Renegade Rigging Pty Ltd v Hanlon Nominees Pty Ltd
[2010] VSC 385
•31 August 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST
List E
SC 2010-00231
IN THE MATTER OF HANLON NOMINEES PTY LTD (ACN 089 340 116)
B E T W E E N:
| RENEGADE RIGGING PTY LTD (ACN 130 925 754) | Appellant |
| v | |
| HANLON NOMINEES PTY LTD (ACN 089 340 116) | Respondent |
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JUDGE: | FERGUSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June 2010 | |
DATE OF JUDGMENT: | 31 August 2010 | |
CASE MAY BE CITED AS: | Renegade Rigging Pty Ltd v Hanlon Nominees Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 385 | |
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CORPORATIONS – Statutory demand – Whether Court had jurisdiction to hear application to set aside – When statutory demand served – When application to set aside served – Whether good service by facsimile transmission – Affidavit served without exhibits – Corporations Act 2001 (Cth) ss 109X, 459G, Acts Interpretation Act 1901 (Cth) s 29, Evidence Act 2008 (Cth) s 160, Judiciary Act 1903 (Cth) s79.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S.B. Rosewarne | Slater & Gordon Lawyers |
| For the Respondent | Mr J. Kohn | Slidders Lawyers |
TABLE OF CONTENTS
1. Summary of the case and decision............................................................................................. 2
2. When was the statutory demand served?................................................................................. 3
2.1 Evidence as to service of the statutory demand................................................................ 3
2.2 Legislation relevant to service of the statutory demand................................................. 4
2.3 Was the statutory demand properly addressed, pre-paid and posted and, if so, when? 7
2.4 The ordinary course of post and whether there was proof of the contrary................... 8
2.5 Section 160 of the Evidence Act (Vic) has no role to play in this case............................. 8
2.6 The date on which the statutory demand is presumed to have been served............... 9
3. When was the application to set aside the statutory demand served and does the Court have jurisdiction to hear the application?............................................................................................... 9
3.1 Legislative requirements...................................................................................................... 9
3.2 Last day for service of the application................................................................................ 9
3.3 Evidence as to service of the application and affidavit................................................... 9
3.4 Issues as to service of the application............................................................................... 10
(a) Service by facsimile and the address for service.................................................................. 10
(b) Failure to send correcting affidavit..................................................................................... 15
(c) Service of the affidavit without the exhibits........................................................................ 15
4. Is leave required?........................................................................................................................ 17
5. Conclusion.................................................................................................................................... 18
HER HONOUR:
1. Summary of the case and decision
Renegade Rigging Pty Ltd served a statutory demand for $104,163.00 on Hanlon Nominees Pty Ltd. Hanlon has applied to the Court to set aside the demand. The grounds for setting aside the demand include that there is a genuine dispute as to the debt and an offsetting claim and that there is a defect in the statutory demand and affidavit in support of the demand.
There is a preliminary issue as to whether the Court has jurisdiction to hear the application. Section 459G(2) of the Corporations Act2001 (Cth) provides that an application to set aside a statutory demand may only be made within 21 days after the demand is served. The application and affidavit in support must be filed with the Court and served on the creditor within the 21 day period.[1] If that is not done, the Court has no jurisdiction to hear the application.[2]
[1]Section 459G(3).
[2]David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265.
Renegade submitted that the demand was served on 29 December 2009. Hanlon contends that the earliest that the demand was served is 6 January 2010.
The application to set aside the demand, together with two supporting affidavits and exhibits were sent by post to Renegade’s solicitors and were received on 21 January 2010. If Hanlon is correct as to the date of service of the demand, then there has been good service by post of the application and supporting material. However, if the date the demand was served is earlier than 31 December 2009, then the receipt of the documents on 21 January 2010 is outside the 21 day period. The issue then is whether good service was effected earlier by sending the application and one affidavit (without the exhibits) by facsimile transmission to Renegade’s solicitors on 19 January 2010. The faxed documents were not read until 20 January 2010.
The preliminary point as to jurisdiction was heard by an Associate Judge. His Honour determined that the Court had jurisdiction. In reaching that conclusion, the Associate Judge found that the statutory demand would have been received on 30 December 2009 and that the application to set aside the demand had been served by the facsimile transmission within the 21 day period prescribed by s 459G(2). His Honour made orders for the filing of further affidavit material and adjourning the application.
Renegade appeals from the orders made by the Associate Judge. The appeal is by way of rehearing.[3]
[3]Rule 77.06 Supreme Court (General Civil Procedure) Rules 2005 (Vic).
For the reasons set out below, I find that the demand was served on 29 December 2009 and the application and supporting affidavit were served within the 21 day period on 19 January 2010. It follows that the Court has jurisdiction to hear the application.
2. When was the statutory demand served?
2.1 Evidence as to service of the statutory demand
Evidence was given by the solicitor responsible for the drafting of the statutory demand that at approximately noon on 21 December 2009 he signed a covering letter and a statutory demand addressed to Hanlon Nominees’ registered office. The solicitor then placed the covering letter, statutory demand and supporting affidavit in the outgoing mail tray belonging to the junior office clerk. Although he could not specifically recall doing so on this occasion, his usual practice was to ensure that any enclosures were affixed to the relevant covering letter.
An office junior deposed that the outgoing mail tray is located on her desk and she described the usual process for dealing with the outgoing mail. This involves placing each item of mail in an envelope, ensuring that the address is visible, stamping the envelope and leaving the mail and an Australia Post mailing statement at the firm’s reception desk at approximately 3.25pm each day. The mail is then collected by a contractor. If there is mail to be sent after the contractor has taken the mail, then the office junior takes the mailing statement and additional mail items to the Albury Post Office at approximately 4.45pm. The office junior completed two mailing statements on 21 December 2009 – one that was taken by the contractor and the second that was taken by the office junior with the relevant mail items to the Albury Post Office. The mailing statements disclosed the number of items but not what they were nor to whom they were addressed.
The contractor gave evidence that on 21 December 2009 she collected the mail and mailing statement from the solicitors’ offices and, in accordance with the usual practice, took it to the Albury Post Office where she left it for processing by Australia Post.
The Australia Post postal manager deposed that a letter posted from Albury would ordinarily be delivered to a postal address in Geelong on the fourth business day after it is posted. Under cross‑examination, he gave evidence that although he was aware of postal strikes at the relevant time, there was no delay in mail leaving Albury. There was a possibility it could have been delayed once it got to Melbourne, but he did not know whether it was delayed or not. He only knew what happened in Albury and there were no delays there. He said that he was led to believe that the strikes had resulted in an extra business day for delivery.
There is no evidence as to when the statutory demand was received at the registered office of Hanlon, being the office of its accountant. The demand was received by Hanlon on 11 January 2010, having been sent on from the accountant’s office on 7 January 2010. However, that does not assist in determining when it was received at the registered office.
2.2 Legislation relevant to service of the statutory demand
Section 109X of the Corporations Act provides that one method by which a document may be served on a company is by posting it to the company’s registered office.
Section 29 of the Acts Interpretation Act 1901 (Cth) applies to the Corporations Act and provides:
(1)Where an Act 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 unless the contrary intention appears 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 s 160 of the Evidence Act 1995.
Section 160 of the Evidence Act 1995 (Cth) provides:
160 Postal Articles
(1)It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by pre‑paid post addressed to a person at a specified address in Australia or in any external Territory was received at that address on the fourth working day after having been posted.
…
(3)In this section:
working day means a day that is not:
(a)a Saturday or a Sunday; or
(b)a public holiday or a bank holiday in the place to which the postal article was addressed.
Section 160 of the Evidence Act 2008 (Vic) is in the same terms.
White J, in Scope Data Systems Pty Ltd v Gomanas representative of the partnershipBDO Nelson Parkhill,[4] provided a useful analysis of the interaction between s 29(1) of the Acts Interpretation Act (Cth) and s 160 of the New South Wales Evidence Act (which is in the same terms as the Victorian Evidence Act section).
[4](2007) 70 NSWLR 176.
His Honour considered the effect of s 79 of the Judiciary Act1903 (Cth). Section 79(1) provides:
(1)The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
His Honour noted that the effect of this section is that unless the Corporations Act or the Acts Interpretations Act (Cth) made other provision, s 160 of the State Evidence Act applied
as a means of proving when a document is taken to have been delivered in the ordinary course of post, or, if it is established that the document was not delivered in the ordinary course of post, when it is taken to be delivered.[5]
[5]At p.185.
His Honour noted that it would be a remarkable outcome if s 160 of the State Act did not apply in a proceeding in a State Court, yet the identical provision in the Commonwealth Act would apply in a proceeding in the Federal Court because of the effect of s 29(2) of the Acts Interpretation Act (Cth). His Honour concluded that s 29(1) of the Acts Interpretation Act (Cth) and s 160 of the State Evidence Act could operate harmoniously and held:
In my view, the position is as follows. If the evidence establishes the time at which the article is delivered to the postal address, then that is the time at which service is taken to be effected. If the evidence does not establish the time at which delivery was effected, then, unless the contrary is proved, delivery is deemed to have been effected in the ordinary course of post. What that is is a question of fact to be proved by evidence. In the absence of evidence on the topic, and in the absence of any presumption, there will be no proof that the article was delivered at a particular time. If it is established that the article was not delivered in the ordinary course of post, but the evidence does not establish when it was delivered, then again there will be no evidence as to the time of delivery. In either case, s 160 of the Commonwealth Evidence Act (applicable to Federal courts), or s 160 of the New South Wales Evidence Act (applicable to New South Wales courts), affords a presumption as to when the article is taken to have been delivered. The presumption may assist in proving when delivery was made in the ordinary course of post. If the evidence shows that the article was not delivered in the ordinary course of post, the presumption may assist in proof of when the document was delivered.[6]
[6]At pp.186-187.
I agree with his Honour’s analysis and reasoning. It follows that I must therefore consider initially whether:
(a)there is proof of posting the statutory demand and supporting affidavit and the date of posting;
(b)there is evidence of the ordinary course of post; and
(c)it has been established that the demand and supporting affidavit were not delivered in the ordinary course of post.
2.3 Was the statutory demand properly addressed, pre-paid and posted and, if so, when?
The parties accepted that proof of the posting of the statutory demand and supporting affidavit requires proof that the envelope:
(a)bore the correct name and address;
(b)contained the relevant document to be served;
(c)bore the correct cost of postage; and
(d)was placed in the post.[7]
[7]See Pearlburst Pty Ltd v Somers Resort Group Pty Ltd; Landmark Leisure Group Pty Ltd v Somers Resort Group Pty Ltd [2007] NSWSC 1126 and the authorities cited in that case.
The parties also agreed that the statutory demand was in fact received by Hanlon although (as is noted above) the date of receipt at its registered office has not been established.
It was submitted by Hanlon’s counsel that Renegade had not established that each of the elements listed above necessary for proving that the statutory demand had been posted occurred on 21 December 2009. Counsel submitted that a statement that the envelope was placed with the outgoing mail does not prove that it was posted. In support of that proposition he relied on Northumbrian Icecream Co Limited v Breakaway Vending Pty Ltd[8] (where the only evidence was that the relevant document had been placed with the outgoing mail and where there was no evidence of the document’s receipt) and Pearlburst Pty Ltd v Somers Resort Group Pty Ltd; Landmark Leisure Group Pty Ltd v Somers Resort Group Pty Ltd[9] (where the only evidence was that the solicitor had caused the relevant document to be sent without any detail as to how it had been “caused to be sent”).[10] However, in this case, the evidence goes further than in those cases and is distinguishable from them. Renegade’s evidence includes direct evidence of the statutory demand being addressed to Hanlon at its registered office and being placed in the outgoing mail tray at midday on 21 December 2009. There is also evidence of the usual procedures followed in respect of mail placed in that tray and that those procedures were followed on 21 December 2009. On the balance of probabilities, I am satisfied that the statutory demand was posted on that date.
[8][2006] NSWSC 1216.
[9][2007] NSWSC 1126.
[10]See also Re Green Global Technologies Limited; Grant Thornton (Qld) Pty Ltd v Green Global Technologies Limited [2009] QSC 262 (20 August 2009) which is to similar effect where the evidence was that the solicitor had caused the relevant documents to be forwarded by prepaid post. Daubney J noted that there was no evidence of the processes within the solicitor’s office: at [9].
In those circumstances, the presumption in s 29(1) of the Acts Interpretation Act (Cth) operates.
2.4 The ordinary course of post and whether there was proof of the contrary
The next matter I must consider is the ordinary course of post for the purposes of s 29(1) of the Acts Interpretation Act (Cth). On the basis of the evidence of the Albury postal manager, I am satisfied that in the ordinary course of post, mail sent from Albury to Geelong would be delivered on the fourth business day following posting.
The question then is whether there is proof to the contrary for the purposes of s 29(1). I am of the view that there is not. There is no evidence of when the statutory demand was received at Hanlon’s registered office, only evidence of when it was received by Hanlon having been forwarded to it from the registered office.
The evidence of the Albury postal manager does not prove that mail sent from Albury to Geelong was delayed by one day because of the postal strikes at the relevant time. He only knew what occurred at Albury and there were no delays there.
2.5 Section 160 of the Evidence Act (Vic) has no role to play in this case
Counsel for Hanlon urged me to find that there was sufficient doubt about when the statutory demand was received so that the presumption in s 160 of the Evidence Act (Vic) did not apply. Counsel pointed to the evidence of the postal manager as to the strike delays and the evidence given about service of the statutory demand on 21 December 2009, which he submitted was unclear. However, having found that the statutory demand was posted on 21 December 2009 and that there was evidence of the ordinary course of post which was not proved to the contrary, for the reasons stated above in section 2.2, s 160 of the Victorian Evidence Act has no work to do.
2.6 The date on which the statutory demand is presumed to have been served
Taking into account weekends and public holidays, the fourth business day after 21 December 2009 was 29 December 2009 and that is the relevant date on which the statutory demand is presumed to have been served.
3. When was the application to set aside the statutory demand served and does the Court have jurisdiction to hear the application?
3.1 Legislative requirements
Section 459G(1) Corporations Act provides that a company may apply to the Court for an order setting aside a statutory demand served on it. Under s 459G(2), an application may only be made within 21 days after the demand is served. Section 459G(3) provides:
An application is made in accordance with this section only if, within those 21 days:
(a)an affidavit supporting the application is filed with the Court; and
(b)a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
As noted above, if the application is served outside the 21 day period, then the Court has no jurisdiction to hear the application[11].
3.2 Last day for service of the application
[11]David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265.
The parties agreed that if I found that the date of service of the demand was 29 December 2009, then the last day for filing and serving the application to set aside the statutory demand and the affidavit in support was 19 January 2010.
3.3 Evidence as to service of the application and affidavit
The facts as to service of the application and affidavit are not in dispute.
On 19 January 2010, Hanlon filed the application to set aside the statutory demand and the affidavits in support. Later that day, Hanlon’s solicitor sent the application and affidavit in support (without exhibits) by facsimile transmission to Renegade’s lawyers. The facsimile was not read until 20 January 2010.
A second affidavit that had been filed was not served. That short affidavit goes to correcting the typographical error in the affidavit in support in respect of the date that the statutory demand was received by Hanlon.
The application, both affidavits and exhibits were posted on 19 January 2010 to Renegade’s solicitors and were received on 21 January 2010.
The statutory demand is in Form 509H[12] under s 459E(2)(e) of the Corporations Act. The demand provided that the address of the creditor for service of copies of any application and affidavit was:
Adams Leyland Lawyers
“Astra House”
55 Hovell Street
Wodonga VIC 3690
Telephone: 02 6058 6300
Facsimile: 02 6058 6333
3.4 Issues as to service of the application
[12]See Schedule 2 of the Corporations Regulations 2001 (Cth).
There are three issues that I must determine in relation to service of the application:
A.Was service of the application and supporting affidavit by facsimile an effective method of service and, if so, when?
B.Did the failure to send the short correcting affidavit mean that all the material required by s 459G(3)(b) had not been served in time?
C.Did the failure to send the exhibits to the supporting affidavit with the facsimile mean that service was not effective?
(a) Service by facsimile and the address for service
There are a number of authorities that support the proposition that service of an application to set aside a statutory demand will be effected if it is served at the address for service provided in the demand.[13] Service at that address is sufficient but does not exclude other means of service.
[13]Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; Players Pty Ltd v Interior Projects and ors (1996) 133 FLR 265; Rochester Communications Group Pty Ltd v Lader Pty Ltd (1997) 23 ACSR 380 per Beaumont and Moore JJ cf Whitlam J’s obiter dicta comments; Forza Finance Pty Ltd v Vergepoint Sales and Management Pty Ltd [2010] QSC 46; Australian Underwriting Agencies Pty Ltd v QBE Insurance Limited (1999) 17 ACLC 22.
There are also a number of authorities dealing with whether service by facsimile transmission of an application to set aside a statutory demand is effective.
In Seventh Cameo Nominees Pty Ltd v Holdway Pty Ltd,[14] the application to set aside the statutory demand and affidavit in support had been sent by facsimile transmission and received within the 21 day period. Chernov J held that the documents had been properly served. His Honour noted that service could be effected at the address for service and how they came to be there was irrelevant. His Honour referred to the oft quoted observation that it would be absurd if somebody who admitted to having received the document was held not to have been served with it.
[14]Unreported, Supreme Court of Victoria, 24 April 1998.
In Austar Finance Group Pty Ltd v Campbell,[15] the statutory demand did not include any facsimile number or email address but rather gave the creditor’s street address as the address for service. An unfiled originating process to set aside the statutory demand and a supporting affidavit was sent to the creditor by facsimile. After the originating process had been filed, and on the last day for service, the company’s solicitor attempted to send to the creditor by facsimile transmission a sealed copy of the application and the affidavit. However, the transmission failed so that only a blank page and a covering letter intended to be sent with the application were transmitted. The documents were then sent by email to the creditor and by mail. The creditor did not see the partially transmitted facsimile, open the email or receive the mailed copy of the application and affidavit until after the 21 day period had expired.
[15](2007) 215 FLR 464.
Austin J held that the application was not properly served within the 21 day period. In the course of his judgment, his Honour stated that:
Electronic transmission, whether by facsimile or e-mail, cannot constitute service for the purposes of s 459G(3) unless either:
it is shown that the documents electronically transmitted have actually been received in a readable form by the person to be served; or
the case falls within one of the special exceptions permitted by Rules of Court.[16]
[16]At pp.473-474.
In CFC Corporation Pty Ltd v Lanier (Australia) Pty Ltd,[17] Mildren J held that an application to set aside a statutory demand served by facsimile was not an authorised mode of service. His Honour went on to find that this was a mere irregularity which could be cured by an order under the relevant Northern Territory Supreme Court rules concerning service. Austin J in the Austar case disagreed with Mildren J that service by facsimile was not an effective mode of service in all circumstances. Noting that this decision had been the subject of unfavourable comment by the Full Federal Court in Rochester Communications Pty Ltd v Lader Pty Ltd[18] and that it was decided before the High Court decision in David Grant & Co Pty Ltd v Westpac Banking Corporation,[19] Austin J held that a direction confirming service could not be made to cure non‑compliance with the legal requirements for service of an application under s 459G. With respect, I agree with Austin J.
[17](1993) 116 FLR 456.
[18](1997) 23 ACSR 380.
[19](1995) 184 CLR 265.
In Australian Underwriting Agencies Pty Ltd v QBE Insurance Limited[20] the statutory demand contained a facsimile number in the address for service. The application to set aside the statutory demand and the supporting affidavit were transmitted to that number within the 21 day period. Merkel J held that the documents had been properly served for the purposes of s 459G(3) on two grounds:
(a)service was effected in the manner provided in the demand;
(b)there was in fact service at the address nominated for service by the documents being transmitted to that address by facsimile in the manner provided for in the statutory demand.[21]
[20](1999) 17 ACLC 22.
[21]Ibid, at p.24.
In Woodgate v Garard Pty Ltd,[22] Palmer J conveniently summarised the principles for service as follows:
(i)If a document required to be served on a company by the Corporations Act, whether or not it initiates proceedings, is served in accordance with any of the modes prescribed in s 109X Corporations Act and s 28A Acts Interpretation Act1901 (Cth) or, in the case of the s 459G application, at an address for service nominated in the Statutory Demand (all of which are included in “a prescribed mode”), the document is validly served and once service in a prescribed mode is proved, a proceeding cannot be challenged on the basis that the document did not actually come to the attention of the company … ;
(ii)where service is effected by leaving the document at the company’s registered office in accordance with s 109X(1)(a), it makes no difference whether the document is left within or outside normal business hours or within or outside the hours at which that office is kept open, and the date of service is the date of leaving the document, not when it comes to someone’s attention … ;
…
(iv)the prescribed modes are not exclusive of other modes of service: if some other mode of service is employed, whether it is good service depends on whether the serving party can prove to the Court’s satisfaction that the document actually came to the attention of an officer of the company who was either expressly or implicitly authorised by the company to deal directly and responsively with the document, or documents of that nature (“a responsible officer”). …;
(v)there is no special exception to the “effective informal service rule” in the case of service by e-mail or facsimile – the question remains whether that mode of service actually brought the document to the attention of a responsible officer … ;
(vi)where a document, not served in a prescribed mode, comes to the actual attention of the sole director of the company it will be presumed, unless a strong case to the contrary is shown, that the director is the responsible officer and the service is good … ;
(vii)a party invoking the effect of the informal service rule bears the onus of proving the time at which the document came to the actual attention of the responsible officer of the company and, in view of the serious consequences which may attend, the Court will not lightly draw inferences or make assumptions as to the time of service … . [23]
[22](2010) 78 ACSR 468.
[23]Ibid, at [44].
In the circumstances of this case where:
(a)the facsimile number was included in the statutory demand as part of the address for service; and
(b)the facsimile was transmitted within the 21 day period to the address for service,
the application has been served for the purposes of s 459G. I do not think that it matters that the material was not read until after the 21 day period had expired. Having been sent by facsimile transmission, the statutory demand was served in the manner provided and at the address nominated for service in it. As such, the requirements of s 459G have been fulfilled. The issue of informal service and the need for the documents to come to the attention of the recipient does not arise. Service in this case falls within the principles enunciated by Palmer J in paragraph (i) of the passage set out above. The Austar case is distinguishable as the facsimile number was not included in the address for service and, further, the complete originating process as filed was not transmitted.
Counsel for Renegade submitted that the Supreme Court (General Civil Procedure) Rules 2005 (Vic) require the application to set aside to be served personally because it is an originating process. He submitted that this required a copy of the document to be left with the person to be served and, relying on the Austar decision, contended that a document could not be left with the person to be served unless it happens that the person is present when the fax machine prints the transmission. However, if the requirements of s 459G(3) have been satisfied, it is not necessary to serve the application in accordance with the Supreme Court Rules.[24]
[24]Seventh Cameo Nominees Pty Ltd v Holdway Pty Ltd, Unreported, Supreme Court of Victoria, 24 April 1988; Players Pty Ltd v Interior Projects & ors (1996) 133 FLR 265.
Counsel also sought to rely on the decision of Mandie J in Fingalbay Pty Ltd v Rengay Nominees Pty Ltd[25] as authority for the proposition that a faxed copy of an affidavit is not an affidavit within the meaning of s 459G(3). However, his Honour was there considering whether a faxed copy of the affidavit supporting the application to set aside the demand that had been filed with the Court was sufficient for the purposes of s 459G(3)(a) and his decision was that the original affidavit must be filed. This is something quite different from the considerations that apply to service of the affidavit. As Chernov J noted in Seventh Cameo, only a copy needs to be served under s 459G(3)(b). Counsel also referred to Vickery J’s decision in Medicorp Australia Pty Ltd v Andeco Construction Group Pty Ltd.[26] However, that case concerned email communications and did not relate to service of an application to set aside a statutory demand. The case is distinguishable from the present case.
(b) Failure to send correcting affidavit
[25](1997) 142 FLR 340.
[26][2010] VSC 199.
In the affidavit supporting the application to set aside the demand, the deponent (who is a director of Hanlon) deposed that the demand had been received on 21 December 2009. This was a typographical error. On the basis of instructions from the director, an employee of the solicitors for Hanlon swore an affidavit that the correct date for receipt of the demand was 11 January 2010. That correcting affidavit was not served by facsimile with the application and supporting affidavit on 19 February 2010.[27] It was contended by counsel for Renegade that this meant that the facsimile did not feature all the material required by s 459G(3)(b). It was put that the director’s affidavit did not support the application to set aside. I do not accept those submissions. The majority of the director’s affidavit sets out the basis upon which he believes the demand should be set aside. The date of receipt of the statutory demand does not go to those issues. In my view, it does not matter that the correcting affidavit was not served within the 21 day period.
(c) Service of the affidavit without the exhibits
[27]The date was also corrected by the director in a subsequent affidavit that he made.
The requirement in s 459G(3)(b) is that a copy of the application and affidavit be served. The issue here is whether that requires the exhibits to the affidavit to be served. The authorities concerning whether exhibits to an affidavit must be served under s 459G(3)(b) were considered by White J in Tatlers.com.au Pty Ltd v Davis.[28] His Honour referred to the decision in the Federal Court in Kortz Limited v Data Acquisition Pty Ltd[29] where Greenwood J held that exhibits to affidavits must be served to comply with the requirements of s 459G(3)(b). In his Honour’s opinion, it would be an odd result if annexures to such an affidavit had to be served but not exhibits. In his Honour’s view, the true purpose of s 459G is to enable the defendant to understand, test and respond to the material served in support of the application.
[28](2007) 213 FLR 109.
[29](2006) 155 FCR 556.
After referring to the relevant Court Rules that did not require exhibits to be served at the time the affidavit is served nor to file exhibits with the Court, White J said:
I am unable to agree with the observations of Greenwood J in Kortz Limited v Data Acquisition Pty Ltd that the reference to ‘an affidavit’ in s 459G(3) refers to the affidavit and to all documents annexed or exhibited to the affidavit. With respect, once it is concluded, as Greenwood J did (at [29]) that ‘… as a matter of principle, documents marked as an exhibit to an affidavit do not form part of the affidavit’, it is difficult to support a conclusion that, in s 459G(3), the expression ‘affidavit’ extends to the exhibits to an affidavit.
If the word ‘affidavit’ in s 459G(3)(b) extends to the exhibits to it, then it must be equally true that the word ‘affidavit’ in s 459G(3)(a) includes the body of the affidavit, the annexures to it and the exhibits to it. However it was never the practice for exhibits to be filed (Re Hinchliffe [1895] 1 Ch 117 at 120; Carter v Roberts at 316) and the current rules applicable to this Court prohibit the filing of exhibits to an affidavit.
His Honour respectfully declined to follow the observations of Greenwood J and held that the application in that case was not invalid by reason that the exhibits were not served within the 21 day period.
Counsel for Renegade contended that original exhibits are required to be filed together with affidavits in Commercial Court proceedings pursuant to Practice Note No. 1 of 2010 at paragraph 9.12. However, that paragraph does not apply to corporations proceedings such as this.[30]
[30]Paragraphs 1.9 and 17.2 Practice Note No. 1 of 2010.
As recognised in paragraph 9.12 of the Practice Note, the usual practice in this Court is that exhibits are not filed with the Prothonotary. Further, if copies of exhibits are required to be served with a copy of the affidavit, this is specifically provided for in the particular Supreme Court Rule that is relevant to the application that is being made.[31]
[31]For example, compare r 46.05 RSC (where no reference is made to service of exhibits) and r 22.03(5) RSC (which specifically provides for service of copy exhibits). Exhibits can be inspected on request: r 29.10 RSC; Re Hinchcliffe [1895] 1 Ch 117.
I agree with the reasoning of White J that what is required by s 459G(3)(b) is the service of the affidavit. As the exhibits do not form part of the affidavit, there is no requirement that they be served with the supporting affidavit within the 21 day period. Whilst it may be that a different outcome might result dependent upon whether annexures or exhibits are used, it is a product of the legislative requirement of service of “an affidavit”.
In this case the affidavit was properly served under s 459G(3)(b).
4. Is leave required?
There was a preliminary issue as to whether leave of the Court was required to bring the appeal.
If leave were required, I would have refused it. This is because having determined that the application to set aside was served on 19 January 2010 (as did the Associate Judge) it does not matter whether the date of service of the statutory demand was 29 December 2009 or 30 December 2009 (the latter being the date of service as found by the Associate Judge). The earliest that the twenty first day could be was 19 January 2010. It follows that even if it could be shown that the Associate Judge’s decision in respect of the date of service of the demand was wrong, or at least attended with sufficient doubt to justify the grant of leave, no substantial injustice is done if his decision stands.[32]
[32]See Niemann v Electric Industries Ltd [1978] VR 431 and Worldwide Enterprises Pty Ltd v Silberman (2010) 237 FLR 292 as to the principles for leave to be granted.
Hanlon also submitted that the appeal was premature and that what should have happened is that Renegade should have waited to appeal until the whole of the application had been determined (not just the jurisdictional point). It was submitted that there was no order to appeal from because the orders that were made were only for the filing of further written material and adjournment. This submission was linked to the question of whether leave was required. For other reasons as set out above, if leave were required, I would refuse to grant it. It is therefore not necessary for me to determine whether the appeal was premature.
5. Conclusion
It follows from what I have said above that I will dismiss the appeal.
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