Over the years we continue to see troubles which arise from attempting to serve a statutory demand by ‘ordinary post’ to the Registered Office of a debtor company.
Increasingly these postal issues have been causing lawyers and judges alike to put the microscope on issues surrounding when a statutory demand has been duly served. This often leads to debate over whether an application to set aside a statutory demand has been filed and served within the mandatory 21 day time-period. These applications are quite often ‘do or die’ scenarios for both sides, resulting in significant cost and risk in a ‘winner takes all’ environment at a contested Supreme Court Application with counsel.
In Adcon Logistics Pty Ltd v Joannou Enterprises Pty Ltd [2023] QSC 265 , Justice Jackson was asked to consider such an issue.
In this particular case the registered office was the 19th floor of an office building in Brisbane. In this case it was non-contentious that the statutory demand was:-
(a) properly addressed to the registered office of the applicant;
(b) put into a prepaid envelope; and
(c) posted as a letter.
In other words, the creditor had done that which a creditor would ordinarily be expected to do – to deliver the statutory demand by pre-paid post to the registered office listed on an ASIC search of the debtor company, consistent with the requirements of 109X of the Corporations Act.
In issue was the date service was actually effective upon the company, because the recipient of the mail contended that it had been received [our emphasis] directly to its PO box on a date which was three days after the creditor asserted it would have been delivered in ‘the ordinary course’.
At the heart of the issue was Section 29 of the Acts Interpretation Act which relevantly provides:-
“29 Meaning of service by post
(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 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 [our emphasis], to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
An employee of the debtor gave sworn testimony to the effect that:-
- He had recognised that a least significant portion of mail which was addressed to the debtor’s street address had, in fact, been received at the PO of the company;
- It was likely the case that employees of Australia Post, having recognised the company, had unilaterally re-directed such mail to the PO Box of the company;
- The PO box of the company was not, at that time, collected every day, meaning that the actual date that the debtor company came to receive the statutory demand was actually three days later than what would have otherwise been the date the creditor expected the statutory demand to be delivered by ordinary post.
Accordingly the Court accepted that the application to set aside the statutory demand had been filed and served within the relevant 21 day period.
Practitioners who are assisting clients with service of statutory demands upon a multi-level office building should consider whether personal service of the registered office of the company is warranted, rather than risking issues concerning service of the demand.
