was filed and served on the defendants within 21 days after the statutory demand was served on the plaintiff: David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265. That requirement will be satisfied if the statutory demand was served on the plaintiff on or after 18 September 2014, but not if it was served on an earlier date.

1. The defendant asserts that the statutory demand was served on the plaintiff on 17 September 2014. If that is correct, then the plaintiff's application is incompetent. The plaintiff responds that it did not receive the statutory demand at its registered office until 19 September 2014, so that it is entitled to maintain its application. Accordingly, the resolution of the dispute as to when the statutory demand was served will determine the outcome of these proceedings, if the defendant's assertion prevails. As the parties jointly asked the Court to deal with this issue separately, and as it seems that the parties will be saved costs, and the Court's time will be saved, if the defendant succeeds, I acceded to the parties' request.

Arrangements for receipt of postal articles

1. The address of the registered office of the plaintiff in the records maintained by ASIC is Level 1, 82 Canterbury Road, Petersham, NSW, 2049. That is the address of the plaintiff's accountant, Mr Emmanuel Karamihas.

1. Mr Karamihas' office is, as the address suggests, on the first floor of the building. Mr Karamihas maintains a letterbox at street level next to the doorway into the business that occupies the building on the ground floor. Photographs of the letterbox that were in evidence show that it is set into the tiled wall. The words "1st Floor MAIL" have been written by hand on the letterbox. There is no obvious reference to Mr Karamihas' firm's name. There appears to be no facility for the letterbox to be opened from the outside, and there is no evidence of a lock. I infer that Mr Karamihas must be able to gain access to the letterbox from within the ground floor of the property by entering the premises occupied by the tenant on the ground floor. Mr Karamihas did not give any evidence concerning limitations on his ability to gain access to the contents of his letterbox from within the premises occupied by the ground floor tenant. I infer from the evidence that he did give that he had unimpeded access to the letterbox during ordinary business hours. (It appears from the photograph annexed to one of Mr Karamihas's affidavits that the ground floor business is a health centre called "Curves". If that is so, Mr Karamihas may have even more extensive access to the letterbox because of extended opening hours of the health centre).

1. Mr Karamihas maintains a post office box, being PO Box 510, Petersham NSW 2049. He said in cross-examination that officers of the Petersham Post Office commonly place letters addressed to Mr Karamihas ' street address in his post office box. He has not entered into any formal agreement with Australia Post that letters addressed to his street address should be deposited into his post office box, and the arrangement is apparently one spontaneously adopted by the local Post Office for reasons of convenience. Mr Karamihas has acquiesced in those arrangements.

1. Mr Karamihas opened up the letter from the defendant's solicitor that contained the statutory demand addressed to the plaintiff on 19 September 2014, and marked it "REC'D 19/9/14", and then initialled his annotation. He advised the plaintiff that the statutory demand had been received on the same day.

1. Mr Karamihas said in his second affidavit that all mail that is addressed to the street address of his office is delivered by one of two methods, being that it is placed in the letterbox at street level of 82-86 New Canterbury Road, Petersham NSW; or it is placed in his post office box. (As I have stated above, the registered office of the plaintiff in ASIC's records is Level 1, 82 Canterbury Road, and is not 82-86 New Canterbury Road. The defendant's solicitor addressed the letter in conformity with the address of the registered office in ASIC's records. Neither party suggested that this difference in the description of Mr Karamihas' street address had any significance).

1. According to Mr Karamihas, the majority of the mail addressed to the street address of his office is placed into the post office box, although some of that mail is also placed into the letterbox near the front of the building at street level.

1. On most business days during the week Mr Karamihas commences his day by attending the local Post Office to collect mail from his post office box at approximately 8 AM. Soon after that he collects any mail located in the letterbox, when he is entering the building in which his office is located. After he has done some administrative work, he then usually leaves his office for the balance of the day, as he does the vast majority of his work on site for his clients at their offices.

1. Approximately once to twice per week he does not have the opportunity to attend to his post office box, or his office, at all in the morning, as he is required on site by his clients. On those occasions he checks the letterbox and the post box on the next day when he attends his office.

Receipt of envelope containing statutory demand

1. Mr Karamihas noted the evidence given on behalf of the defendant that a tracking receipt shows that the covering letter for the statutory demand was delivered by Australia Post at 11:22 AM on Wednesday, 17 September 2014; and that the tracking receipt does not say whether the express post envelope was delivered to his postal box at the local Post Office, or to the letterbox in the front of the building in which his office is located.

1. Given his practice in collecting his mail both from his post box and the letterbox first thing in the morning, Mr Karamihas said that he would not have collected the envelope until the morning of Thursday, 18 September 2014, if he had collected the mail on that date.

1. However, Mr Karamihas confirmed the evidence in his first affidavit that he opened up the envelope containing the covering letter, the statutory demand, and the supporting affidavit, on Friday, 19 September 2014.

1. Mr Karamihas does not recall if he was absent from his office on Thursday, 18 September 2014. His calendar does not make clear whether he went directly to a client's office on that day.

1. Mr Karamihas was cross-examined, and it was not suggested to him that his evidence that he opened the envelope containing the statutory demand on the morning of 19 September 2014 was wrong. I accept his evidence.

1. On the balance of probabilities the inference must be drawn that Mr Karamihas did not attend his office on 18 September 2014.

1. The effect of Mr Karamihas's evidence was that he could not say whether or not he collected the envelope containing the statutory demand from his letterbox at street level, or whether he collected it from his post office box.

1. A solicitor employed by the solicitor for the defendant, Ms Lovely, affirmed an affidavit in which she gave evidence of the steps that she took to post the envelope containing the statutory demand to the registered office of the plaintiff. Ms Lovely properly addressed the envelope. At about 6 PM on 15 September 2014 she placed a letter to the plaintiff dated 15 September 2014, the statutory demand dated 15 September 2014, and an affidavit affirmed by Mr Josef Hoi on 15 September 2014 in an express post prepaid envelope addressed to the plaintiff at its registered office. At about 6:10 PM she removed the Australia Post tracking identification sticker from the express post prepaid envelope, and retained the sticker. She posted the envelope at about 8 PM on 15 September 2014 at the yellow express post box located at 299 Elizabeth Street, Sydney.

1. On 8 October 2014 Ms Lovely searched the Australia Post website, and obtained the following result in relation to the tracking of the express post prepaid envelope:

Wed 17 Sep 2004 11: 22 Delivered

1. This notation plainly does not specify the place or receptacle into which the envelope was delivered by Australia Post.

Agreement between the defendant and Australia Post

1. Ms Lovely gave detailed evidence of the terms upon which Australia Post accepted mail for delivery, which she obtained from the Australia Post website. Ms Lovely explained in detail the steps that she took to obtain the information, and the annexed screenshots. The plaintiff did not object to information of this nature being received into evidence.

1. The information included statements made by Australia Post concerning guaranteed delivery times, if prepaid express post envelopes were delivered to special post boxes in an identified range of locations for delivery to other identified locations. I need not relate this evidence, as there is no doubt in the present case about the time of posting and delivery. The issue concerns the manner and place of delivery.

1. Ms Lovely searched Australia Post's "General Terms & Conditions". She gave the following evidence concerning the terms governing delivery of articles. I have omitted the detail concerning the structure of the webpages, as well as definitions of terms that do not require special consideration:

The term "delivery" is defined in the "Dictionary"... as follows:

"Delivery" includes the following:

...

(iv) an article addressed to a person receiving mail at premises other than private residential premises is deemed to be delivered by:

(a) placing it in a receptacle established at those premises for the receipt of articles;

(b) handing it to that person, to the proprietor or manager of the premises or to a person who is apparently employed at the premises; or

(c) if a parcel post article, left otherwise in accordance with the written instruction of the addressee.

...

(xvi) an express post article, parcel or a parcel post satchel will be deemed to have been delivered when it is delivered in accordance with the provisions contained in this dictionary for delivery of articles lodged within Australia for carriage in Australia provided, however, that if in the reasonable opinion of Australia Post:

...

(b) it cannot be delivered to a street address, a card is left at that address advising the addressee that an article is available for collection from an office of Australia Post; and

a person taking collection of an article, may be required to give Australia Post a receipt for it.

1. "Express Post article" is defined in the "Dictionary" as:

"Express Post article means an article lodged for carriage by the Express Post service or the Express Post International service."

1. The terms and conditions relating to "Express Post" contain the following term concerning methods of delivery to commercial or professional addresses:

By delivery to:

A mailbox or a single group of mailboxes that meet Australia Post's standards for size, location and numbering, or

if the building abuts a road, a single mailbox or a group of mailboxes within the foyer close to the entrance of the building, or

if the building abuts a road, in bulk to a staffed counter or reception area close to the entrance of the building.

Delivery of envelope by Australia Post

1. The principal factual question is whether the Court should find that, at 11:22 AM on Wednesday, 17 September 2014, the envelope containing the statutory demand was placed by Australia Post in Mr Karamihas's letterbox at ground level in the building containing Mr Karamihas's office, or whether I should find that the evidence is insufficient to permit the Court to make any positive finding as to where the envelope was delivered by Australia Post, with the result that it may have been delivered into the letterbox or Mr Karamihas' post office box in circumstances where it is not possible to decide which form of delivery occurred.

1. The defendant did not tender evidence from any officer of Australia Post that directly proved how the envelope in question was delivered. I do not know whether or not it is feasible for such evidence to be obtained. Nor did the defendant lead evidence to establish the physical procedures adopted by Australia Post in relation to the delivery of express post prepaid envelopes.

1. I infer from Ms Lovely's evidence that she placed the envelope in a particular yellow express post box by which Australia Post made special arrangements for the posting of express post prepaid envelopes, to separate such envelopes from those posted in the ordinary post. The evidence also establishes that Australia Post does not record the time that the envelope is accepted by Australia Post, if it is posted in a yellow express post box. Specifically, there is no direct evidence about whether Australia Post makes special arrangements for the direct delivery of express post envelopes that do not involve its officers at local post offices being engaged in the process of delivery. If there was evidence that Australia Post used a separate delivery system for express post envelopes, which did not involve officers at local post offices, it would be most unlikely that the officers who affected delivery would place the envelope in a post office box owned by the same person who had the street address on the envelope. Such officers would be unlikely to know that the person with the street address also had a post office box. It would only be if officers at the local post office became involved in the delivery process that there would be any likelihood that such officers may elect to place the envelope in the post office box.

1. It must be remembered, however, that the envelope was not addressed to Mr Karamihas. It was addressed to the plaintiff at Mr Karamihas's street address. That is a fact that tells against the likelihood that, even assuming that officers of the local post office played a part in the delivery of the envelope, it was placed in Mr Karamihas' post office box. On balance it is improbable that officers would ignore the street address, and, knowing that the address was that of Mr Karamihas, although he was not the addressee, simply deposit the envelope in his post office box for convenience.

1. In Deputy Commissioner of Taxation v Barroleg Pty Ltd (1997) 37 ATR 190 at 193, 194 Young J (as His Honour then was) was not prepared to act upon evidence that the express post envelope in question was stamped "Guaranteed Day Delivery" by Australia Post, that it was in fact delivered the next day, because the guarantee given was not that the letter would be delivered the next day, but only that if the letter was not delivered the next day, the sender would receive another express post envelope free. If the issue in question in the present case had been the time when the envelope containing the statutory demand was delivered, I might not have been prepared to give great weight to the agreed timetable for delivery, as that may be regarded more as a statement of aspiration than a statement of fact.

1. However, in my view the terms and conditions binding Australia Post in relation to the steps that it will take to deliver express post envelopes should be treated differently to promises as to the time that it will take to effect delivery. The nature of the delivery exercise may possibly make it difficult for Australia Post to ensure that delivery takes place within a particular period, but if Australia Post promises to effect delivery by taking specific, identified steps, it is unlikely that Australia Post would establish a system for delivering express post envelopes that departed from the agreed process. Australia Post would risk liability if express post articles went astray because it adopted a system for delivery that left the actual mode of delivery to the discretion of officers in local post offices.

1. The fact that Australia Post records the time of delivery to the minute shows that the system adopted by Australia Post involves a particular officer, who has responsibility for effecting the delivery, making a specific recording of the time that delivery occurred. It is in my view improbable that the officer concerned, who, at the time of delivery will have the envelope in his or her hand, as well as the device for recording the time of delivery, will look at the address on the envelope and place the envelope in a post office box, rather than a letterbox at the correct street address, and will do so notwithstanding that the owner of the post office box is a person other than the addressee stated on the letter.

1. Mr Karamihas did not give any positive evidence that would justify a finding on the balance of probabilities that the envelope containing the statutory demand was deposited by Australia Post in his post office box. He spoke of mail that is addressed to the street address of his office. While the envelope in question had Mr Karamihas's street address on it, it was not actually addressed to him, but was addressed to the plaintiff. Mr Karamihas did not specifically deal with the question whether his belief that the majority of mail addressed to the street address of his office was placed in his post office box applied equally to mail that was not addressed to him. The evidence given by Mr Karamihas was general, and it seems that he did not pay attention, when he collected mail in the morning from his post office box and the street letterbox, whether the envelopes were collected from one or the other place.

1. I find on the balance of probabilities that Mr Karamihas collected the envelope containing the statutory demand from his letterbox on 19 September 2014, but the envelope was placed in the letterbox by Australia Post at 11:22 AM on 17 September 2014.

1. It is obvious, but a person who is responsible for the receipt of letters posted to clients addressed to the client at the client's registered office, being the street address of the person, must put in place an administrative arrangement to ensure that the contents of the letterbox are retrieved every single day that Australia Post delivers mail to that letterbox. If the letterbox is inspected only once per day, that inspection should take place before the post is delivered on that day, so that the person will be able to determine with confidence that all letters retrieved from the letterbox on a day were delivered by Australia Post on the previous day.

Principles governing service by post

1. Section 459E of the Corporations Act permits a person to serve a statutory demand on a company, and s 459G(a) permits the company to apply to the Court for an order setting aside the statutory demand, but the application can only be made within 21 days after the demand is served.

1. Section 109X(1)(a) of the Corporations Act provides:

(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 ...

1. The Acts Interpretation Act 1909 (Cth) as in force on 1 January 2005 applies to the Corporations Act: see s 5C of that Act, as s 4 of the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (Cth) commenced on that day. Section 29 of the Acts Interpretation Act on that day provided:

(1) Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

(2) This section does not affect the operation of section 160 of the Evidence Act 1995.

1. Section 160(1) of the Evidence Act 1995 (NSW) provides:

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

1. As in this case the envelope containing the statutory demand was posted, it is not necessary to consider the cases that deal with the issue of what is required before a document may effectively be served on a company by leaving it at the company's registered office: see the authorities discussed by Bergin CJ in Eq in In the matter of Carbon and Energy Reductions Pty Ltd [2014] NSWSC 923. If a document is required to be left at the company's registered office, then the document may not be properly served by being left at the registered office, if it is placed in a letterbox that is not actually part of the premises that constitute the registered office.

1. However, where the document is served by posting to the registered office the position will be different. The first part of s 29(1) set out above has the effect that service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter. The service takes place by posting the document rather than leaving it at the registered office.

1. The second part of s 29(1) deals with the time when the document is delivered, and provides that "unless the contrary is proved" delivery is deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post.

1. As I have found that the envelope containing the statutory demand in the present case was delivered into Mr Karamihas's letterbox by Australia Post at 11:22 AM on 17 September 2014, there is specific evidence as to when the envelope was delivered that falls within the expression "unless the contrary is proved". The evidence did not establish when the envelope would have been delivered in the ordinary course of post. For the reasons given above when considering Barroleg, the term in the contract with Australia Post concerning its promised time for delivery does not, without more, prove when delivery would occur in the ordinary course of post.

1. In Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 at [55] Hodgson JA said:

In the case of postage, s 29 of the Acts Interpretation Act gives a rebuttable presumption; and if there is evidence establishing what actually happened, in my opinion the time service is effected would be when the document actually arrives at the registered office to which it is addressed..."

1. Handley JA at [1] and Hunt AJA at [65] agreed with this part of Hodgson JA's judgment in [55].

1. LawCover Pty Ltd v Swart [2007] NSWSC 306 per Barrett J (as His Honour then was) at [7], and Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176 per White J at [17] and [38] support the proposition that, if the actual time of delivery is proved, that is the time of service.

1. There is a question whether, if the statutory demand is served by post, delivery occurs when Australia Post places the envelope in a letterbox maintained by the party whose address is on the envelope, if the letterbox is in the vicinity of, but not actually part of, the actual premises of the registered office.

1. In the case of service by post, delivery will occur by post. The act of delivery will be the final step that is taken by Australia Post. As the document must be posted to the registered office of the company, the address must be the street address of the registered office, and not a post office box maintained by either the company, or the organisation that maintains the registered office of the company. If the company itself, or the organisation that maintains the registered office, provides a letterbox in connection with the street address of the registered office that satisfies the requirements of Australia Post, then the final step in the delivery of the document will be the placement of the document in the letterbox. Delivery to the street address of the registered office will take place by placement of the document in the letterbox, whether the letterbox is within the premises that contain the registered office of the company, or at some other place, most likely within the vicinity of those premises, where the letterbox for the street address of the registered office is located. Delivery of the document as the final step in the course of the post will be effective whether the letterbox is physically part of the premises which contained the registered office, or not.

1. In Fancourt v Mercantile Credits Ltd[1983] HCA 25; (1983) 154 CLR 87 the High Court considered the effect of s 42 (1)(c) of the Hire Purchase Act 1959 (Qld), which was materially in the same terms as s 109X of the Corporations Act. In the context of determining whether a notice posted in accordance with s 42 was delivered, the Court considered s 39(1) of the Acts Interpretation Acts 1956 to 1962 (Qld), which was in equivalent terms to s 29(1) of the Commonwealth Act, which I have set out above. At 94 the Court made the following observations concerning how, where the document is served by post, the letter should be addressed, and what are the circumstances that constitute delivery:

The point is a narrow one. It is not whether it was established that the Post Office at Sapphire was the appellants' last known place of abode. It may be conceded that it was not. But the address which is referred to in s 42(1)(c) is clearly intended to be a postal address and the postal address of a person's abode does not necessarily coincide with the physical location of that abode. It may be that postal services do not extend to a person's actual abode. Commonly in this country in rural areas the only mode of delivery of mail is to a roadside mail box or bag which is frequently designated by a number. The property or abode to which the mail is ultimately destined may be located some distance away from the mail box and not reached by postal services otherwise than by the use of the mail box. It could hardly be said in these circumstances that mail addressed to a person at an appropriate box was not addressed to him at his abode. In other circumstances persons who do not have this facility or do not wish to avail themselves of postal deliveries, arrange for mail to be delivered to a post office, sometimes to a specific box and sometimes not. In these instances the only means of reaching those persons at their abode by the use of postal services may be through the post office and a letter addressed to a person at the appropriate post office may be said to be addressed to him at his abode because that is his appropriate postal address in the sense that a letter so addressed may be expected to reach him at his place of abode in the ordinary course of post. A letter addressed to "Blackacre" care of a post office or a post office box is none the less addressed to Blackacre if that is the postal address which Blackacre has, notwithstanding that the physical location of the property and of the post office are different.

1. In my view this case is at least authority for the proposition that, if the company, or the organisation that maintains its registered office, establishes a letterbox in the vicinity of the registered office (even if at some distance from, and not part of the premises that are the registered office) so that Australia Post is invited to deliver letters addressed to the street address of the registered office into the letterbox, delivery takes place when the letter is deposited in the letterbox.

1. In Brand & Media Pty Ltd v Aeropack Australia Pty Ltd [2007] NSWSC 854, Hammerschlag J held, in relation to an envelope containing a statutory demand that was posted by express post to the street address of the registered office of the company, that the letter was not delivered at the time it was left by Australia Post at a mail room that serviced all of the premises in the building, which was located some 400 m from the registered office, which was operated by persons who were not under the control of the company, and where the company did not have unfettered access to the mail room. A representative of the company had to attend at the mail room and collect mail addressed to the company at a time during the day, after the mail had been processed by the persons who operated the mail room. His Honour held that delivery of the envelope did not take place until the envelope was collected from the mail room and taken to the premises of the registered office.

1. It is not necessary in this case for me to express any view about the correctness of this decision. In my opinion it is distinguishable from the present case. Here the letterbox was in the immediate vicinity of the registered office, and was plainly placed at street level so that officers of Australia Post could deposit mail in the letterbox. The existence of the letterbox, and its placement and the writing placed on it, invited Australia Post to deposit mail into the letterbox, rather than to go up to the first floor to deliver mail directly to Mr Karamihas's office. He had unfettered access to the letterbox, as I have found, at least during business hours.

1. In the present case the statutory demand was served on the plaintiff when it was placed by Australia Post in the letterbox at street level that was maintained by Mr Karamihas, notwithstanding that the letterbox was not located physically within Mr Karamihas's office.

1. It is not necessary for me to determine the date when service of the statutory demand would have occurred if, in fact, the envelope containing the statutory demand had been deposited by officers at the local Post Office in Mr Karamihas's post office box. While I do not decide the point, the balance of authority suggests that service would not have occurred when the envelope was placed in the post office box, but would have occurred when the envelope would have been delivered in the ordinary course of post, unless s 160(1) of the Evidence Act applies, in which event service would have occurred on the fourth working day after the envelope was posted.

1. In Falgat at [55] Hodgson JA said, by way of obiter dictum, in relation to a case where the company had made an arrangement with Australia Post to divert mail addressed to the registered office to another address: "If the post has been diverted so as to preclude delivery to that office, then the time service is effected would be no later than when the document actually arrives at the address to which it was diverted." Hunt AJA dealt with this question at [66] and [67]. His Honour held that if the company does not change the address of its registered office, but chooses to redirect its mail to another address, s 109X of the Corporations Act continues to apply. The document is deemed to have been served on the company at the time when it would have been delivered to that address of the registered office in the ordinary course of post, unless the contrary is proved by the company. His Honour said at [67]:

"The company is entitled to prove that the document arrived at its registered office at a different time from that if the document had been delivered to that address in the ordinary course of post. However, it does not do so ... by proving that it arrived at the address to which it had diverted its mail at a different time from that on which the document would have been delivered to its registered office in the ordinary course of post".

1. The effect of his Honour's reasoning appears to be that, if the document is delivered by Australia Post to the diverted address, delivery does not take place at that time, but equally it does not take place when the company receives the document at its registered office, after the document is collected from the diverted address. Delivery will take place in this situation when the document would have been delivered in the ordinary course of post. Handley JA at [1] agreed with Hunt AJA on this issue.

1. White J in Scope Data Systems at [86], after having considered Falgat and other authorities, said:

[86] In my view, delivery to the post office box cannot be equated with delivery to the company's registered office. I respectfully differ from the contrary view expressed by Hodgson JA in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (at [56]). I respectfully consider that his Honour's view is inconsistent with the authorities. It does not appear that the Court of Appeal was referred to the relevant authorities.

1. Although it is not necessary for me to express any view about the validity of this proposition, it may be noted that the provisions that provide for service on companies by post, and create presumptions as to the timing of delivery, were enacted at times when it was generally impossible to determine when Australia Post actually delivered mail (unless, say, fortuitously, the addressee was present at the time of delivery and was able to note the time). Now, if the express post service is used, the sender will be able to track the time of delivery, although, if it is possible that Australia Post may deliver the envelope to a post office box, or some other address to which the post is diverted by the party who is in control of the street address of the registered office of the company, the sender will not be able to find out the place where the envelope was actually delivered. If it turns out that Australia Post did not deliver the article to the street address, the information concerning the time and date of delivery will be misleading. The identification of the date of delivery will depend upon the application of the deeming provision in s 29(1), or the presumption in s 160, subject to evidence to the contrary, which may involve proof that at some later time the envelope was collected and taken to the registered office.

1. White J also considered at [27] to [65] a difference of judicial opinion as to whether or not s 160 of the Evidence Act 1995 (NSW) is displaced by s 109X of the Corporations Act and s 29(1) of the Acts Interpretation Act. (The latter provision contains an express statement that the section does not affect the operation of s 160 of the Evidence Act 1995, but that is a reference to the Commonwealth Act). White J concluded at [65] that the proposition that s 160 of the New South Wales Act was displaced was clearly wrong. In Re Watson Road Moss Vale Developments Pty Ltd [2013] NSWSC 783 Black J at [10] listed the subsequent cases that have accepted White J's conclusion.

1. If s 160 is displaced, then delivery will be deemed to have occurred when delivery would have happened in the ordinary course of post, unless the contrary is proved. If s 160 applies, then unless evidence sufficient to raise doubt about the presumption is adduced, it will be presumed that the postal article was received at the address on the fourth working day after having been posted. In the present case the evidence did not establish when the envelope containing the statutory demand would have been delivered in the ordinary course of the post. The day which is the fourth working day after the envelope was posted on 15 September 2014 is 19 September 2014. That is the date when Mr Karamihas in fact collected and opened the envelope containing the statutory demand.

1. Consequently, if, contrary to my finding, the envelope was placed by Australia Post in Mr Karamihas's post office box, and if it is correct that delivery of the envelope to the post office box does not determine the time of delivery, as White J has found, then it will not matter whether or not s 160 of the Evidence Act is displaced. As the evidence did not establish when the envelope would have been delivered in the ordinary course of the post, the only time of delivery that would be known to the Court is the date when Mr Karamihas collected the envelope from the post office box, which is the same date that would have been presumed by the application of s 160.

Conclusion and orders

1. It follows that if, in fact, Australia Post had delivered the envelope to Mr Karamihas's post office box, delivery would have occurred on 19 September 2014.

1. As I have found that the statutory demand was served on the plaintiff on 17 September 2014, the plaintiff's application to set aside the statutory demand was out of time under s 459G of the Corporations Act, and the application must be dismissed.

1. Accordingly, I make the following orders:

(1)   Order that the originating process be dismissed.

(2)   Order the plaintiff to pay the defendant's costs of the proceedings.

(3)   Exhibits may be returned in accordance with the Rules.

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Amendments

12 December 2014 - removed hyperlink reference

Amended paragraphs: coversheet

Decision last updated: 12 December 2014