Statutory Demands – Small Mistakes Cause Big Problems

Recent GPA Law Success

We recently acted for a client in the Victorian Supreme Court where we successfully defended a winding up application filed by a major mid-tier law firm; Mills Oakley v Asset HQ Australia Pty Ltd [2019] VSC 98.

The link to the case can be found here:http://classic.austlii.edu.au/au/cases/vic/VSC/2019/98.html

Our client’s defence was primarily on the basis that Mills Oakley could not prove service of the statutory demand at our client’s registered office.

It was common ground that Mills Oakley not only addressed the Statutory Demand to the wrong address, but that the envelope enclosing the statutory demand also had the same defect. The error was that instead of typing “DBW (NSW) Pty Limited, Level 6, 1 Pacific Highway, North Sydney NSW 2000”, they had typed “DBW (NSW) Pty Limited, Level 6, 1 Pacific Way, North Sydney NSW 2000” [emphasis added].

Mills Oakley’s case was that it allegedly posted the Statutory Demand to our client’s registered office and that an inference should be drawn that it was delivered as: there was no material or practical difference between “Way” and “Highway”; the envelope containing the Statutory Demand was not returned to sender; and that Australia Post had said to the effect: “anyone familiar with the area would know it meant Pacific Highway”.

Our client’s case was primarily that Mills Oakley could not rely on the presumptions of deemed service and there was no record whatsoever of any delivery of any envelope addressed from Mills Oakley at the registered office within the relevant timeframe.

Judicial Registrar Matthews found in favour of our client and held at [54]-[57]:

I accept the defendant’s submissions in this case. In my view, the plaintiff is not entitled to rely on the deemed service provisions in Section 29, as the Statutory Demand was not delivered to the Registered Office in conformity with Section 109X and Section 28A. These presumptions are the only method of service relied upon by the plaintiff, and it is not able to do so because the Envelope was not properly addressed. This requirement has been clearly established in a number of cases, as summarised in the Assaf Text and as referred to in ABW and Chen.

As set out in ABW and Chen, strict compliance with the document being addressed to the registered office as recorded in the ASIC register is required, and here there was not such compliance. The plaintiff’s repeated submission that there was no ‘material difference’ or ‘practical difference’ between “Way” and “Highway” in this case was not to the point: “Way” was not the Registered Office and that is the end of it”.

[As to the plaintiff’s case – see above]….”[I am.. not satisfied [that it justifies] me in the circumstances of this case drawing the inference which the plaintiff would have me draw that a letter addressed to the Pacific Way Address would have been, and was, delivered to the Registered Office.

Further, [the] evidence is, in the circumstances of this case, sufficient to satisfy me that the Statutory Demand was not delivered to the Registered Office. He has made relevant enquiries of his staff and his systems, and he had adequately explained what would have happened within his office had delivery occurred….”.

Reminder

Judicial Registrar Matthews, at [27] cited Farid Assaf’s text ‘Statutory Demands and Winding Up in Insolvency’ as summarising the applicable law in respect to service of a Statutory Demand by way of post to a registered office:

Service of a Statutory Demand can be effected by posting a Statutory Demand to the company’s registered office. In order to establish that a Statutory Demand has been served on a company by ‘posting it to the company’s registered office’ under s 109X the following elements must be proved[1]:

- That the envelope was properly addressed;

- That the envelope contained the relevant document to be served;

- That the envelope was prepaid;

- That the document was placed in the post and posted as a letter; and

- That the envelope was sent to the registered office of the company.

Service by post will not be established unless each of those facts has been proved; Grant Thornton Pty Ltd v Green Global Technologies Ltd [2009] QSC 262 per Daubney J.

 Contact Us

If you wish to issue a Statutory Demand or you have received one, GPA law can assist you with any question you may have. Contact us on (02) 9262 4471 for a free no obligation consultation.


[1] Pearlburst Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126 at [22]-[23] per Barrett J citing Debelle J in Dwyer v Canon Australia Pty Ltd [2007] SASC 100 and Brereton J in Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216. See also Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869 per Barrett J.

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Date posted: 2019-06-11