Re Myer & Son Family Butchery Pty Ltd

[1998] QSC 2

IN THE SUPREME COURT
OF QUEENSLAND

App. No.14 of 1998

Brisbane

Before the Hon. Mr Justice Shepherdson

[Re Myer & Son Family Butchery Pty Ltd]

IN THE MATTER of The Corporations Law

and

IN THE MATTER of WAYNE MYER & SON FAMILY BUTCHERY PTY LTD
ACN 003 845 476 and PAUL MICHAEL TIGHE

CATCHWORDS:           CORPORATIONS LAW - Application to set aside statutory demand for payment - whether application is made out of time - ss.459G, 220(1), 109Y (Cth) Corporations Law considered - 109Y(b) meaning of “unless the contrary is proved - demand served by post on registered office of applicant - registered office at an accountant’s office - delivery of notice to registered office not in dispute - whether applicant discharged burden under s.109Y(b) of proving that delivery occurred outside ordinary time for delivery by post and that the application was made within 21 days of service.

Counsel:Mr K.N. Wilson for the applicant.

Mr K.A. Barlow for the respondent.

Solicitors:Biggs & Biggs Francis & McGregor as town agent for Woodward Lawyers for the applicant.

Russell & Co Solicitors for the respondent.

Hearing date:          20 January 1998

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 30 January 1998

The abovenamed Wayne Myer & Son Family Butchery Pty Ltd has applied for an order that  the creditors statutory demand for payment of debt dated 27 November 1997 issued by the respondent Paul Michael Tighe against it be set aside.

The primary question is whether or not I have jurisdiction to make such an order.

By s.459G of the Corporations Law the application to set aside the statutory demand (made in accordance with s.459G) must be made within 21 days after the demand is served. David Grant and Co Pty Ltd v. Westpac Banking Corporation (1994) 184 CLR 265 establishes this and both sides accept that I have no jurisdiction to extend that time of 21 days.

The first step in the primary question before me focuses on ss.220 and 109Y of the Corporations Law. Rule 14(1)(b) of the Corporations (Queensland) Rules. 1993 has also been mentioned.

Under s.220(1) a document may be served on a company by leaving it at or by sending it by post to the registered office of the company.

In the case before me the registered office of the applicant was c/- Ross W Kerr, 108 Marine Parade, Kingscliff in the State of New South Wales and the statutory demand was addressed to the  applicant at that registered office address.

The evidence shows that the statutory demand was properly addressed to the applicant at that registered office address.  The evidence also shows that on 3 December 1997 the statutory demand was posted as a letter by pre-paid post in Brisbane.

The application before me was filed in this Court on 5 January 1998. 

Section 109Y provides:-

“Where a provision of this Law authorises 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:

(a)the service is taken to be effected by properly addressing and posting (under prepaid post) the document as a letter to the last known address of the person to be served; and

(b)unless the contrary is proved, the service is taken to have been effected at the time at which the letter would have been delivered in the ordinary course of post.”

There is no dispute concerning compliance with sub-para.(a) of s.109Y.

The debate before me centred on sub-para.(b) and especially the phrase “unless the contrary is proved”.

There is evidence before me which shows that in the ordinary course of post a letter posted in Brisbane on 3 December would have been delivered at Kingscliff on 4 December 1997.  If I accept that evidence that is the time at which service is taken to have been effected unless the contrary is proved.

Even if I allowed for delivery on 5 December, unless the contrary were proven the application before me is well out of time.

The applicant has attempted to satisfy me that the notice was served or delivered much later than 4 or 5 December.  It relies primarily on an affidavit of Ross Winston Kerr a Certified Practising Accountant whose office at 108 Marine Parade, Kingscliff in the State of New South Wales, is, as he says in his affidavit, the registered office of the applicant.  I now quote from his affidavit:-

“3. My office receives correspondence on behalf of the applicant on a regular basis.  Any and all such mail received on behalf of the applicant is on forwarded to Mr Wayne Myer,  director of the applicant on the day of receipt.  It is my experience that documents so forwarded are received by Mr Myer the next day.

4. In respect of a statutory demand issued by Mr Paul Michael Tighe posted to my office in December 1997 my office’s receptionist in December 1997 was a temporary employee due to the absence of my permanent receptionist.  The relief receptionist had been instructed to on forward all the applicant’s mail as hereinbefore deposed to.  To the best of my knowledge those instructions were invariably complied with.

5.  My office and receptionist does not otherwise kept (sic) a record of mail received on behalf of the applicant and on forwarded to Mr Myer.”

I should here say that the evidence from Mr Myer is that he received the statutory demand on 19 December 1997.  Mr Kerr has addressed this and in para.6 of his affidavit swore:-

“If Mr Wayne Myer received the statutory demand on 19 December 1997 then it would have, on my experience in dealing with such correspondence have been received by my office on 18 December 1997.”

In my respectful view the above statements by Mr Kerr fail to show that the statutory demand was received at his office on any day other than 4 or 5 December.  His evidence appears to be based on hearsay but the source of his information and belief is not stated.  His office did not keep any record of mail received on behalf of the applicant and on forwarded to Mr Myer.  Indeed, if one were being technical, and Mr Barlow did not take this technical point, the affidavit failed to comply with the provisions of Order 41 rule 3.  In addition to relying on Kerr’s affidavit, the applicant has relied on an affidavit of Stephen Walter Woodward a Coolangatta Solicitor who has deposed to the vagaries of the postal service deliveries between Brisbane and the northern New South Wales in the pre-Christmas period.  He has given one example where documents posted from the Brisbane GPO on 23 December 1997 were received by him on 7 January 1998.  I find Mr Woodward’s affidavit of no assistance on the point now before me. 

I find that the applicant has failed by a wide margin to discharge the onus it bears of proving that the statutory demand was served other than on 4 or 5 December 1997.

I dismiss the application with costs to be taxed.  I add that this case stands as a warning to companies who have registered offices in places other than the company’s actual place of business.  It is also a warning to persons such as Mr Kerr of the need to keep proper records and have in place an appropriate system for dispatching to the company concerned all documents received by him addressed to that company.