The Rochester Communications Group Pty Ltd v Lader Pty Ltd
[1996] FCA 524
•28 JUNE 1996
CATCHWORDS
CORPORATIONS - statutory demand for payment of debt - application for order setting demand aside - application not served at creditor's registered office - whether in the circumstances the application should nevertheless be regarded as having been properly served.
Corporations Law, ss.220, 459G
THE ROCHESTER COMMUNICATIONS GROUP PTY LIMITED v
LADER PTY LIMITED
No. G3274 of 1996
CORAM: SHEPPARD J
PLACE: SYDNEY
DATE: 28 JUNE 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. G3274 of 1996
)
GENERAL DIVISION )
BETWEEN:THE ROCHESTER COMMUNICATIONS
GROUP PTY LIMITED
(ACN 000 500 612)
Applicant
AND:LADER PTY LIMITED
(ACN 000 806 940)
Respondent
MINUTES OF ORDER
CORAM: SHEPPARD J
PLACE: SYDNEY
DATE: 28 JUNE 1996
THE COURT ORDERS THAT:
The application filed on 8 May 1996 by the applicant be dismissed.
The applicant pay the respondent's costs of that application.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. G3274 of 1996
)
GENERAL DIVISION )
BETWEEN:THE ROCHESTER COMMUNICATIONS
GROUP PTY LIMITED
(ACN 000 500 612)
Applicant
AND:LADER PTY LIMITED
(ACN 000 806 940)
Respondent
CORAM: SHEPPARD J
PLACE: SYDNEY
DATE: 28 JUNE 1996
REASONS FOR JUDGMENT
HIS HONOUR: On 8 May 1996 the applicant ("Rochester") filed an application under s.459G of the Corporations Law seeking an order for the setting aside of a statutory demand dated 18 April 1996 said to have been served on Rochester by the respondent ("Lader") on 19 April 1996. Section 459G enables a company to apply to the Court for an order setting aside a statutory demand. It also provides that an application may only be made within 21 days after the demand is served. An application is made in accordance with the section only if, within those 21 days, an affidavit supporting the application is filed with the Court and a copy of the application and a copy of the supporting affidavit are served on the person who served the demand on the company. The application and the
affidavit in support were filed 19 days after the statutory demand was served. So they were filed within time. But the question to be determined is whether they were also served upon Lader within the period of 21 days from 19 April 1996.
The basis for Lader's submission that they were not lies in the fact that the application and affidavit were not served on Lader at its registered office but were purported to be served at another address. Section 220 of the Law provides that 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. At all material times, the registered office of Lader was Level 9, 210 George Street, Sydney. The address where service was purported to be effected was at Level 12, 185 Macquarie Street, Sydney.
The evidence contains an explanation of how the Macquarie Street address came to be regarded by Rochester as the address of Lader's registered office. There are proceedings pending in this Court (No. NG 199 of 1996), the Supreme Court of New South Wales and the Industrial Court of New South Wales between Rochester and certain other applicants or plaintiffs and Lader along with a number of other respondents or defendants. The applications filed in these matters each stated that the address of Lader was 12th Floor, 185 Macquarie Street, Sydney. The solicitors for the applicants in each case are the same solicitors who appear for Rochester in these proceedings. On 26 April 1996 Lader filed a notice of appearance in the proceedings in the Industrial Court. It showed Lader's address as 12th Floor, 185 Macquarie Street, Sydney, not Level 9, 210 George Street, Sydney.
It is Rochester's case that it relied on this address as being the registered office because it was the address provided by Lader's solicitors in the notice of appearance in the proceeding in the Industrial Court. Lader, on the other hand, says that the reason it showed the address as the Macquarie Street address was because it took its own address from the applications in the other matters, that is to say the matter in the Federal Court, the matter in the Supreme Court and the matter in the Industrial Court. Indeed, the solicitor for Lader said that it was common for secretaries to be given the task of preparing notices of appearance. They habitually took the address of the party appearing from the application or other originating process. This statement was made without evidence but with no demur from counsel for Rochester. All I can say is that, if this practice exists, it should be discontinued. Solicitors who follow such a practice are negligent and may, in appropriate cases, be called to account.
There is no explanation of how the Macquarie Street address was shown in the three applications that were filed by Rochester's solicitors. The only matter to which reference was made was that it was the address of FAI Insurances Limited. But there was no evidence suggesting that Lader was in some way connected with FAI although, of course, it may be.
It is true, as was submitted on Rochester's behalf, that the provisions of s.220 of the Act are facultative, that is to say they are not mandatory in this respect. But it is difficult to think of a way in which process may be brought to the attention of a company except by service upon it at its registered office. There are circumstances which arise for consideration in applications for substituted service where thought is given to serving directors and so on but, in the usual run of cases, the only safe method of service will be the traditional service of the process at the company's registered office.
I was referred to some of the other provisions of s.220 and also to Order 7 of the Rules of this Court in relation to service of documents. It is enough to say that I do not regard any of the other subsections of s.220 as having any bearing on the matter. I do not regard the provisions of Order 7, which deal generally with service of process in the Federal Court, as being relevant because the Rules cannot affect the meaning or operation of the Law.
Eventually, counsel for Rochester rested his submissions on a resort to the doctrine of estoppel. This submission was made baldly and dealt with by his opponent equally baldly. I was given no assistance whatever in relation to the matter. Presumably what is relied upon is estoppel by conduct. In normal circumstances such an estoppel may be relied upon where there has been a representation of fact intended to be acted upon by the other party and the representation has been acted upon to the detriment of the party acting upon it. In this case, it cannot be said that the solicitors for Lader who prepared the notice of appearance in the Industrial Court matter intended to make any representation in respect of any matter in that notice of appearance otherwise than in relation to the proceedings with which it was concerned. In other words it would be quite wrong to construe it as a representation that for all purposes and in all situations a party dealing with it could assume that the address of Lader was the Macquarie Street address. I would reject the submission based on estoppel but emphasise that I have not referred to authorities or texts about it because of the way in which the submission was made. Reference may, however, be made to Phipson on Evidence, 14th ed. (1990), paras 6-12 and 6-13 (at 103-4).
Under earlier forms of companies legislation, the court, in a case such as this, would have had a discretion to overlook irregularities in relation to matters such as service, or to extend times, in cases where this was warranted. That would have been particularly so in a case such as this where there is no evidence on the part of Lader that it has been prejudiced in any way by the fact that service was purportedly effected at the wrong address. In fairness to Lader, however, it may be that it took the view that the Act was such as not to permit any such latitude and therefore that the leading of any such evidence would be pointless. The policy of the present legislation is to emphasise more so than did any of its predecessors the undesirability from the standpoint of the public interest, of permitting insolvent companies to continue to trade. The provisions of Part 5.4 of the Law in which s.459G is to be found comprise a code which is designed to achieve the legislature's purpose. That is its clear intention; cf David Grant & Co. Pty Limited v Westpac Banking Corporation (1995) 131 ALR 353 where it was held that Part 5.4 was not qualified by the provisions of s.1322 of the Law which deals with procedural irregularities.
Accordingly, I have reached the conclusion that the application for the setting aside of the statutory demand served by Lader was not served within the time prescribed by the Act. The application must be dismissed. Rochester must pay Lader's costs of that application.
I certify that this and the five (5) preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Sheppard.
Associate
Dated: 28 June 1996
APPEARANCES
Counsel for the Applicant: Mr S.J. Rothman, SC
Solicitors for the Applicant: Blessington Judd
Counsel for the Respondent: Mr Raphael, Solicitor
Solicitors for the Respondent: Rosenblum & Partners
Date of Hearing: 7 June 1996
Place of Hearing: Sydney
Date of Judgment: 28 June 1996
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