NEW SOUTH WALES SUPREME COURT

CITATION:

Steel v Beks [2010] NSWSC 1405

JURISDICTION:

Equity Division

FILE NUMBER(S):

2010/275775

HEARING DATE(S):

03/11/2010

JUDGMENT DATE:

6 December 2010

PARTIES:

Steel Building Systems Pty Ltd v Beks Constructions (NSW) Pty Ltd

JUDGMENT OF:

Macready AsJ

LOWER COURT JURISDICTION:

Not Applicable

LOWER COURT FILE NUMBER(S):

Not Applicable

LOWER COURT JUDICIAL OFFICER:

Not Applicable

COUNSEL:

Mr MJ Watts for plaintiff

Mr F Assaf for defendant

SOLICITORS:

MJ Woods & Co for plaintiff

DPH Lawyers for defendant

CATCHWORDS:

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act.

Proceedings not commenced in time. Discussion of whether s29 of Acts

Interpretation Act 1901 or s160 of Evidence Act applies.

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:

I dismiss the proceedings with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

Associate Justice Macready

Monday 6 December 2010

2010/275775 STEEL BUILDING SYSTEMS PTY LTD v BEKS CONSTRUCTIONS (NSW) PTY LTD

JUDGMENT

1 His Honour: This is an application under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand served by the defendant on the plaintiff. The statutory demand is dated 26 July 2010 and claims the amount of $174,005.13. The description of the debt in the schedule to the demand refers to judgment debts obtained in the District Court of New South Wales that resulted from the registration of adjudication certificates dated 2 July 2010. The certificates were made under the Building and Construction Industry Security of Payment Act 1999 .

2 There are two matters that arise on the hearing of these proceedings. The first is whether the proceedings were commenced within time and if that question is answered in the affirmative then the court will need to determine whether there is an off-setting claim or a genuine dispute as asserted by the defendant. I will consider the first matter.

Commencement and service of the proceedings and affidavit in support

3 The evidence before me demonstrates that the solicitor for the defendant attended to the service of the creditors statutory demand. The original statutory demand, a copy of each of the two registrations of certificate of judgment that supported the demand, together with a letter, were inserted in an express post envelope addressed to the plaintiff’s registered office at 174B Grange Avenue, Schofields, NSW 2762 and the details of the solicitor’s office address was placed on the back in the space provided. The solicitor placed the express post envelope in a yellow express post box on Railway Parade, outside the Kogarah train station at 5.30pm on 26 July 2010.

4 In addition, a copy of the same documents was placed in an ordinary envelope addressed to the plaintiff at their mailing address at a Post Office Box at Riverstone, New South Wales. The ordinary envelope was deposited into a red post box at the time the express post envelope was deposited in the yellow express post box (which sat next to the red box). The collection time on both boxes was 6pm.

5 If the statutory demand had been served on 27 July 2010, the 21 day time limit to make an application to set it aside expired on 17 August 2010.

6 The originating process in this matter and the affidavit in support were affirmed by Mr Matthew Young on 19 August 2010 and filed with the court on that day.

7 The evidence shows that a copy of the summons and the affidavit in support was served by way of facsimile transmission to DPH Lawyers at a time commencing at 6.16pm on 19 August 2010. The address of the creditor for service of copies of any application and affidavit shown in the statutory demand was “DPH Lawyers, Suite 53, 2-8 Bridge Street, Hurstville, NSW 2220 (Attention Daniel Peter Harb). No facsimile number was shown.

8 However, the plaintiff’s evidence from Mr Young states that the statutory demand was received on Friday 30 July 2010. If the statutory demand were served on this date, the 21 day time limit provided by section 459G(2) Corporations Act would have expired on 20 August 2010.

9 The facsimile number to which the summons and affidavit were sent was in fact the facsimile number of DPH Lawyers and, indeed, the solicitor for the defendant gave evidence that when he attended the office on 20 August 2010 he found the facsimile with the documents which had apparently been sent and received the day before between 6.16pm and 6.26pm after his office had closed.

10 Given that the facsimile was received it is clear that this is service: see Austar Finance v Campbell [2007] NSWSC 1493 at [49] to [50] and Medeco Group Pty Ltd v Cripps [2009] NSWSC 927 at [21]. If in fact the statutory demand had been served on 30 July 2010 then the application to set aside the statutory demand is within time.

11 However, the defendant maintains that the service of the statutory demand was earlier than 30 July 2010. They relied upon a combination of s 109X of the Corporations Act 2001 (Cth) and s 29(1) of the Acts Interpretation Act 1901 (Cth) the latter of which provides as follows:

"Where an Act authorizes 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 unless the contrary intention appears 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 to have been effected at the time at which the letter would be delivered in the ordinary course of post."

12 Section 109X of the Corporations Act provides:

“109X Service of documents

(1) For the purposes of any law, a document may be served on a company by:

(a) leaving it at, or posting it to, the company’s registered office;

…”

13 The defendant read evidence to address the question of when the letter would be delivered in the ordinary course of post. This evidence was directed to the situation in respect of the express post letter that had an article number CN 2909577. The Australia Post documents available on its website deal with express post service. The post code and address to which the letter was sent using that documentation suggests that the letter was guaranteed to arrive the next business day provided the item was correctly addressed and lodged. There does not seem to be any dispute that the document was correctly addressed and lodged. There is evidence that the letter was not returned to the sender.

14 Evidence was given by Mr Zachariah Marrett, the defendant’s solicitor in these terms:

“On 2 November 2010, at about 4.15pm I telephoned the Kogarah Post Office and spoke to Steven. I introduced myself and asked him: “ If I were to post a letter in an Express Post envelope from Kogarah to a business address in Schofields NSW 2762, when would it be delivered in the ordinary course,”

Steven replied “Let me check the postcode and the Express Post network and I will be back with you shortly.”

About a minute or thereabouts later, Steven replied: “Schofield’s postcode is 2762 and it is within our Express Post Network. So it would be delivered the next business day.”

I said: “Can you assure me that it will get there the next business day?”

He said: “Yes, provide you post it in our Post Office or in one of the yellow street boxes. If you are posting it from one of the yellow street boxes, you must post it before 6.00pm at the latest so it can be delivered to Schofields the next business day.”

15 Mr Matthew Young gave additional evidence in response to this evidence in his affidavit of 3 November 2010 in these terms:

3. Today at 12.30 p.m. I attempted to call Steven at Kogarah post office. I rang "call connect" to obtain the telephone number. I was advised that Kogarah post office does not have a direct number and that I needed to call the telephone number 131318.

4. I called the telephone number 131318. I spoke with a woman named Camille who would not give me her surname but who gave me her employee number which was 11003434.

5. I asked to speak to Steven but because I did not have his employee number I could not sufficiently identify him to speak with him. Camille confirmed that Kogarah post office does not have a direct line and that all calls have to go through the 131318 telephone number.

Camille advise[d] me that this number is the number of the Northern call centre which deals with Kogarah post office. Camille told me that the call centre she was speaking from was in Brisbane.

6. I asked Camille whether she could assist me tracking the document number CN2909577. She confirmed that the document was received for processing at the NEPEAN DF facility on 27 July 2010. I asked her "Are you able to confirm the day the document CN2909577 was taken from the NEPEAN facility and delivered to the addressee?" She replied that "You would have to find the person who delivered it to confirm with them when it was delivered."

7. I then asked Camille "Is express post guaranteed next day delivery?" She replied: "Usually it is the next day but on some occasions depending on for example whether it is flooding or for instance we have a mechanical breakdown it may not be delivered that day and it depends on the efficiency of the local post office.”

8. I asked Camille "The[n] how can I determine when document CN2909577 was delivered?" She replied "The sender would have to contact Australia Post in writing quoting the barcode number and request written confirmation when the mail arrived. Knowing y [sic] Nepean delivery date is not enough as the document then had to travel from the Nepean facility to Riverstone and then to Schofields post office and then after that it would get delivered to the recipient address."

16 The plaintiff suggests that section 160 of the Evidence Act 1995 (NSW) applies which is in these terms:

“160 Postal articles

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

(2) This section does not apply if:

(a) the proceeding relates to a contract, and

(b) all the parties to the proceeding are parties to the contract, and

(3) In this section:

working day means a day that is not:

(a) a Saturday or a Sunday, or

(b) a public holiday or a bank holiday in the place to which the postal article was addressed.”

17 On the basis that that was the relevant provision, the service of the demand would have occurred on 30 July 2010 and the application would be in time.

18 To summarise, the plaintiff suggests that because the evidence of actual service of the statutory demand shows it was received on 30 July 2010 and the defendant’s evidence does not prove otherwise, section 160 of the Evidence Act gives rise to a statutory presumption that the documents were delivered in the ordinary course of post and receipt therefore occurred on 30 July 2010. However, the defendant has submitted that there is no evidence to suggest that the express post envelope was not delivered on 27 July 2010. Accordingly, by virtue of section 29(1) of the Acts Interpretation Act service was deemed to have been delivered on 27 July 2010, pursuant to section 109X Corporations Act .

19 There is a substantial dispute on the authorities at first instance on what is the appropriate statute. In Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill [2007] NSWSC 278, after considering a number of authorities While J concluded as follows:

“[38] In my view, the position is as follows. If the evidence establishes the time at which the article is delivered to the postal address, then that is the time at which service is taken to be effected. If the evidence does not establish the time at which delivery was effected, then, unless the contrary is proved, delivery is deemed to have been effected in the ordinary course of post. What that is is a question of fact to be proved by evidence. In the absence of evidence on the topic, and in the absence of any presumption, there will be no proof that the article was delivered at a particular time. If it is established that the article was not delivered in the ordinary course of post, but the evidence does not establish when it was delivered, then again there will be no evidence as to the time of delivery. In either case, s 160 of the Evidence Act (Cth) (applicable to federal courts), or s 160 of the Evidence Act (NSW) (applicable to New South Wales courts), affords a presumption as to when the article is to be taken to have been delivered. The presumption may assist in proving when delivery was made in the ordinary course of post. If the evidence shows that the article was not delivered in the ordinary course of post, the presumption may assist in proof of when the document was delivered

[39] In S Odgers, Uniform Evidence Law , 6th ed (2004), Sydney, Lawbook Co at [1.4.2140] the learned author says of s 160: “This provision creates a presumption (which operates in the absence of evidence sufficient to raise a doubt about the matter) which makes it unnecessary to adduce evidence about the date of receipt of mail, or about ‘the ordinary course of post’.”

[40] I agree with that observation. Section 29(1) of the Acts Interpretation Act (Cth) and s 160 of the Evidence Act (NSW) are capable of an harmonious operation. So much is clear from s 29(2) of the Acts Interpretation Act (Cth) which provides that s 29(1) does not affect the operation of s 160.

[41] In Howship Holdings Pty Ltd v Leslie , Young J said that s 160 of the Evidence Act (NSW) was inconsistent with s 109Y of the Corporations Law because a different standard applied to the evidence needed to rebut the presumptions created by each section. However, that does not create any inconsistency. Although the provisions apply in the same area, namely, determining when an article is taken to have been delivered by post, they have a complementary sphere of operation. If the time of delivery is proved as a matter fact, or if the expected time of delivery in the ordinary course of post is proved as a matter of fact, then there is no scope for the operation of the presumption in s 160. If not, the presumption in s 160 applies, unless there is sufficient evidence to cast doubt upon that presumption. …

[43] I accept that s 160 has no relevant bearing upon the interpretation of s 109X of the Corporations Act, or s 29 of the Acts Interpretation Act. That is to say, it does not affect the meaning to be given to those sections. Rather, it affects the application of those sections, by providing a rebuttable presumption as to when a posted article is taken to have been received at the place to which it was addressed. In other words, it facilitates proof of the matters for which those provisions provide.”

20 His Honour referred to another of the plaintiff’s arguments and said the following:

“[49] The plaintiff also argued that there was a difference between receipt of a postal article to which s 160 refers and delivery of a postal article to which s 29 refers. Clearly, there is a difference between the delivery of a postal article to a place and its receipt by a person. It is this distinction to which the High Court refers in Fancourt v Mercantile Credits Ltd . However, there is no distinction between delivery of an article to a specified address, that is, to a place, and its receipt at that address.”

21 He concluded his discussion in these terms:

“[65] With great respect to those of a different view, I consider that the proposition that s 160 of the Evidence Act (NSW) is displaced by s 109X of the Corporations Act (Cth) and s 29(1) of the Acts Interpretation Act (Cth) is clearly wrong.”

22 The analysis of White J has some appeal and I am inclined to follow it. I note that the analysis has been approved by a number of authorities including Ferguson J in Formosa House Pty Ltd v Ming Chien Chang [2010] VSC 474 and in Renegade Rigging Pty Ltd v Hanlon Nominees Pty Ltd [2010] VSC 385 and by Logan J in Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd [2010] FCA 1223. The differences in judicial opinion tend to deal with service and receipt of documents in fact situations where mail delivery has been diverted from a company’s registered address. This is not an issue in this matter.

23 For completeness, it is worth noting that Justice White’s decision in Scope Data had the effect of confining the earlier authority of Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 to its facts. Ferguson J in Formosa House analysed the differences between Scope Data and Falgat and stated:

“[11] It seems that the court in that case [Falgat] was not referred to earlier authorities dealing with service by post and s 29 and its equivalent provisions. Many of those authorities were referred to and analysed by White J in the Scope Data case. I respectfully agree with his Honour’s analysis of those earlier authorities and agree with his conclusion that delivery to a post office box cannot be equated to delivery to the registered office of the company. Nor is delivery to and retention at the post office the equivalent of service on the registered office.

[12] If there is evidence of when a document is delivered to the registered office of a company (whether by post or otherwise) then the time of service is the time of delivery at that address and the presumption in s 29 has no application. This is because the s 29 presumption only deems delivery in the ordinary course of post “unless the contrary is proved”, or, in other words, unless actual delivery or non-delivery to the address is proved. If there is no evidence of actual delivery or non-delivery, then the presumption will apply and the item will be deemed to be delivered in the ordinary course of post. The ordinary course of post is a matter for evidence. If there is no evidence in this regard, then s 160 of the Evidence Act 2008 (Vic) assists. That section establishes the presumption (in the absence of evidence sufficient to raise doubt about the presumption) that mail sent within Australia is received on the fourth working day after having been posted. Working days exclude weekends and public holidays. Section 160 also assists in circumstances where there is evidence that the item was not delivered in the ordinary course of post, but there is no evidence of when it was delivered.”

(s 160 of the Evidence Act 2008 (Vic) is in the same terms as the equivalent New South Wales and Commonwealth Acts)

24 In Renegade Rigging Ferguson J again referred to Scope Data and stated:

“ [21] I agree with his Honour’s analysis and reasoning. It follows that I must therefore consider initially whether:

(a) there is proof of posting the statutory demand and supporting affidavit and the date of posting;

(b) there is evidence of the ordinary course of post; and

2.3 Was the statutory demand properly addressed, pre-paid and posted and, if so, when?

[22] The parties accepted that proof of the posting of the statutory demand and supporting affidavit requires proof that the envelope:

(a) bore the correct name and address;

(b) contained the relevant document to be served;

(d) was placed in the post: (See Pearlburst Pty Ltd v Somers Resort Group Pty Ltd; Landmark Leisure Group Pty Ltd v Somers Resort Group Pty Ltd [2007] NSWSC 1126 and the authorities cited in that case)

[23] The parties also agreed that the statutory demand was in fact received by Hanlon although (as is noted above) the date of receipt at its registered office has not been established.

[24] It was submitted by Hanlon’s counsel that Renegade had not established that each of the elements listed above necessary for proving that the statutory demand had been posted occurred on 21 December 2009. Counsel submitted that a statement that the envelope was placed with the outgoing mail does not prove that it was posted. In support of that proposition he relied on Northumbrian Icecream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216 (where the only evidence was that the relevant document had been placed with the outgoing mail and where there was no evidence of the document’s receipt) and Pearlburst Pty Ltd v Somers Resort Group Pty Ltd; Landmark Leisure Group Pty Ltd v Somers Resort Group Pty Ltd [2007] NSWSC 1126 (where the only evidence was that the solicitor had caused the relevant document to be sent without any detail as to how it had been “caused to be sent”) (See also Re Green Global Technologies Ltd; Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd [2009] QSC 262 (20 August 2009) which is to similar effect where the evidence was that the solicitor had caused the relevant documents to be forwarded by prepaid post. Daubney J noted that there was no evidence of the processes within the solicitor’s office: at [9]). However, in this case, the evidence goes further than in those cases and is distinguishable from them. Renegade’s evidence includes direct evidence of the statutory demand being addressed to Hanlon at its registered office and being placed in the outgoing mail tray at midday on 21 December 2009. There is also evidence of the usual procedures followed in respect of mail placed in that tray and that those procedures were followed on 21 December 2009. On the balance of probabilities, I am satisfied that the statutory demand was posted on that date.

[25] In those circumstances, the presumption in s 29(1) of the Acts Interpretation Act (Cth)

operates.”

25 In this matter, the evidence provided by Mr Marrett in his affidavit of 16 September 2010 attests to correctly fulfilling the elements outlined by Ferguson J above. This evidence has not been challenged in cross-examination.

26 It is necessary to determine whether the evidence establishes the time at which the article is delivered to the registered address. In his affidavit of 19 August 2010, Mr Young said at paragraph 3:

“I refer to the Statutory Demand which the defendant (hereinafter referred to as Beks) served upon Steel by ordinary mail to a post office box. The document was received in Steel’s office on 30 July 2010.”

27 I initially admitted the first sentence as submission material because of the conclusion expressed in the word “served”. Having raised the matter with the parties and given them an opportunity to deal with it, I propose to admit that sentence as evidence of the facts but not as to the legal conclusion contained therein.

28 This is important because two demands were served. The original was by express post addressed to the registered office and a copy was sent by ordinary post to a post office box that would not normally be proper service.

29 The document to which Mr Young is referring in paragraph 3 is plainly the documents sent by ordinary post to the post office box. In these circumstances the evidence does not address when it was received in the post office box but only when it was received in Steel Building System’s office. I will infer that it was thus received at the registered office on the 30th. It is irrelevant that it could have been at the post office box for some days. See Scope Data at [95].

30 There is no evidence about the plaintiff receiving a document by express post, nor is there proof of non-delivery, nor is there any evidence regarding the plaintiff’s processes in terms of receiving and handling incoming post that might provide evidence of non-receipt of the statutory demand allegedly sent by express post. Therefore one has to consider the relevant presumptions as to when that notice was served. In Bowman v Durham Holding Pty Ltd (1973) 131 CLR 8 the High Court held that “the ordinary course of post” contemplated the general delivery practises of the postal service and was not concerned with the particular circumstances of an addressee even if known to the postal authorities. On pages 14 and 15 Steven J said:

“When cl. 19 (a) refers to "the ordinary course of post" it is not, I think, concerned with the particular idiosyncracies of a particular addressee but rather with the general delivery practices of the postal service. It does not concern itself with particular circumstances of an addressee which may, if known to the postman on his round, deter him from attempting to effect delivery to a particular addressee; for instance the fact that the postman is aware in advance that that addressee's premises will be closed so that he will be unable to effect delivery of a registered letter in accordance with appropriate regulations. As was said by Lord Esher M.R. in Kemp v. Wanklyn 2 , in dealing with the meaning of "in the ordinary course of post":

‘The Post Office is the authority which, under its statutory powers, determines the ordinary course of the post — that is to say, how the letters shall be carried, and at what time they shall, as a general rule, be delivered within any particular district to the persons taken as a body who reside in that district. It appears to me that all the objector has to do under s. 100 is to look at the Post Office regulations, and to see whether a letter posted at the place, from which he proposes to send the notice, would, according to the ordinary course of post, be delivered to any person resident within the district to which he is posting the notice, as to whom there is no exceptional mode of delivering letters, on or before August 20. He is not bound to inquire whether within the district there may be some people who, by some special arrangement with the Post Office officials there, made either with or without the authority of the Post Office, have their letters delivered in an exceptional manner. Such a special arrangement would be, not the ordinary, but an extraordinary, course of post.’

In the present case the evidence is that there was within the city of Sydney a Saturday morning delivery both for ordinary mail and for registered mail posted, as was this notice, before 5.00 p.m. on the preceding day.”

31 It was suggested that the provisions might not apply to an article sent by express post and reference was made to cases that held that sending a document by registered mail would not comply with the deeming provision relating to service by way of prepaid or ordinary post. When one looks at section 109 X (1) it is plain that all that is required is that the document may be served on a company by posting it to the company’s registered office. Section 29 requires “posting the document as a letter”.

32 In Deputy Commissioner of Taxation v Barroleg Pty Ltd (1997) 25 ACSR 167 (at 169 to 171) Justice Young considered evidence of delivery of an express post envelope in the context of section 109Y Corporations Law :

“The first matter was that Ex DX02 is an Express Post envelope identical to that in which the statutory demand was inserted and posted. This envelope bears the words in bold text “Guaranteed Next Day Delivery”. However, when one reads the small print, all this guarantee means is “If we do not deliver as promised, you will receive another Express Post envelope free. That's the guarantee.”

That evidence does not go very far because “ordinary course of post” connotes ordinary course of ordinary post, not some expedited method of delivery.

The cases do show, however, that even though a letter is posted by certified mail or registered post or express post, it is still posted within the meaning of s 109Y. The word “ordinary” merely deals with the time at which it was deemed to be received: see T O Supplies (London) Ltd v Jerry Creighton Ltd [1952] 1 KB 42.

Second, there was evidence that a letter posted in the Jannali area to the company's registered office by another creditor was in fact received the next day because the company faxed its reply the next day. This is some evidence that the ordinary course of post between Sydney suburbs is next day delivery, but it is very difficult in a vitally important point in a case to infer what is in the ordinary course of post from one other letter.

I should note that Mr Rollinson, for the company, did submit that there was no evidence that the envelope was sent by prepaid post. The evidence was that to use an Express Post envelope, one purchases the same from a post office and the post office then puts a rubber stamp impression on the envelope to show it has been paid for. One then addresses it, may remove the adhesive on which is impressed the words “Sender to keep” together with the serial number of the envelope and then posts the envelope into a gold coloured receptacle. An officer of the post office is then supposed to remove another adhesive strip from the envelope so that it cannot be used again.

The words “pre-paid post” in sections such as 109Y(a) are used in contradistinction to a system of post whereby the recipient pays the postage. It seems to me that where someone purchases an Express Post envelope, addresses it, and either places it in the appropriate receptacle or hands it to a post office official, the criteria of posting the document by prepaid mpost has been made out.

Returning to the main point, what is meant by the ordinary course of post in s 109Y?

…

However, returning to the facts of the instant case, the authorities clearly show that it is up to the person who relies on a provision such as s 109Y(b) to show, on the balance of probabilities, that on the facts the ordinary course of post means that the document concerned was deemed to be delivered on or by a certain day. In the instant case, apart from the two skimpy pieces of evidence to which I have already referred, there has been no attempt to establish the question of fact at all. Under the old tests, there would be a scintilla of evidence, but as a question of fact I am not prepared to hold on that evidence, on the balance of probabilities, that the notice was received at a time before the company says it was received, namely 11.30 am on 23 June 1997. “

33 The defendant’s provided evidence of the type of envelope it used to send the statutory demand (Annexure ‘F’, affidavit of Zachariah Marrett, 16 September 2010). The terms of the guarantee printed on the type of express post envelope used by the defendant are as follows:

“Delivery is guaranteed within the Next Business Day Networks (see below for details), provided your envelope is posted on any business day Monday to Friday in accordance with the Conditions shown below. If we do not deliver as promised, you will receive another C5 Express Post envelope free.

…

GUARANTEE CONDITIONS

The envelope must be posted correctly – see below

Both the posting point and the destination must be within the applicable “next Day Network” – see opposite.

The addressee and sender details must be completed correctly.

The envelope must not weigh more than 500g or be thicker than 20mm.

…

HOW TO POST EXPRESS POST ENVELOPES

There are no forms to fill out; simply address and post:

…

- by 6.00pm (earlier in some provincial centres) in the special Express Post GOLD street posting boxes, located in major business areas

…

NEXT BUSINESS DAY EXPRESS POST NETWORKS – NEW SOUTH WALES

…

Sydney and suburbs 1000-1920; 2000-2249; 2555-2574; 2740-2786”

34 The Australia Post tracking receipt shows that the envelope was accepted and processed by the Nepean facility at 4.39 on 27 July 2010. The evidence does not show whether the time was am or pm.

35 Having regard to the evidence about the postal service and taking into account the considerations of White J in Scope Data (at [21]) and Young J in Deputy Commissioner of Taxation v Barroleg , it seems to me that the ordinary course of post in respect of an express letter has been proved to be service on the next business day after posting. The information provided by Australia Post representative Camille that was recorded in the affidavit of Matthew Young provides evidence of the frequency with which the express post timetable was complied. The fact that some extraneous event such as a flooding or a mechanical breakdown may occur would not detract from the meaning of the ordinary course of post for an Australia Post express post letter within the express post network.

36 In my view service of the letter by using express postal service falls within section 29(1) of the Acts Interpretation Act : the relevant documents were served on the plaintiff on 27 July 2010 in the ordinary course of post; and within section 109X Corporations Act : those documents were posted to the plaintiff’s registered office. Therefore on the evidence before me I am satisfied that the statutory demand was served on the 27 July 2010.

37 In Falgat Hodgson JA said (at [63]), “There may be circumstances in which service or provision has been effected within s 109X of the Corporations Act or s 31 of the [Building and Construction Industry Security of Payment Act 1999] Act, but the document has not been received, but I find it difficult to identify any such circumstances.” The facts in this case might potentially be such a circumstance, however, section 459E of the Corporations Act refers only to service of a statutory demand and as stated by White J in Scope at [45] (excerpted at [20] above), there is no distinction between delivery of an article to a specified address and receipt at that address.

38 In these circumstances the application is out of time and I should dismiss the proceedings.

Offsetting claim

39 It seems that the plaintiff’s claim has been put in a number of different ways. There is a claim that there has been overcharging during the course of the various contracts on which the defendant was employed by the plaintiff and there was also an allegation of defects. The first claim would be the question of a genuine dispute and the second an off-setting claim.

40 It was suggested that because of the wide variation in the evidence on the amount of the claim that this has been invented for the purpose of the action.

41 In respect of the overcharging there is a detailed schedule comparing the times charged by Beks for its employees and the actual times recorded in swipe card records at the site at the Wolgan Valley Emirates Resort. The analysis shows an overcharge of $91,647.91. There is also evidence that on 12 December 2009 a letter was written outlining the then existing dispute referring to the same problem and estimating the overcharge to be more than $110,000. This tends to indicate that the dispute was well under way at this early date.

42 The claim for rectification of faults involved evidence from both parties. According to a schedule provided by the plaintiff, the total amount including GST was said to be $174,782.44. The defendant’s evidence suggests that there were never any complaints during the period of the project about the quality of the work in respect of the Canberra Hospital project. The correspondence and the cross examination of Mr Young would tend to indicate that such a proposition was unfounded.

43 The plaintiff submits that the evidence as to the dispute and offsetting claim has not been contradicted in any of the affidavits or evidence relied on by the defendant. The plaintiff points to the ’broad brush approach’ applied by Young J in John Holland v Kilpatrick Green (1994) 14 ACSR 250 in as being applicable in determining in the present case whether there is a genuine dispute and offsetting claim disclosed in the evidence. His Honour stated at 254:

“It may be that I am doing a disservice to this court in approaching the matter in this mathematical way. It may be that it is far more appropriate in the instant sort of case for the court to just take a broad brush approach. Thus the court might just say that because this is not a debt collecting court, where there is a construction case of this nature, the demand should be set aside under s 459 j (1)(b) whenever it can be seen from the correspondence that there are honestly held views on either side which have brought a dispute between the parties. Thus, the matter can be dealt with in the ordinary way in which construction disputes are dealt with without the time and expense that is involved in running this sort of litigation ahead of that dispute. If I were to do that in the instant case, I would come to the same result”

44 The defendant submits that the purported cross claim of the defendant is not genuine within the meaning of section 459H of the Corporations Act and drew attention to the judgment of McPherson JA in JJMMR Pty Ltd v LG International Corp [2003] QCA 519 at [18]:

“ [18] Anyone can make a claim to a right of set-off against a creditor. What the definition in s 459H(5) requires, however, is that it be “genuine”. The same word in s 459H(1) has already elicited so many synonyms and shades of meaning that it will not help to add more. Its antithesis is to be seen in the word “artificial”. The claim to set off against the debt demanded must not have been manufactured or got up simply for the purpose of defeating the demand made against the company. It must have an existence that is objectively demonstrable independently of the exigencies of the demand that evoked it.”

45 The fact there are a number of different formulations of the claims does not in my view indicate that there is no genuine offsetting claim. There was cross examination of Mr Young which did not either clarify or contradict the basic claims put forward in the Young affidavit. I am satisfied that there are genuine disputes and offsetting claims in excess of the amount of the demand and this would be another reason for dismissing the proceedings.

46 I dismiss the proceedings with costs.

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LAST UPDATED:

6 December 2010