Federal Court of Australia

Electrical Data and Fibre Optic Systems Pty Ltd v Utech Pty Ltd, in the matter of Utech Pty Ltd [2024] FCA 874

ORDERS

THE COURT DECLARES THAT:

1.    The plaintiff has failed to prove that the statutory demand referred to in Part C of its Originating Process dated 12 February 2024 was served on the defendant.

THE COURT ORDERS THAT:

1.    The Originating Process dated 12 February 2024 be dismissed.

2.    The plaintiff pay the defendant’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    Electrical Data and Fibre Optic Systems Pty Limited has applied for an order winding up Utech Pty Limited on the basis of its failure to satisfy a statutory demand dated 10 November 2023. Utech has filed a Notice of Opposition to that winding up application. One of the grounds of opposition is that it was not served with the statutory demand. A Registrar ordered that the issue concerning service of the statutory demand be determined as a separate question.

2    Electrical Data contended that it served Utech in accordance with s 109X(1)(a) of the Corporations Act 2001 (Cth), which provides, in summary, that a document may be served on a company by posting it to the company’s registered office. It relied on the evidence of its solicitor, Mr Kyle Kutasi, that it posted the statutory demand to Utech’s registered office.

3    Utech contended that Electrical Data had not established that the statutory demand had been served in accordance with s 109X(1)(a) of the Corporations Act. It challenged Mr Kutasi’s evidence and submitted that it was implausible, unreliable and untruthful. It also relied on unchallenged evidence which tended to indicate that the statutory demand was not received at its registered office. It submitted that that evidence was sufficient to create a reasonable doubt which was sufficient to rebut the presumption in s 160 of the Evidence Act 1995 (Cth) concerning the date of the receipt of articles sent by post.

4    For the reasons that follow, I have found that, while the evidence establishes that the statutory demand was posted to Utech’s registered office in accordance with s 109X(1)(a) of the Corporations Act, Utech adduced sufficient evidence to prove that the statutory demand was not delivered to that address. It follows that the statutory demand was not served on Utech and Electrical Data’s application to wind up Utech based on its failure to comply with the statutory demand must be dismissed.

RELEVANT STATUTORY PROVISIONS AND APPLICABLE PRINCIPLES

5    As has already been noted, s 109X(1)(a) of the Corporations Act relevantly provides that “for the purposes of any law, a document may be served on a company by … posting it to, the company’s registered office”.

6    Section 109X(1)(a) of the Corporations Act must be considered together with s 29 of the Acts Interpretation Act 1901 (Cth), which provides as follows:

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, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

(2) This section does not affect the operation of section 160 of the Evidence Act 1995.

7    As can be seen, the effect of s 29(1) of the Interpretation Act is that, where a document is posted in accordance with the section, service by post is deemed to have been effected “at the time the letter would be delivered in the ordinary course of the post”. Postage in accordance with s 29(1) requires the following steps to have been taken: first, that the letter enclosing the document be “properly addressed”, which in the case of service on a company in accordance with s 109X(1)(a) of the Corporations Act, means properly addressed to the company’s registered office; second, that postage in respect of the letter was properly prepaid, meaning in effect that it bore a stamp or other printing indicating that the correct postage had been paid; third, that the letter was placed in the post, meaning, in effect, that the letter was placed in an Australia Post post-box or other approved depository: see Pearlburst Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126, [22]-[23].

8    Importantly, however, the deeming effect of the provision in s 29(1) of the Interpretation Act is subject to proof to the contrary. Unassisted by authority, I would tend towards the view that, so long as it is proved that the steps referred to in s 29(1) of the Interpretation Act have been taken, service of the document is deemed to be effected and that it is only the deemed timing of the service that is subject to proof to the contrary. In other words, if it is proved that the document was delivered to the address at a time different to the deemed time (the time at which the letter would be delivered in the ordinary course of post), service is deemed to be effected at that time. It might then, depending on the circumstances, be necessary for the party relying on s 29(1) to adduce evidence in respect of the ordinary course of the post. I would tend to construe the provision in that way because the words “unless the contrary is proved” appear after the words “shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter” and before the words “to have been effected at the time …”.

9    As will be seen, however, the main authorities in respect of s 109X(1)(a) of the Corporations Act and s 29(1) of the Corporations Act indicate that proof of non-delivery at the address will also defeat the deeming of effective service generally.

10    As can also be seen, s 29(2) of the Interpretation Act provides that the section does not alter operation of s 160 of the Evidence Act 1995 (Cth). Section 160 of the Evidence Act creates a presumption as to the time at which a postal article sent by prepaid post is received. It provides as follows:

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

(c) subsection (1) is inconsistent with a term of the contract.

(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.

11    Section 160 of the Evidence Act does not directly concern the service of documents. Rather, it simply creates a presumption as to the date on which a postal article was received, as opposed to when it was delivered. That presumption is also subject to evidence which is sufficient to raise a doubt about that presumption; that is, the presumption as to the date of receipt.

12    The interplay between s 29 of the Interpretation Act and s 160 of the Evidence Act has been the subject of considerable attention in the authorities. Those authorities primarily concern the circumstances where the date of service was in issue in the proceeding, such as where there was an issue as to whether an application to set aside a statutory demand had been filed within the stipulated time having regard to the date of service of the statutory demand. The accepted position where there is an issue concerning the date or time of service of a statutory demand appears to be the position summarised by White J in Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill [2007] NSWSC 278; (2007) 70 NSWLR 176 at [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 Commonwealth Evidence Act (applicable to federal courts), or s 160 of the New South Wales Evidence Act (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.

13    In this case, however, the issue is not so much the date on which the statutory demand was served on Utech, but whether the demand was served at all. While the authorities do not appear to me to always speak with one voice, the position that I have been able to distil from the main authorities may be summarised as follows.

14    First, evidence of non-receipt of an article by its intended recipient, or a denial of receipt by that person, may not be sufficient to prove non-delivery and therefore may not be sufficient to prove non-service for the purposes of s 29 of the Interpretation Act: Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 96-97; Dwyer v Canon Australia Pty Ltd [2007] SASC 100 at [8]-[9]; Deputy Commissioner of Taxation v Josway Hospitality Pty Ltd [2018] FCA 466 at [2(a)]; Deputy Commissioner of Taxation v Contract Synergies Administration Pty Ltd [2011] FCA 743 at [5]-[18]; Chen v Kornucopia Pty Ltd [2019] VSC 756; (2019) 59 VR 305 at [46]-[48]. That is the case even if the evidence might raise a doubt about the date of receipt for the purposes of s 160 of the Evidence Act: Chen v Kornucopia at [48].

15    Second, proof of non-delivery (as opposed to non-receipt) is sufficient proof of non-service for the purposes of s 29 of the Interpretation Act and, it would follow, s 109X(1)(a) of the Corporations Act: Fancourt at 96-97; Chen v Kornucopia at [45]. As the High Court said in Fancourt at 96, in respect of service in the context of a statutory provision in relevantly the same terms as s 29 of the Interpretation Act: “proof of non-delivery means that service cannot be deemed to have taken place under the second limb of the section at the time of delivery in the ordinary course of the post and cannot be established as having taken place at any other time” (my emphasis). The Court added (at 97):

It may be thought that there is an anomaly in such a result because it means that, notwithstanding the adoption of the permitted means of service, the service is nevertheless ineffective if there is proof of non-delivery.

16    Third, there is no distinction between delivery of an article to a specified address - that is, to a place - and its receipt at that address: Scope Data at [49]. It follows that proof of non-receipt at a place by its occupant, as distinct from non-receipt by a person who is not an occupant, may prove non-delivery at that place for the purposes of s 29 of the Interpretation Act: Josway Hospitality at [2(c)]; Chen v Kornucopia at [47]. Non-receipt of the article at the address of a company’s registered office may not, however, be a solid foundation upon which to infer non-delivery where, for example, the post box at that address was outside the confines of the office or the relevant building: Partners of Piper Alderman v Sharjade Pty Ltd [2011] NSWSC 6 at [19]; Re AXF Group [2019] VSC 671 at [79]-[84]. That is to be contrasted with the situation where the company had in place at the registered office a system for the safe and secure reception of documents delivered by post: cf. Sharjade at [18].

17    Fourth, the company that is disputing service bears the onus of establishing “proof to the contrary” pursuant to s 29 of the Interpretation Act by, relevantly, proving non-delivery at the company’s registered office: Re AXF Group at [42]; Panimo Nominees Pty Ltd v Vasiliki Lobsters Melbourne Pty Ltd [2011] VSC 321 at [19]. The company does not, however, need to adduce evidence that would exclude an inference of delivery; rather, the company must establish that non-delivery is the more probable inference that may be drawn from the evidence than any other competing inference: Chen v Kornucopia at [49].

18    Fifth, it is a question of fact in each case whether or not delivery has occurred: Deputy Commissioner of Taxation v Melking Holdings Pty Ltd [2019] FCA 988 at [56]. Evidence that the letter enclosing the statutory demand was returned marked “undelivered”, “returned to sender”, or “not known at this address” may be sufficient to prove that the demand was not delivered: Re Rustic Homes Pty Ltd (1988) 49 SASR 41; CGU Workers Compensation (Victoria) Ltd (1999) 151 FLR 270 at [74]-[77] and [84]; Commonwealth Banking Corporation Pty Ltd v Pacific Mobile Phones Pty Ltd (2008) 219 FLR 422 at [1], [11], [23]; Re AXF Group at [72], [76], [84]; Melking at [54]. Likewise, evidence that the letter enclosing the demand was not returned so marked might be a significant indication as to whether or not delivery had occurred, particularly if there is no other evidence bearing on that issue: Re AXF Group at [84]; A/Sathrineholm v Norequipment Trading Ltd [1972] 2 QB 314 at 320-322; Fancourt at 95; Chen v Kornucopia at [45]. That is not to say that evidence that the letter was not so returned is necessarily decisive. Consideration must be given to the evidence as a whole.

THE ISSUES

19    Regrettably, the parties did not refer the Court to many of the relevant authorities, or address their submissions to the principles that I have been able to distil from them. Putting to one side Utech’s challenge to Mr Kutasi’s evidence, Utech’s submissions focussed on s 160 of the Evidence Act and whether the evidence raised a sufficient doubt that the statutory demand was received at its registered address. If, however, Mr Kutasi’s evidence is accepted, the relevant question is whether the Utech had discharged its burden of establishing proof to the contrary pursuant to s 29 of the Interpretation Act by, relevantly, proving non-delivery at the company’s registered office.

20    Before addressing that issue, it is necessary to consider and determine Utech’s challenge to Mr Kutasi’s evidence concerning the posting of the statutory demand to Utech’s registered office.

was the statutory demand posted to utech’s registered office?

21    For Electrical Data to prove that the statutory demand was served by post in accordance with s 109X(1)(a) of the Corporations Act and s 29(1) of the Interpretation Act, it was necessary for it to prove, by admissible evidence, that:

(a)    the envelope containing the statutory demand was properly addressed to Utech’s registered office;

(b)    the envelope containing the demand bore a stamp or imprint indicating that the correct postage had been prepaid; and

(c)    the envelope was placed in an Australia Post post-box or receptacle.

22    Unfortunately for Electrical Data, its evidence concerning the service, or purported service, on Utech of the statutory demand was not without its difficulties and curiosities. The sequence of events revealed by the evidence was as follows.

23    Mr Kutasi was the principal of the law firm retained by Electrical Data. On 10 November 2023, he directed his associate, Mr Cameron Shamsabad, to serve Utech at an address in Revesby. That address was the street address of Utech’s principal place of business prior to October 2015. It was not Utech’s principal place of business in 2023. More importantly, it was not Utech’s registered office in 2023.

24    On 10 November 2023, Mr Shamsabad posted the statutory demand to the Revesby address in accordance with Mr Kutasi’s request.

25    According to Mr Kutasi, on the following day he “thought it prudent” to confirm Utech’s registered address. He ascertained that the address was not the Revesby address to which he had directed Mr Shamsabad to post the statutory demand. Rather, it was “c/- Mandria Accounting, 3 Howard Road Padstow New South Wales”. Mr Kutasi’s evidence was that he posted a copy of the statutory demand to that address on 11 November 2023.

26    Somewhat curiously, however, Mr Kutasi’s evidence was that he did not tell Mr Shamsabad that the address that he had told Mr Shamsabad to post the statutory demand was not Utech’s registered office. Nor did Mr Kutasi tell Mr Shamsabad that on 11 November 2023 he had reposted the statutory demand to Utech’s registered address. As a result, when Mr Shamsabad subsequently drafted the Originating Process for the winding up of Utech, that document did not refer to the fact that the statutory demand had been served by Mr Kutasi posting it to Utech’s registered office on 11 November 2023. Rather, it stated that Mr Kutasi (not Mr Shamsabad) had posted the statutory demand to Utech’s former Revesby address. Mr Kutasi’s evidence in cross-examination was that he did not review the Originating Process before it was filed. It would seem, therefore, that he did not detect that anomaly or defect at the time.

27    Mr Shamsabad also affirmed an affidavit on 12 February 2024 in which he stated that he had posted the statutory demand to the Revesby address. That affidavit was filed along with the Originating Process.

28    On 26 February 2024, Utech’s solicitors wrote to Electrical Data’s solicitors. That letter, among other things, advised that Mr Shamsabad’s affidavit, which had been filed in support of the Originating Process, indicated that the statutory demand had not been posted to Utech’s registered office, but to its old business address in Revesby.

29    On 6 March 2024, no doubt prompted by the correspondence received on 26 February 2024, Mr Kutasi affirmed (and subsequently filed) an affidavit. In that affidavit, he stated that on 10 November 2023 he had directed Mr Shamsabad to post the statutory demand to the Revesby address. According to Mr Kutasi, however, on the following day, upon reviewing the file, he “thought it prudent to confirm the address of [Utech’s] registered office”. Having apparently done so, he stated that he “served [Utech] with the statutory demand to [Utech’s registered office address] by ordinary prepaid post”. Mr Kutasi’s bare assertion that he served Utech by post at its registered office was of at best doubtful admissibility and did not in any event address all the requirements of s 29(1) of the Interpretation Act. It should also be noted that, in this affidavit, Mr Kutasi also deposed to the fact that he did not receive any “returned mail” sent to either the Revesby address or Utech’s registered office.

30    On 3 April 2024, Mr Kutasi affirmed another affidavit in which he deposed to the service, or at least purported service, on Utech of the Originating Process and Mr Shamsabad’s affidavit. Those documents were said to have been served by way of an email to Utech’s solicitors. Curiously, despite having affirmed the affidavit dated 6 March 2024 in respect of the postage of the statutory demand to Utech’s registered office, Mr Kutasi’s affidavit dated 3 April 2024 appeared to indicate that Electrical Data continued to rely on Mr Shamsabad’s evidence concerning the service of the statutory demand at Utech’s previous Revesby business address. Mr Kutasi’s 3 April 2024 affidavit did not refer to his 6 March 2024 affidavit or indicate that that affidavit had been served on Utech or its solicitors. Nor did he otherwise indicate that he had posted the statutory demand to Utech’s registered office.

31    On 5 April 2024, Mr Kutasi affirmed yet another affidavit in which he deposed to the fact that he had realised that the email address that he had used for the purported service of the Originating Process and supporting affidavit was the old email address of Utech’s solicitor. He had therefore sent those documents by email to an email address that was said to be the new email address for Utech’s solicitor. This third affidavit sworn by Mr Kutasi again made no mention of the fact that Mr Kutasi had posted the statutory demand to Utech’s registered office.

32    On 8 April 2024, Utech’s solicitors indicated to the Court that Utech disputed that it had been served with the statutory demand. On 10 April 2024, a Registrar ordered that the question whether the statutory demand had been served on Utech was to be determined separately from, and in advance of, other issues in the proceeding. The Registrar ordered Utech to file and serve written submissions in respect of the separate question by 17 April 2024. The written submissions that were in due course filed by Utech contended that the evidence in Mr Kutasi’s affidavit dated 6 March 2024, which included his evidence that he posted the statutory demand to Utech’s registered office, was deficient in several respects. That contention was plainly correct. It appears to have prompted Mr Kutasi to swear yet another affidavit with a view to addressing those deficiencies.

33    Mr Kutasi’s further affidavit, which is dated 24 April 2024, includes the following “clarification” of the evidence in his affidavit dated 6 March 2024 that he “served [Utech] with the statutory demand to [the address of Utech’s registered office] by ordinary prepaid post”:

(a)    First, while at my office on Saturday, 11 November 2023, I took out a standard white letter envelope from my stationary supply shelf.

(b)    Second, I addressed in black pen applied to the face of the envelope, the demand to the Defendant by its corporate identity, "Utech Pty Ltd".

(c)    Third, I wrote underneath the name of the company, on the envelope, the registered address, as set out at paragraph [4] of my previous affidavit. For clarity, the registered address I addressed the demand to was "C/- MANDRIA ACCOUNTING, 3 Howard Road, Padstow NSW 2211".

(d)    Fourth, I affixed a $1.50 pre-paid postage stamp to the top right-hand corner of the front of the envelope, on the same side that I had addressed the Defendant. I observed that the stamp was adhesively always bound to the top right corner thereafter.

(e)    Fifth, I placed a printed copy of the statutory demand annexed to my last affidavit of service, within the envelope and sealed it in the ordinary fashion with the adhesive tab on the lip of the envelope.

(f)    Sixth, I stamped the back side of the envelope I had just sealed, with a 'Solve Legal' postage ink stamp, stipulating our PO Box as the return address. I note that since that time, consistent with paragraph [6) of my last affidavit, I have regularly checked the PO Box, and I did not receive the demand again as a 'return to sender' correspondence.

(g)    Seventh, I took the letter to the red Australia Post box on Willoughby Road, near my office, situated in front of the 'Nest Cafe' at 117 Willoughby Rd, Crows Nest NSW 2065. I physically placed the letter containing the statutory demand into the red postage box, after which time it was in the custody of Australia Post.

34    Utech did not object to Mr Kutasi’s evidence concerning the steps that he took in respect of the postage of the statutory demand to Utech’s registered office. Nor did it submit that the evidence, if accepted, would not be sufficient to prove that the statutory demand had been posted to its registered office in accordance with s 109X(1)(a) of the Corporations Act and s 29(1) of the Interpretation Act. Rather, Mr Kutasi was cross-examined and Utech submitted that the Court should not accept his evidence for essentially three reasons: first, because it was entirely uncorroborated; second, Mr Kutasi’s evidence should be approached with caution because he gave unresponsive answers to questions when cross-examined; and third, because his evidence that he posted the statutory demand to Utech’s registered office, but did not tell Mr Shamsabad that he had done so, was implausible and strained credulity.

35    It may readily be accepted that there are some problems and difficulties with Mr Kutasi’s evidence. As has already been noted, it is, to say the very least, strange that, on his version of events, having discovered that Mr Shamsabad’s purported service of the statutory demand was ineffective, and having corrected that by posting the statutory demand to Utech’s registered address, Mr Kutasi did not tell Mr Shamsabad, who appeared to be the solicitor who had the conduct of the matter on behalf of Electrical Data. As a result, when Mr Shamsabad came to prepare and file the Originating Application and his affidavit in support, he referred to the ineffective service of the statutory demand at Utech’s old Revesby address, not the service purportedly effected by Mr Kutasi. It was not until 26 February 2024, when Utech’s solicitors pointed out that service by post to the Revesby address was ineffective, that Mr Kutasi swore his affidavit deposing to the fact that he posted the statutory demand to Utech’s registered office.

36    That issue in respect of Mr Kutasi’s evidence was made worse by the fact that Mr Kutasi’s evidence was unsupported by any contemporaneous documentary evidence and was otherwise uncorroborated. Mr Kutasi did not make any diary or calendar entry concerning his postage of the statutory demand to Utech on 11 November 2023, which was a Saturday. He also did not photocopy the envelope that he addressed and used to post the statutory demand to Utech’s business address. It would also appear that he did not advise his client about the issue in respect of service or what he had done to rectify it on 11 November 2023. Perhaps more significantly, as has already been noted, Mr Kutasi did not tell Mr Shamsabad about what had occurred until much later. When Mr Kutasi was cross-examined about the absence of any corroborative evidence, he initially referred to the fact that his children were with him at his office on 11 November 2023, though he ultimately conceded that they were in no position to corroborate his evidence concerning the postage of the statutory demand.

37    While Mr Kutasi’s evidence concerning the presence of his children at his office on the day he posted the demand could perhaps be described as somewhat flippant and of little assistance, it could not fairly be said to be unresponsive. That was the only real example of an unresponsive answer that was identified by Utech. Even if that evidence could be described as unresponsive, I doubt that it could cast a pall of unreliability over Mr Kutasi’s evidence in its entirety. On the whole, Mr Kutasi presented as a frank and forthright witness.

38    It was ultimately put to Mr Kutasi in cross-examination that his evidence concerning his postage of the statutory demand was false and that the events that he described did not occur. Not to put too fine a point on it, Utech’s contention was effectively that Mr Kutasi had given deliberately false evidence. While I accept that there is an element of implausibility about the events as described by Mr Kutasi, in particular in respect of his failure to record or even tell Mr Shamsabad about the fact that he had, on his account, corrected what was plainly a problem with the service purportedly effected by Mr Shamsabad, I am not, in all the circumstances, persuaded that Mr Kutasi’s evidence concerning those events was false and should not be accepted. The implausibility of the sequence of events is perhaps more likely explained by a degree of carelessness or a lack of assiduousness on the part of Mr Kutasi, who was the principal of a busy legal practice.

39    It follows that the evidence of Mr Kutasi should be accepted. That evidence is sufficient to prove that the statutory demand was posted to Utech’s registered office in accordance with s 29(1) of the Interpretation Act. Accordingly, but for the evidence adduced by and on behalf of Utech, the deeming effect of s 29(1) of the Interpretation Act would be engaged such as to support a finding that service of the statutory demand had been effected by post in accordance with s 109X(1)(a) of the Corporations Act. Moreover, in the absence of evidence to the contrary, service of the statutory demand would be deemed to have taken place “in the ordinary course of the post”. Electrical Data did not adduce any evidence concerning the ordinary course of the post. In those circumstances, had timing been an issue, it may have been necessary for it to resort to the presumption in s 160 of the Evidence Act. For the reasons that follow, however, it is ultimately unnecessary to endeavour to resolve the issue as to timing.

IS THERE EVIDENCE THAT THE STATUTORY DEMAND WAS NOT DELIVERED TO THE REGISTERED OFFICE?

40    In light of the acceptance of Mr Kutasi’s evidence, the critical issue is whether Utech discharged its burden of establishing that there is “evidence to the contrary” for the purposes of s 29(1) of the Interpretation Act. Has Utech adduced evidence that is sufficient to establish that non-delivery of the statutory demand at the registered office is the more probable inference?

41    The main evidence relied on by Utech to support their case that the demand was not delivered to its registered office was the affidavit evidence of Mr Sam Lamprinos and Ms Marlyne Lamprinos. Neither Mr Lamprinos nor Ms Lamprinos was cross-examined and their evidence was not disputed or challenged in any other respect. Their evidence established the following facts.

42    Mr Lamprinos was a director of, and principal accountant at, Mandria Accounting Pty Limited. Ms Lamprinos was Mr Lamprinos’s wife and was an accountant at Mandria. Mr Lamprinos and Ms Lamprinos managed Mandria and shared all office administration, including the handling of mail.

43    Mandria provided accounting services for Utech. Mandria’s office address at 3 Howard Road Padstow was Utech’s registered address and had been so since 22 July 2021.

44    Mandria had a procedure for processing incoming mail. Relevantly, that procedure was as follows.

45    First, mail was collected from the “office mailbox”. Given that Mr Lamprinos and Ms Lamprinos shared all administrative duties, it may be inferred that the mail was collected by one or other of them. There was no evidence concerning the location of the office mailbox. In the absence of any evidence to the contrary, however, the available and most likely inference is that the mailbox was located at the office premises at 3 Howard Road Padstow. There is no reason to infer otherwise. Mail was also collected from a PO Box, however that evidence can be disregarded because Mr Kutasi did not suggest that he addressed the envelope containing the statutory demand to a PO Box.

46    Second, the mail collected by either Mr Lamprinos or Ms Lamprinos was opened, reviewed and categorised. One of the categories included statutory demands, which were both scanned and stored on Mandria’s server and copied and “included” in the client’s “physical file”. Documents within that category, including statutory demands, were also distributed via email and “usually” registered post. Mr Lamprinos’s evidence was also that, in the case of “time sensitive” documents such as statutory demands, he often telephoned the client to inform them of the receipt of the document.

47    The evidence of both Mr Lamprinos and Ms Lamprinos was that, while they did not recall having received a statutory demand addressed to Utech at Mandria’s address, if it had been received it would have been dealt with in accordance with the procedure for processing incoming mail that they had described. They had both examined Mandria’s digital and physical file for Utech and stated there was no record on those files that the statutory demand had been received. They both maintained that if the statutory demand had been received at Mandria’s address (which was Utech’s registered address) there would have been a record of it having been received having regard to the mail procedure.

48    The evidence of Mr Lamprinos and Ms Lamprinos was compelling evidence that the statutory demand was not received at 3 Howard Road Padstow, which was both Mandria’s address and the address of Utech’s registered office. In the absence of any challenge to their evidence, it may be accepted that, such was the procedure that was in place at Mandria, if the statutory demand that Mr Kutasi maintained he had posted to the address of Utech’s registered office had been received at that address, Mandria would have a record of that receipt. There was no such record. Moreover, given that Mr Lamprinos and Ms Lamprinos were responsible for the mail procedure at Mandria, they may relevantly be taken to be the occupants of the address at 3 Howard Road Padstow. Evidence of non-receipt by them, in the circumstances, is tantamount to evidence of non-delivery.

49    As has already been noted, Mr Lamprinos and Ms Lamprinos were not cross-examined. It would have been open to Electrical Data to cross-examine those witnesses and put to them, for example, that the mail procedure at Mandria was not invariable, or that it was flawed or deficient in certain respects, or that the Mandria office mailbox was not secure, or was located outside the premises and therefore subject to vagaries that might explain how mail delivered to the mail box might go missing. Electrical Data also did not advance any submissions concerning any inadequacies in the mail processing system described by Mr Lamprinos and Ms Lamprinos. If Electrical Data wanted to maintain that the statutory demand was delivered to Utech’s registered address, it was effectively incumbent on it to challenge or demonstrate a deficiency in the evidence of Mr Lamprinos and Ms Lamprinos and identify a reason why their evidence did not establish non-receipt of the statutory demand at the address of the registered office. It did not attempt to do so.

50    This is not a case, like Sharjade, where non-receipt of the statutory demand was not tantamount to evidence of non-delivery because of the remotely located and insecure nature of the mailbox at the address in question in that case. This was also not a case like In the matter of Healthy Industries Pty Ltd [2018] NSWSC 1172, where the evidence revealed that there was no system in place at the registered office of the company to ensure that documents once deposited into the letterbox did not go astray after they were delivered (see Healthy Industries at [37]).

51    In the circumstances, the evidence of Mr Lamprinos and Ms Lamprinos must be taken to support the inference that the statutory demand addressed to Utech was not delivered to Utech’s registered office at 3 Howard Road Padstow.

52    It is true that it is somewhat difficult to explain how that could be so in circumstances where the evidence otherwise indicated that the statutory demand had been posted to the address of Utech’s registered office, and that Mr Kutasi did not himself receive any “returned mail” sent to Utech’s registered office. There was, however, no evidence of any invariable system in place at Mr Kutasi’s firm which would have ensured that any such returned mail notification was received or seen by him. Moreover, the evidence concerning the lack of communication and coordination between Mr Kutasi and Mr Shamsabad in respect of the postage of the demand would tend to support the inference that any relevant systems in place at Mr Kutasi’s firm in respect of the receipt of mail were not invariable or reliable. That weakens any inference that may be available from Mr Kutasi’s evidence concerning his non-receipt of any returned mail. There was also no evidence concerning the certainty or infallibility of Australia Post’s system of ordinary mail. That leaves open the inference that the envelope that Mr Kutasi said that he placed in an Australia Post box in Crows Nest may for some unexplained reason have gone astray.

53    I am, in all the circumstances, persuaded that the available and most probable inference to be drawn from the evidence as a whole is that, for whatever reason, the statutory demand that Mr Kutasi said he posted to Utech’s registered office was not delivered to the registered office. In accordance with the principles discussed at length earlier, service of the statutory demand on Utech therefore cannot be deemed to have taken place in accordance with s 29(1) of the Interpretation Act. Given that finding, it is unnecessary to consider issues relating to the date upon which service of the notice may be taken to have been effected.

54    Electrical Data suggested, albeit faintly, that the statutory demand was informally served and brought to the attention of Utech because Mr Kutasi emailed a copy of the demand to Utech’s solicitor. That email, however, simply attached what was said to be a draft statutory demand that would be served if Utech’s solicitor provided no explanation why that course of action should not be followed. That could not sensibly be said to have constituted service, or even informal service, of the statutory demand.

CONCLUSION AND DISPOSITION

55    The statutory demand which forms the basis of Electrical Data’s application to wind up Utech was not proved to have been served on Utech in accordance with s 109X(1)(a) of the Corporations Act and s 29(1) of the Interpretation Act. Electrical Data did not identify any reason why, if the issue concerning service was determined adversely to it, its Originating Application should not be dismissed. Nor did it point to any reason why, if the Originating Application was dismissed, it should not be ordered to pay Utech’s costs.

56    It follows that Electrical Data’s Originating Application must be dismissed with costs.

Associate:

Dated:    7 August 2024