The Site Foreman Pty Limited v Brand

[2011] NSWSC 451

Supreme Court

New South Wales

Medium Neutral Citation:	The Site Foreman Pty Limited v Brand [2011] NSWSC 451
Hearing dates:	16 May 2011
Decision date:	19 May 2011
Jurisdiction:	Equity Division - Corporations List
Before:	Barrett J
Decision:	The separate question the subject of the order of 16 May 2011 is answered "yes".
Catchwords:	CORPORATIONS - winding up - statutory demand served by natural person - application for order setting the demand aside served by the company - application placed by process server in letterbox at particular premises - whether good service of application - whether personal service required by UCPR 10.20(2)(a) where defendant is a natural person - whether, through the exception in s 79(1) of the Judiciary Act, Acts Interpretation Act provisions regarding service applied by the Corporations Act itself prevail over the UCPR specification - whether originating process in a s 459G case is "required or permitted" to be served - whether the particular address was the address of the defendant's last known place of residence or business - whether leaving a document in the letterbox at premises amounts to leaving "at" the premises' "address"
Legislation Cited:	Acts Interpretation Act 1901 (Cth), ss 2(1), 25, 28A Acts Interpretation Amendment Act 1984 (Cth), s 15 Bankruptcy Act 1966 (Cth) Constitution, s 77(ii) Corporations Act 2001 (Cth), ss 5C, 459G, 1337B Corporations Regulations 2001 (Cth), Form 509H Judiciary Act 1903 (Cth), s 79(1) Legislative Instruments (Transitional and Consequential Amendments) Act 2003 (Cth), s 4 Uniform Civil Procedure Rules 2005, rules 10.20(2)(a), 10.21, 28.2
Cases Cited:	Austar Finance Group Pty Ltd v Campbell [2007] NSWSC 1493; (2007) 215 FLR 464 Balmain Leagues Club Ltd v Lankry [2009] NSWSC 1218 Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186 D B Mahaffy & Associates Pty Ltd v Mahaffy [2010] NSWSC 881 de Robillard v Carver [2007] FCAFC 73; (2007) 159 FCR 38 Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334 Sogelease Australasia Ltd v Griffin [2003] FCA 453; (2003) 128 FCR 399 Swerus v Central Mortgage Registry of Australia Pty Ltd [1989] ANZ ConvR 169 Telstra Corporation Ltd v Ivory [2008] QSC 123 Von Risefer v Mainfreight International Pty Ltd [2009] VSCA 179; (2009) 25 VR 366 Woodgate v Garard Pty Ltd [2010] NSWSC 508; (2010) 239 FLR 339 Zipvac Australia Pty ltd v Hurwitz [2011] NSWSC 392
Category:	Procedural and other rulings
Parties:	The Site Foreman Pty Limited - Plaintiff Alan Brand - Defendant
Representation:	Counsel: Mr G P Segal - Plaintiff Ms S S Nash - Defendant Solicitors: Eaves Legal - Plaintiff Sally Nash & Co - Defendant
File Number(s):	2011/00071822

Judgment

1. I am dealing with a separate question which became the subject of an order under rule 28.2 of the Uniform Civil Procedure Rules 2005 in these proceedings in which the plaintiff seeks to make application under s 459G of the Corporations Act 2001 (Cth) in relation to a statutory demand served on it by the defendant.

1. The question is:

" Whether the delivery of the originating process and the supporting affidavit to the letterbox of the residential premises at XX Dormer Close Elderslie on 8 March 2011 constituted service of those documents for the purposes of s 459G(3) of the Corporations Act 2001."

1. The defendant served a statutory demand on the plaintiff on 16 February 2011. Paragraph 6 of the statutory demand was in these terms:

"The address of the creditor for service of copies of any application and affidavit is XX Dormer Close Elderslie NSW 2570."

1. The defendant is a natural person.

1. On 4 March 2011, the plaintiff filed an originating process seeking an order that the statutory demand be set aside. A supporting affidavit was filed at the same time.

1. At 5.15pm on 7 March 2011, a process server retained by the plaintiff went to the Dormer Close address, knocked on the door and received no response. At 6.20pm the next day, 8 March 2011, the process server went back to that address and, there being again no response to his knocking at the door, left copies of the originating process and supporting affidavit in the letterbox of the premises.

1. The defendant maintains that rule 10.20(2)(a) of the Uniform Civil Procedure Rules 2005 has the effect that personal service is the only permitted mode of service of the originating process. That rule provides:

"Except as otherwise provided by these rules:

(a) any originating process ... in proceedings in the Supreme Court ... must be personally served, ..."

1. The meaning of "personally served" is supplied by rule 10.21:

"(1) Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document.

(2) If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person.

(3) Service in accordance with subrule (2) is taken to constitute personal service."

1. It is clear that the action of the process server in leaving copies of the originating process and the supporting affidavit in the letterbox at the Dormer Close address on 8 March 2011 did not constitute personal service under the Uniform Civil Procedure Rules . And that, according to the submissions made on behalf of the defendant, is sufficient to cause the separate question to be answered "no".

1. The position taken by the plaintiff, however, is that personal service in terms of the Uniform Civil Procedure Rules is not necessary and that the action of the process server was, in the particular statutory context, sufficient service.

1. In these proceedings, the court exercises Federal jurisdiction conferred by s 1337B of the Corporations Act pursuant to the Commonwealth Parliament's power under s 77(ii) of the Constitution . T he laws of New South Wales, including laws relating to procedure, therefore bind the court to the extent stated in s 79(1) of the Judiciary Act 1903 (Cth): see Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334. Section 79(1) is in these terms:

"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."

1. Rule 10.20(2) of the Uniform Civil Procedure Rules is a law of New South Wales relating to procedure. The plaintiff contends that, despite s 79 of the Judiciary Act , rule 10.20(2)(a) does not apply. It does so by reference to another consequence of the source of the relevant cause of action in the Corporations Act .

1. Section 5C of the Corporations Act provides:

"(1) Until the date of commencement of section 4 of the Legislative Instruments (Transitional and Consequential Amendments) Act 2003 (the Legislative Instruments commencement day ), the Acts Interpretation Act 1901 as in force on 1 November 2000 applies to this Act.

(2) On and after the Legislative Instruments commencement day, the Acts Interpretation Act 1901 as in force on that day applies to this Act.

(3) Amendments of the Acts Interpretation Act 1901made after the Legislative Instruments commencement day do not apply to this Act."

1. Section 4 of the Legislative Instruments (Transitional and Consequential Amendments) Act 2003 (Cth) commenced on 17 December 2003. The Acts Interpretation Act 1901 (Cth) as in force on that day therefore applies to the Corporations Act by force of the Corporations Act's own s 5C.

1. Section 28A of the Acts Interpretation Act 1901 (Cth) was added to that Act by s 15 of the Acts Interpretation Amendment Act 1984 (Cth). Section 28A has not been amended since its adoption. As in force since 17 December 2003, the section provides:

" (1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then, unless the contrary intention appears, the document may be served:

(a) on a natural person:

(i) by delivering it to the person personally; or

(ii) by leaving it at, or by sending it by prepaid post to, the address of the place of residence or business of the person last known to the person serving the document; or

(b) on a body corporate--by leaving it at, or sending it by prepaid post to, the head office, a registered office or a principal office of the body corporate.

(2) Nothing in subsection (1):

(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or

(b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection."

1. The plaintiff's contention is that s 459G of the Corporations Act is a provision of a Commonwealth Act that "requires or permits" a document to be served on a person. The defendant referred, however, to Sogelease Australasia Ltd v Griffin [2003] FCA 453; (2003) 128 FCR 399 in which Emmett J held that a bankruptcy petition is not a document "required or permitted" by the Bankruptcy Act 1966 (Cth) to be served on the respondent named in it. The essence of his Honour's decision (which was approved by the Full Federal Court in de Robillard v Carver [2007] FCAFC 73; (2007) 159 FCR 38) emerges from this passage (at [36]-[37]):

"There is no requirement of the [Bankruptcy] Act that a petition be served, in the sense of imposing an obligation upon a creditor. A creditor is free to determine whether it will present a petition to the Court and is also free, after presentation of a petition, to decide whether or not to serve the petition on the debtor. Of course, a sequestration order cannot be made until those events occur but in no sense is there any requirement that they occur.

To permit an act is to allow the doing or occurrence of the act or to give leave or opportunity for the act. The Act does not permit the service of a petition in any such sense. Insofar as the Act does not prohibit the service of a petition or specify the manner in which a petition must be served, it "permits" a petition to be served in some sense. In that sense, however, the Act also permits any other act that might be committed by any creditor or any other person in any circumstances. I do not consider that the Act, in any relevant sense, permits a petition to be served on a debtor."

1. I do not consider this reasoning to be applicable to an originating process by which a plaintiff initiates an application under s 459G of the Corporations Act . Section 459G reads:

"(1) A company may apply to the Court for an order setting aside a statutory demand served on the company.

(2) An application may only be made within 21 days after the demand is so served.

(3) 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 compan y ."

1. Section 459G(3)(b) thus specifies, as one of the essential characteristics of an application "made in accordance with this section", that a copy of the application and a copy of the supporting affidavit be "served on the person who served the demand on the company". There is no application "made in accordance with this section" in the absence of the service for which s 459G(3)(b) provides. Section 459G(3)(b) is accordingly a provision that "requires", as a condition of the existence of an application for an order setting aside a statutory demand, that a copy of the application and affidavit be "served on a person", namely, "the person who served the demand on the company" - in the present case, the defendant. A company receiving a statutory demand cannot challenge it under s 459G except by a process one component of which is service of the application. Such a company, unlike an applicant of the kind referred to by Emmett J, has no choice in the matter of service.

1. Under s 25 of the Acts Interpretation Act , "document" includes "any paper or other material on which there is writing"; and by s 2(1), the rules of interpretation the Act lays down apply to interpretation of its own provisions. Both s 25 (repealed and substituted in 1987 and not altered since then) and s 2(1) (repealed and substituted in 1937 and not altered since then) apply to the Corporations Act by force of its own s 5C.

1. The effect of the Acts Interpretation Act provisions, as applied by s 5C of the Corporations Act , is that the copies of the originating process and supporting affidavit in these proceedings are "documents" within the meaning of that Act and that, since they are documents that s 459G(3)(b) of the Corporations Act "requires or permits" to be "served on a person" (the present defendant), s 28A allows them to be "served" on the defendant (being a natural person) by any of the s 28A(1)(a) methods, including "by leaving [them] at . . . the address of the place of residence or business of the person last known to the person serving the document".

1. In relation to the originating process, the position is thus that a provision of State law (rule 10.20(2)(a) of the Uniform Civil Procedure Rules ), if binding on the court under s 79 of the Judiciary Act , requires personal service by physical delivery to the defendant (or, in case of refusal to accept, by placing down in his presence) but a provision of Commonwealth law (s 28A as applied by the Corporations Act ) allows service by leaving at the defendant's last known place of residence or business.

1. There is, however, no operative conflict. This is because the particular State law provision is not made binding by s 79 of the Judiciary Act . Section 79 causes relevant State law to be applicable "except as otherwise provided by . . . the laws of the Commonwealth". Because of that exception, the State law's particular and exclusive specification of a particular mode of service cannot be binding in the face of provision of Commonwealth law (the combination of s 5C of the Corporations Act and s 28A of the Acts Interpretation Act ) permitting other modes of service.

1. The conclusion therefore must be that, despite rule 10.20(2)(a) of the Uniform Civil Procedure Rules , an originating process in this court by which a plaintiff initiates an application under s 459G of the Corporations Act may be served in a manner specified in s 28A of the Acts Interpretation Act and need not be served in a way specified in rule 10.20(2)(a).

1. This has been recognised in several cases to which counsel directed me (and others I have since located): see for example, Austar Finance Group Pty Ltd v Campbell [2007] NSWSC 1493; (2007) 215 FLR 464 at [40]; Telstra Corporation Ltd v Ivory [2008] QSC 123 at [61]; Von Risefer v Mainfreight International Pty Ltd [2009] VSCA 179; (2009) 25 VR 366 at [21] (4); Balmain Leagues Club Ltd v Lankry [2009] NSWSC 1218 at [1]; Woodgate v Garard Pty Ltd [2010] NSWSC 508; (2010) 239 FLR 339 at [44]; D B Mahaffy & Associates Pty Ltd v Mahaffy [2010] NSWSC 881 at [47] ff. It is unfortunate, in retrospect, that these cases were not drawn to my attention on 9 May 2011 when I heard Zipvac Australia Pty ltd v Hurwitz [2011] NSWSC 392 and expressed the opinion that personal service in accordance with the Uniform Civil Procedure Rules was required in relation to a s 459G application where the defendant was a natural person (it may be noted, however, that the application of s 28A in that case would not have changed the result, given that a party's solicitor's post office box cannot possibly be the "place of residence or business" of the party).

1. Whether or not a particular address is an address of a person contemplated by s 28A - that is, "the address of the place of residence or business of the person last known to the person serving the document" -- depends on the state of knowledge of the person serving the document. In the present case, there is ample evidence that the Dormer Close address was known to the plaintiff as that of the place of residence or business of the natural person defendant. I say this for three reasons. First, letters of August 2007 and November 2007 from the plaintiff by which the defendant was retained to provide services for the plaintiff are addressed to the defendant at that address. Second, the description of the defendant in both paragraph 1 of the statutory demand and in the affidavit accompanying it refers to the Dormer Close address. Third, paragraph 6 of the statutory demand specifies the Dormer Close address as the address for service of copies of any s 459G application and affidavit, which indicates that it is a residential or business address of the defendant made known as such to the plaintiff. In addition, it may be noted that the form of the separate question acknowledged the premises at the Dormer Close address to be residential premises.

1. It has been held in a number of cases that service of copies of a s 459G application and supporting affidavit may be effected at the address specified in paragraph 6 of a statutory demand. That, it seems, to me is axiomatic, given the terms of paragraph 6 and the direction as to its completion set out in Form 509H as prescribed pursuant to the Corporations Regulations 2001 (Cth):

"The address of the creditor for service of copies of any application and affidavit is (insert the address for service of the documents in the State or Territory in which the demand is served on the company, being, if solicitors are acting for the creditor , the address of the solicitors)."

1. There is, perhaps, room for some doubt as to precisely what (short of personal service) may be sufficient to constitute service on a natural person defendant at a paragraph 6 address if that address is not also, in terms of s 28A, the defendant's place of residence or business last known to the plaintiff. That, however, is not a matter that calls for discussion in this case.

1. Given the applicability of s 28A of the Acts Interpretation Act , the only question remaining in the present context is whether leaving the documents in the letterbox at the Dormer Place premises amounted to "leaving" them "at" that address. For reasons stated in both Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186 and Swerus v Central Mortgage Registry of Australia Pty Ltd [1989] ANZ ConvR 169, I am of the opinion that, when one is dealing with a provision about leaving a document at an "address" (as distinct from an "office", which connotes a building or a room within or other part of a building), depositing in a box provided at the "address" for the receipt of letters constitutes "leaving" the deposited article "at" the "address", particularly where it is a residential address.

1. The separate question the subject of the order of 16 May 2011 is answered "yes".

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Decision last updated: 19 May 2011