plaintiff. Determined the separate question in favour of the plaintiff: the statutory demand was served on 24 March 2020 and therefore the temporary extension of the time to comply (Sch 12 Pt 2 of the...
Key principles
On the balance of probabilities the plaintiff proved service of the statutory demand to the company's registered office by Australia Post Express Post on 24 March 2020, based on...
GPS coordinates or a Google Maps pin recorded by Australia Post, located slightly outside the registered property, do not by themselves displace evidence of delivery to the...
A bare denial of receipt by the recipient (or their agent) does not alone rebut the adducing party's evidence of delivery; more affirmative evidence (for example return to...
Issues before the court
Whether the creditor's statutory demand was served on or before 24 March 2020 (ie before commencement of the Coronavirus Economic Response Package...
What weight to give to Australia Post tracking data and GPS/Google Maps pin evidence when assessing whether a postal item was delivered to the...
Plain English Summary
The court found, on the balance of probabilities, that an Express Post envelope containing a statutory demand was posted by the plaintiff's solicitor on 23 March 2020 and delivered by Australia Post to the defendant company's registered office on 24 March 2020. Australia Post tracking records showing a delivered event and an explanation of how GPS pins are captured were decisive. The defendant's denials of receipt and the presence of a Google Maps pin near the neighbouring property did not displace the evidence of delivery. Because the demand was served before 25 March 2020, the temporary extension of time to comply introduced by the Coronavirus legislation did not apply.
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Cited legislation
6 cited instruments linked from this judgment.
Deep Dive
1,978 words · generated 30/07/2026
What happened
Facts and procedural posture
This was a narrowly focussed, ex tempore application to determine a single threshold question: whether the creditor's statutory demand was served on or before 24 March 2020 (the day before Sch 12 Pt 2 of the Coronavirus Economic Response Package Omnibus Act 2020 (Cth) commenced on 25 March 2020). Black J directed that this question be heard separately and first [ex tempore opening; judgment]. Rees J heard the matter and delivered the decision on 7 September 2020.
The creditor (Savoy Investments Pty Limited) relied on traditional service by post to the company's registered office (Corporations Act s 109X(1)(a)). The company (MYAO Travel Pty Limited) has a registered office at No 41 of the street in Carlingford. The statutory demand and supporting affidavit were placed into a prepaid Australia Post Express Post envelope by the plaintiff's solicitor on 23 March 2020 and the office's outgoing mail register records an Express Post posting addressed to the defendant [Facts].
Australia Post records produced under subpoena show: processing at a sortation facility (Alexandria) at 6.44 pm on 23 March 2020; at North Ryde Delivery Centre the next morning, added to a scanned list at 8.42 am, placed on board for delivery at 9.37 am; and a delivered event at 11.13 am on 24 March 2020, with the delivery recorded by a postperson abbreviated as 'HEYDONB' [Facts].
The defendant denies receipt. A Google Maps pin supplied with Australia Post material appeared outside the neighbouring property (No 43) rather than directly outside No 41. Australia Post explained how GPS co-ordinates are captured by a handheld scanner at the moment the driver records delivery; the co-ordinates can reflect the driver's or vehicle's location rather than the exact drop point. There was no evidence that Australia Post had formed a view the item had been misdelivered or that it had been returned to sender [Facts and Law].
The legal question: did the admissible evidence support a finding, on the balance of probabilities, that the statutory demand was delivered to the registered office on 24 March 2020, i.e. before the new Coronavirus Act regime would extend the time for compliance?
Why the court decided this way
Legal framework applied
The judge applied the rules that a document may be served on a company by posting it to its registered office (Corporations Act s 109X(1)(a)), and that the Acts Interpretation Act s 29(1) treats service by post as effected when the letter would be delivered in the ordinary course of post unless the contrary is proved. The Evidence Act presumption that an article sent by post is received on the seventh working day is acknowledged but the plaintiff did not rely on that presumption because it had direct delivery records showing an earlier delivered event [Law].
Evaluation of competing evidence
The plaintiff's case rested on documentary evidence: the outgoing mail register, the solicitor's affidavits about posting, and Australia Post's processing and delivery records showing a delivered event on 24 March 2020. The defendant's case primarily comprised denials of receipt and inference from the Google Maps pin that the parcel might have been left at the neighbouring property. The court observed that a bare denial of receipt, without affirmative evidence such as return to sender or Australia Post confirming misdelivery, is insufficient to displace the inference of delivery drawn from the postal records: the court cited judicial authority that non-receipt alone is not enough to establish non-service; there must generally be positive proof of non-delivery (eg return) [Law citing Dwyer].
On the particular GPS/Google Maps issue, Rees J accepted Australia Post's explanation that the GPS co-ordinates capture the handheld scanner location at activation and can therefore be recorded when the driver is at the vehicle or on the street, rather than precisely at the mailbox. The Google Maps pin in this case sat in the middle of the road and Australia Post's internal case notes did not conclude misdelivery; it instead indicated GPS data consistent with delivery at the correct location [Facts and Conclusion].
Balancing probabilities
Given the strong contemporaneous records (internal office posting records and Australia Post processing/delivery events) and the absence of affirmative proof of misdelivery or return, the judge concluded, on the balance of probabilities, that the statutory demand was delivered to the registered office on 24 March 2020. Consequently, the temporary relief under the Coronavirus Act did not apply to extend compliance time.
Before and after state of the law
Before this judgment
Pre-existing law treats service by post as effective when the letter would be delivered, subject to the ordinary course presumption (Acts Interpretation Act s 29(1)), and recognises the evidentiary presumption in the Evidence Act concerning receipt on the seventh working day unless contradicted. Authorities have also long held that mere non-receipt by the addressee is not usually sufficient to demonstrate non-service; positive proof is ordinarily required where service is contested (eg Dwyer v Canon and others cited). Courts have looked closely at postal records and surrounding evidence when assessing disputed postal service.
What this judgment confirms or clarifies
The judgment reinforces that contemporary postal service tracking records, including delivery events and GPS metadata, are admissible and can be determinative evidence of delivery on the balance of probabilities. It clarifies that a GPS pin or map marker that is slightly displaced does not, without corroborating evidence, establish misdelivery because of the technical explanation for when GPS co-ordinates are captured by a delivery driver’s handheld scanner. Practitioners should therefore be aware that postal tracking/delivery logs are strong evidence and that recipients asserting non-receipt should adduce positive contrary material (returned mail, an Australia Post admission, or other forensic evidence).
Key passages with plain-English translation
Selected passages quoted or relied upon by the court, with translations
Quoted material on GPS capture (court paraphrase of Australia Post explanation):
Court text: tracking information captures GPS coordinates when the handheld scanner is activated; GPS activation is supposed to occur once the item is delivered and the driver clicks an entry; capture can occur at the addressee's residence, at the driver's vehicle or when the driver otherwise finalises the delivery.
Plain-English: The location marker that Australia Post records may show where the postie was standing or where the vehicle was when they clicked the 'delivered' button. It does not necessarily show the exact doorstep or mailbox where the envelope was left.
Court's evidential standard and burden points:
Court text: Section 29(1) of the Acts Interpretation Act provides that 'unless the contrary is proved' service by post is effected at the time at which the letter would be delivered in the ordinary course of post.
Plain-English: The law says that postage counts as service when it would usually arrive, unless someone proves otherwise. That does not mean a recipient can simply deny receipt to overturn a record of delivery.
Court's conclusion:
Court text: On the balance of probabilities ... I find that the Express Post item was delivered to the registered office on 24 March 2020.
Plain-English: Considering all the evidence, it was more likely than not that the statutory demand reached the company on 24 March 2020.
What fact patterns trigger this precedent
Scenarios where the reasoning will be directly useful
Disputed service where a creditor uses a tracked postal service (Express Post/Registered Post) and Australia Post (or other postal provider) records a 'delivered' event prior to a relevant legislative or procedural cutoff date. This judgment supports treating the tracking/delivery event as strong proof of delivery unless the defendant produces affirmative evidence of misdelivery or return.
Disputes relying on GPS metadata or mapping pins as evidence of misdelivery. The judgment provides a roadmap to challenge conclusions drawn solely from a pin on Google Maps, by emphasising the capture mechanics of handheld scanners and the need for more than a relocated pin to prove misdelivery.
Cases where a recipient simply denies receipt but has no contemporaneous evidence that the envelope was returned or that Australia Post acknowledges misdelivery.
Scenarios where the decision may be less helpful
Cases where postal records are ambiguous or internally inconsistent, or where Australia Post admits or records explicit misdelivery or return to sender. If there is evidence that the item was returned or a delivery exception was logged, then the result may differ.
Situations involving non-postal methods of service, or where the sending party cannot produce reliable contemporaneous posting records.
How later courts have treated it
This decision is pragmatic and fact-driven rather than asserting new law. It applies established principles about postal service evidence and the need for affirmative proof to rebut delivery records. Later courts facing similar fact patterns are likely to treat contemporaneous courier/postal tracking records as persuasive evidence of delivery, particularly where the sending party can demonstrate regular office posting procedures and an intact chain of custody. Conversely, courts will still require positive evidence of non-delivery to displace such records. Practitioners should anticipate judges will interrogate GPS metadata and request explanations from carriers about how location data are captured.
Still-open questions
Areas where uncertainty or litigation risk remains
Extent of GPS evidence weight: The judgment accepts Australia Post's explanation of GPS capture as sufficient to weaken the inference from a mislocated pin. However, the precise circumstances in which GPS co-ordinates will conclusively establish misdelivery remain undetermined. For example, if GPS co-ordinates place the driver unequivocally at a neighbour's mailbox with corroborating CCTV evidence, the result could differ. The threshold and combination of technical and corroborative evidence necessary to rebut delivery records remain fact-sensitive and hence unsettled.
Reliance on postal internal notes and transcription errors: The court accepted that an Australia Post officer's entry such as 'CAWLINGFORD' indicated a typographical error and did not undermine the delivery evidence. There is scope for future litigation where multiple inconsistencies in carrier records could cumulatively undermine confidence in delivery logs. What volume or kind of discrepancy suffices to displace the presumption is not precisely defined.
Interplay with statutory presumptions: The court did not rely on the Evidence Act presumption of receipt on the seventh working day because direct evidence showed earlier delivery. The contours of when to rely on the statutory presumption versus direct postal tracking evidence may require further elaboration when tracking data are incomplete or disputed.
Technical standards for admissibility and expert evidence: As carrier systems grow more complex, the need for expert evidence to explain device activation, GPS accuracy tolerances, and system logs may increase. This judgment treats the carrier’s explanatory statements as sufficient; courts in future may require independent technical explanation or admissible expert evidence about GPS accuracy thresholds.
Practical takeaways for practitioners
When serving statutory demands by post, use tracked/express services, keep contemporaneous internal posting records, and retain tracking numbers and carrier documentation. Those records are likely to be persuasive evidence of effective service.
If defending non-receipt, gather affirmative contemporaneous evidence of non-delivery: return-to-sender notices, carrier exception reports, CCTV, sworn evidence of mailbox checks contemporaneous to delivery times, or carrier admissions. Mere denial of receipt is unlikely to suffice.
Where carrier GPS or mapping pins appear to indicate misdelivery, obtain direct clarification from the carrier about how the data were captured and whether the carrier has any internal finding of misdelivery; the carrier’s own records and explanations will often determine the weight of such data.
Conclusion
Rees J's decision is an application of well-established evidentiary and service principles to modern postal tracking technology. It confirms that contemporaneous carrier records, including delivery events and captured GPS metadata when properly explained, carry substantial weight and will prevail against bare denials of receipt. The judgment is an important practical reminder for litigants about the evidential value of tracked postal services when serving documents that trigger time-sensitive consequences.
HER HONOUR: On 17 August 2020, Black J directed that the question of whether the creditor's statutory demand was served on or before the commencement of the Coronavirus Economic Response Package Omnibus Act 2020 (Cth) be heard separately and before all other issues in the proceedings. Part 2 of Schedule 12 of the Coronavirus Economic Response Package Omnibus Act, entitled "Temporary relief for financially distressed individuals and businesses", amends the Corporations Act 2001 (Cth) and Corporations Regulations 2001 (Cth) in respect of statutory demands served on or after the commencement of the Schedule, being 25 March 2020. Statutory demands served on or after 25 March 2020 must be complied with within six months rather than the usual 21 days provided by section 459F of the Corporations Act.
The plaintiff says it served the demand on 24 March 2020, the day before commencement of the Coronavirus Economic Response Package Omnibus Act. The plaintiff and defendant sought to rely on a surprisingly large number of affidavits, documents and written submissions in respect of this issue, including photographs of a mailbox and extracts from a book concerning GPS devices.
[3]
Facts
The defendant company's registered address is at No 41 of a street in Carlingford. That has been the registered address since 2018. Zhiyu Xiong is the sole director and shareholder of the company and his son owns the property in question. The son deposes that he checks the mailbox at the property frequently, if not on a daily basis. Whilst he seldom receives mail for his father, if mail arrives then he passes it onto his father immediately.
The statutory demand in this case was prepared by solicitor, Jinyi Li. Ms Li describes the process which she undertook. On 23 March 2020, Ms Li put the statutory demand, the supporting affidavit and a cover letter into an Australia Post Express Post envelope and wrote the postal address, being No 41 of the street in Carlingford NSW 2118, on the Express Post envelope. A copy of the cover letter, demand and supporting affidavit which Ms Li placed in the envelope is annexed to her affidavit. The Express Post envelope was pre-paid. Ms Li provided the tracking number of the envelope. Ms Li also emailed the documents to an email address for Mr Xiong, advising that the material had been posted. Mr Xiong denies that it was his email address.
Ms Li placed the Express Post envelope at the reception desk in the outgoing mail tray for the clerk, Jinya Yuan, to post. Ms Li says that, as part of the office's procedures, outgoing mail is posted every day at approximately 5.00 pm by Ms Yuan and a record is made in the outgoing mail register. Ms Yuan concurs: as part of the office's practices, a mail register is kept on a daily basis recording the dates, addressees and types of postage for all incoming and outgoing mail. A copy of the mail register is attached to Ms Yuan's affidavit. The register records that on 23 March 2020 a postal item addressed to the defendant company at No 41 of the street in Carlingford NSW 2118 was to be posted by Express Post.
The plaintiff issued a subpoena to Australia Post, seeking documents related to the delivery of the Express Post envelope with the relevant tracking number. Nine documents were produced. According to these records, at 6.44 pm on 23 March 2020, the Express Post envelope was "processed at sortation facility" at "Alexandria DF". This suggests that the office procedures described by Ms Li and Ms Yuan were adhered to as the envelope had been collected and taken to an Australia Post facility for sorting.
By 24 March 2020, it is apparent from Australia Post's records that the postal item was now at the North Ryde Delivery Centre. At 8.42 am on 24 March 2020, the mail item was "Added to Scanned List" at North Ryde Delivery Centre and, at 9.37 am, placed "On board for delivery with driver". On 24 March 2020, at 11.13 am according to Australia Post's records, the item was "Delivered". The person delivering the item was recorded as "HEYDONB", presumably, an abbreviation of the postperson's name, of "PDO" being the acronym used by Australia Post.
[4]
Law
Section 109X(1)(a) of the Corporations Act provides that a document may be served on a company by posting it to the company's registered office. The Acts Interpretation Act 1909 (Cth) applies to the Corporations Act: section 5C of the Corporations Act. Section 29(1) of the Acts Interpretation Act provides that "unless the contrary is proved" service by post is effected at the time at which the letter would be delivered in the ordinary course of post. Section 29(2) notes that the section does not affect the operation of section 160 of the Evidence Act 1995 (Cth). The identical section 160 of the Evidence Act 1995 (NSW), which applies to proceedings in this Court, provides that it is presumed "unless evidence sufficient to raise doubt about the presumption is adduced" that an article sent by post is received on the seventh working day after having been posted.
The plaintiff does not rely upon the statutory presumption but relies upon evidence that the envelope was delivered by Express Post at 11.13 am on 24 March 2020, that is, before the seven working days presumed by the Evidence Act.
The question is whether the plaintiff has established that the statutory demand was sent by Express Post to the registered office of the defendant company and arrived on 24 March 2020 or whether the defendant has proved to the contrary or adduced evidence sufficient to raise doubt about the presumption. As to the latter, Debelle J explained in Dwyer v Canon Australia Pty Limited [2007] SASC 100 at [9]:
…it is not sufficient to prove non-receipt if it is intended to seek to establish that service by post has not been affected. It is necessary to establish a more than positive fact than mere non-receipt by proving, say, that the post office has returned the documents.
As Black J stated in In the matter of Vangory Holdings Pty Limited [2015] NSWSC 546 at [21]:
…inattention and inactivity cannot provide a satisfactory explanation for a failure to comply with or set aside a statutory demand, since otherwise the statutory scheme in relation to statutory demands would be significantly undermined.
Whether something has been served is to be decided on the balance of probabilities. The defendant relied upon Brereton J's review of evidence of service in Northumbrian Ice Cream Co Limited v Breakaway Vending Pty Limited [2006] NSWSC 1216 at [12] and [14] and that of Barrett J in Brown v Bluestone Property Services [2010] NSWSC 869 at [13]. Their Honours' observations were clearly apposite to the evidence before them and are examples of the application of the law to the evidence in each case.
[5]
Conclusion
Here, the evidence establishes that the plaintiff's solicitors had a process for issuing and posting statutory demands which was followed on this occasion by Ms Li, solicitor and Ms Yuan, clerk. The letter was posted by 5.00 pm on 23 March 2020. The documents produced by Australia Post indicated that the envelope was delivered to the registered office at 11.13 am on 24 March 2020. There is no evidence that the envelope was returned to the sender.
The fact that the Google Maps pin appearing on the GPS map sits outside the neighbouring property does not mean that the postal item was delivered to the neighbouring property. The documents produced by Australia Post indicate that the driver was at the location of the Google Maps pin when they activated the device which recorded that the item had been delivered. As mentioned, the Google Maps pin is in the middle of a road. There is no suggestion in the documents produced by Australia Post that it has formed the view at any time that the item of post has been misdelivered to the neighbour. Whilst these things do happen, it is more likely that a mail item correctly addressed to the registered office would be delivered to that address.
It is true that the son denies having received the item, as does Mr Xiong. But on the balance of probabilities, having regard to the records of Australia Post which appear to have a high degree of accuracy, I find that the Express Post item was delivered to the registered office on 24 March 2020. Thus, the Coronavirus Economic Response Package Omnibus Act does not apply to extend the time for compliance with the statutory demand.
[6]
Amendments
10 September 2020 - Coversheet amended from "Assoc" to "Associates"
11 September 2020 - [3], [20] - amended to "son", not "Ms Xiong"
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Decision last updated: 11 September 2020
Parties
Applicant/Plaintiff:
Brown
Respondent/Defendant:
Bluestone Property Services
Legislation Cited (6)
Acts Interpretation Act 1909(Cth)
Coronavirus Economic Response Package Omnibus Act 2020(Cth)
Determined the separate question in favour of the plaintiff: the statutory demand was served on 24 March 2020 and therefore the temporary extension of the time to comply (Sch 12 Pt 2 of the Coronavirus Economic Response Package Omnibus Act 2020) did not apply.
Initial confusion arose because the work centre for the postperson was recorded as "North Ryde DC", whilst the registered office was in Carlingford. In evidence is a series of emails from different officers of Australia Post advising that, while the driver who delivered the item came from the delivery facility located in North Ryde, this did not mean that the item has been delivered in North Ryde. Further, "We have investigated this matter with the North Ryde delivery centre who have confirmed that they believe the item to be delivered as addressed".
A second point of confusion arose from a Google Map produced by Australia Post, with a Google Maps pin outside the neighbouring property at No 43. The accuracy or otherwise of the Google Maps pin was not the subject of evidence. Australia Post produced a record in respect of delivery of the postal item, including "Event Geo location". GPS co-ordinates were recorded, apparently of where the item was delivered. Whether the GPS co-ordinates correspond with the registered office is not the subject of evidence. A letter from Australia Post accompanying the documents produced in answer to the subpoena explained,
Tracking information does not record an address. However, the tracking information recorded in SAP system does capture GPS co-ordinates of deliveries. ... these GPS co-ordinates are captured once the handheld scanner device used by the delivery driver is activated. The GPS activation is supposed to occur once the … tracked item is delivered and the driver clicks an entry in the hand-held device. This step triggers the 'delivered' event tracking history and the capture of the GPS co-ordinates. This final step and capture of the GPS coordinates can occur at the addressee's residence, at the driver's vehicle or when the driver otherwise finalises the delivery.
Thus, the fact that the Google Map pin is located outside No 43 may be because that was where "HEYDONB" or their vehicle was when they activated the handheld scanner device. Consistently with this, I note that the Google Maps pin is in the middle of the road.
Australia Post produced four case summaries in respect of the Express Post item, apparently documenting Australia Post's response to queries raised in respect of delivery. The first case summary, No. 32682128 records, "CAWLINGFORD 2118 was on the envelope". The defendant submitted that this proved that the envelope was misaddressed. I think it more likely indicates that the Australia Post officer who entered the details in the case summary typed the name of the suburb incorrectly, noting that the evidence of Ms Li and Ms Yuan suggests that the envelope was correctly addressed. As the plaintiff submitted, in any event, the postcode was correct. I expect it is not unusual for Australia Post to receive postal items where the address is incorrectly recorded in some way. Even if the suburb has been recorded on the envelope as "CAWLINGFORD 2118", I infer that Australia Post would have been able to deduce the intended suburb with little difficulty.
The defendant points to the second case summary No. 33451578 (which I note records the correct address in full) which records, "Due to time lapse PDO cannot recall this item specifically (delivered in March … GPS shows PDO at correct location at time of delivery scan". Whilst the defendant submits this shows that the postal item was delivered to No 43 rather than No 41, I read it to mean that the Australia Post officer who made this entry interpreted the GPS data as consistent with the delivery at the correct address, being No 41. The fact that the Google Maps pin was not directly outside the house in question did not lead the Australia Post officer to conclude that the item had not been delivered correctly.
Finally, the defendant refers to a fourth case summary No. 34234389 which includes a description of the case, "Advised customer that there are no details of address where delivered". That comment does not seem to me to assist either way.