Brown v Bluestone Property Services

Supreme Court of NSW|2020-09-07|Before: Rees J, Black J

Solicitors: SHL & Associates Lawyers (Plaintiff) Ren Zhou Lawyers (Defendant) File Number(s): 2020/168469

ex tempore Judgment

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.

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.
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.

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.

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.

Amendments 10 September 2020 - Coversheet amended from "Assoc" to "Associates" 11 September 2020 - [3], [20] - amended to "son", not "Ms Xiong" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2020

Acts Interpretation Act 1909(Cth)

Coronavirus Economic Response Package Omnibus Act 2020(Cth)

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