Zipvac Australia Pty Ltd v Ivan James Hurwitz

[2011] NSWSC 392

Supreme Court

New South Wales

Medium Neutral Citation:	Zipvac Australia Pty Ltd v Ivan James Hurwitz [2011] NSWSC 392
Hearing dates:	9 May 2011
Decision date:	09 May 2011
Jurisdiction:	Equity Division - Corporations List
Before:	Barrett J
Decision:	Proceedings dismissed
Catchwords:	CORPORATIONS - winding up - statutory demand - plaintiff seeks order setting aside statutory demand - whether s 459G(3) requirement with respect to service of originating process and supporting affidavit satisfied within 21 day period - defendant is a natural person - no personal service - no service at solicitor's office stated in demand - documents sent by post to a post office box - held no service
Legislation Cited:	Corporations Act 2001 (Cth), s 459G Corporations Regulations 2001 (Cth), Form 509H Uniform Civil Procedure Rules 2005, rules 10.20(2)(a), 10.21
Cases Cited:	David Grant Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265
Category:	Principal judgment
Parties:	Zipvac Australia Pty Ltd - Plaintiff Ivan James Hurwitz - Defendant
Representation:	Counsel: Mr R J Thomas Solicitors: R J Thomas
File Number(s):	2011/00121494

Judgment

1. This is the hearing of the plaintiff's application for an order setting aside a statutory demand served on it by the defendant. The defendant is a natural person. There has been no appearance for the defendant today.

1. The matter that arises immediately is that of service and the question whether the plaintiff served the originating process and supporting affidavit on the defendant within the time specified in s 459G(3) of the Corporations Act 2001 (Cth).

1. The statutory demand is dated 25 March 2011 and the plaintiff has accepted that it was served on or soon after that day.

1. The originating process was filed, together with a supporting affidavit, on 13 April 2011, which is within the 21-day period fixed by s 459G(3). The section makes it clear, however, that service of the originating process and the supporting affidavit must also be effected within the same period of 21 days.

1. The High Court held in David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 that the court has no power to extend the period of 21 days or otherwise to grant relief to a plaintiff who does not meet the 21 day specification.

1. In the present case, the plaintiff made attempts to serve the natural person defendant by means of personal service and instructed a process server to that end. The report from the process server shows that the process server went to the address of the defendant stated in the statutory demand but did not find him there. The process server left copies of the documents at that address.

1. Under rule 10.20(2)(a) of the Uniform Civil Procedure Rules 2005, an originating process in proceedings in the Supreme Court must be personally served, unless a provision of the rules otherwise provides. No suggestion is made that any other provision of the rules makes contrary provision applicable to this case. The method of personal service is described in rule 10.21. The plaintiff did not effect personal service when the process server left the documents at the defendant's address.

1. In accordance with the requirement arising from the direction in paragraph 6 of Form 509H, the statutory demand specified an address of the creditor for service of any application and affidavit, being suite 305, Level 3, 66 Berry Street, North Sydney, the address of the creditor's solicitor (the demand was signed by the solicitor). Since Form 509H is prescribed under the Corporations Regulations 2001 (Cth), service of the originating process and supporting affidavit at the address specified in paragraph 6 of a statutory demand in accordance with the direction in that paragraph must be regarded as good service.

1. The evidence that has been adduced by the plaintiff shows that it posted copies of the originating process and supporting affidavit in an envelope addressed to the particular solicitor at a post office box in North Sydney. That is not, in any sense, service at the address in Berry Street, North Sydney stated in the statutory demand.

1. In neither of the ways suggested, therefore, did the plaintiff effect service of the originating process and supporting affidavit within the 21 day period, or at all.

1. It has been said from the bar table that the solicitor acting for the plaintiff spoke to the solicitor named in the statutory demand who acknowledged that she had the documents but said she had no instructions to accept service of them. There is no evidence about this or, in particular, about when the conversation took place. In those circumstances, I see no basis for the application of any informal service rule.

1. Because the s 459G(3) requirement with respect to service is not shown to have been satisfied, the proceedings are dismissed.

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Decision last updated: 10 May 2011