(I have omitted the last digits of the mobile number as it is Mr Watson's private telephone; those digits did, however, appear in the sign.)
9 Ms Buckland observed mail wedged between the two locked glass doors on the street frontage. This made her think that no-one was inside. She then slid under the glass doors the envelope containing the statutory demands.
10 At that point, Ms Buckland realised that she had failed to correct an error in the address written on the envelope. She removed the mail wedged between the two doors to make it easier to retrieve the envelope. She managed to get the envelope back from under the doors. She then corrected the address on the envelope, again pushed it under the doors and replaced the wedged mail in about the position she had found it.
11 The defendants have put into evidence a photograph taken by Ms Buckland's son (who was with her) showing the envelope deposited by Ms Buckland on the carpeted floor of the vestibule, wholly inside the glass doors and sufficiently clear of them not to be able to be reached by anyone outside. The photograph also shows what appear to be four envelopes wedged between the two doors.
12 Mr Watson closed his office early on 23 December 2003. All staff members other than himself left before 1pm. Mr Watson left "close to 2" he said, although accepting that it could have been around 1.30pm. No one attended the office the next day, which was Christmas Eve. The envelope containing the statutory demands was found in the ground floor vestibule at 31 Egerton Street by an employee of the Watson & Proud practice on 29 December 2009, the first business day after the Christmas break.
13 Mr Beale of counsel, who appeared for the plaintiff, accepted that the statutory demands had been served on the plaintiff but submitted that the date of service was 29 December 2009. Mr Andronos of counsel submitted on the defendant's behalf that service took place on 23 December 2009. There is no challenge to Ms Buckland's account of her actions at about 1.30pm on 23 December 2009.
14 Mr Beale's basic contention is that service occurred only when the documents came into the possession of the Watson & Proud employee on 29 December 2009. In resisting the proposition that there was service on 23 December 2009, Mr Beale sought to draw a parallel with Jin Xin Investment and Trade (Australia) Pty Ltd v ISC Property Pty Ltd [2006] NSWSC 7; (2006) 196 FLR 350. That case concerned service of an originating process on a company the address for service of which was:
"David Kam & Co, Solicitors and Migration Agents, Suite 103, Level 1, The Chambers, 370 Pitt Street, Sydney NSW 2000."
15 The originating process was left in a letterbox in the ground floor lobby of the multi-storey office building at 370 Pitt Street. It was held that it had not been left at the nominated address on Level 1.
16 Mr Beale also relied on James v Ash Electrical Services Pty Ltd [2008] NSWSC 1112; (2008) 73 NSWLR 95 where it was held that a statutory demand placed in a letterbox on the external wall of a building at 14 Pacific Highway, Wyong was not left at a registered office described as
"Berkman, Suite 1A, 14 Pacific Highway, Wyong NSW 2259".
17 Mr Andronos referred to a decision of McLelland CJ in Eq in Re Emeritus Pty Ltd [1967] 1 NSWR 458, a case involving s 222 of the Companies Act 1961, a forerunner of the present s 459E. Under s 222(2), a presumption of insolvency arose if certain conditions were satisfied, including that the creditor had "served on the company by leaving at the registered office" a demand for payment. The company in question had a registered office described as
"Rooms Nos 2, 3 and 4, First Floor, corner of Hume Highway and Highland Avenue, Yagoona".
18 The affidavit of service of the demand referred to the process server's "placing the same under the door on the ground floor of premises situated at the Corner of Hume Highway and Highland Avenue Yagoona aforesaid giving access to the stairway leading to rooms numbers 2, 3 and 4 on the first floor of the said premises, the said door having been found by me to be locked". The court stated, without elaboration or explanation, that "service of the notice of demand did comply with the provisions of s 222(2) …".
19 In all three cases mentioned, a particular suite or room on a particular floor was identified as the location of the registered office. In two instances, the name of a practice or firm ("David Kam & Co" or "Berkman") also formed part of the description of the registered office.
20 The present case is different in that, while the name of a practice or firm is mentioned ("Watson & Proud"), there is no reference to a suite number or room number. There is merely a reference to the ground floor without identification of any part or section of it.
21 This makes the circumstances of the present case much more akin to those in Saferack Pty Ltd v Marketing Heads Australia Pty Ltd [2007] NSWSC 1143; (2007) 214 FLR 393. That case concerned a registered office recorded as:
"c/- Stratford Fisher & Associates, Level 4, 44 Miller Street, North Sydney NSW 2060".
22 The solicitor seeking to effect service by leaving documents at that registered office went to Level 4 and saw on a desk in a reception area a sheet of A4 paper in the nature of a sign bearing the words "Stratford Fisher & Associates". Service by leaving the documents with a person at the location of that A4 sign was held to be good service within s 109X(1)(a) since, on the evidence, the A4 sign was used to identify the part of Level 4 at which contact could be made with Stratford Fisher & Associates. There was a finding that the sign had been put there by the principal of Stratford Fisher & Associates.
23 In the present case, the registered office is identified by three characteristics. The first is the street address of the relevant building, 31 Egerton Street. The second is the level within the building, that is, the ground floor. The third is the accounting practice, Watson & Proud. A person who has located the building at 31 Egerton Street thus has the task of finding Watson & Proud on the ground floor.
24 Anyone who went to 31 Egerton Street on 23 December 2009 found the name "Watson & Proud" prominently displayed on the sign affixed to the locked doors at the street frontage. The message conveyed by the sign was that the premises inside those doors were the premises of Watson & Proud. No reference to any part of those premises was contained in the sign. The remainder of the sign's content, coupled with the fact that the outer doors were locked, indicated that anyone wishing to enter in order to visit Watson & Proud should call one of the telephone numbers. Someone who wished merely to deposit documents and not to visit had no need to enter if, as was the case, it was possible to cause the envelope to be placed inside the identified premises by sliding it under the locked door to which the identifying sign was attached.
25 Mr Watson made it clear in his evidence that no one other than Watson & Proud occupied any part of the ground floor (apart from the Watson & Proud office suite and an electrical control room, the ground floor was vacant). He also made it clear and that it was his habit to keep the street doors locked at all times. He had control over the locking and unlocking of the street doors. Having chosen to keep them locked, he made it known by means of the sign attached to them that the locked doors were the means of access to Watson & Proud and that Watson & Proud was located behind those doors.
26 Here, as in Saferack Pty Ltd v Marketing Heads Australia Pty Ltd (above), the real question is as to the identification of a place described as "Watson & Proud, Ground Floor, 31 Egerton Street, Silverwater NSW 2128". The answer is that there was a place so identifiable at 31 Egerton Street: that the sign affixed by Mr Watson to the locked doors at the building's street frontage identified the ground floor premises behind those doors as those of Watson & Proud.
27 It follows that the action of Ms Buckland in depositing the envelope containing the two statutory demands under the glass doors at the street frontage so as to be wholly within the premises behind those doors constituted "leaving" each such document "at" the registered office of the plaintiff. Each statutory demand was therefore served on the plaintiff on 23 December 2009.
28 Mr Beale referred to the fact that s 145(1), dealing with opening hours of a registered office, requires that such an office be "open to the public" on each business day "from at least 10am to 12 noon and from at least 2pm to 4pm" (I leave to one side the alternative of "at least 3 hours chosen by the company between 9am and 5pm", given the absence of evidence of any specification of particular hours in accordance with s 145(2)); and that Ms Buckland's visit was at 1.30pm, that is, within the permitted period of closing. But there is nothing in s 109X, s 145 or elsewhere that somehow vitiates service effected by leaving a document at a registered office outside the hours that s 145(1) requires it to be "open to the public". The most that might flow from that is the possibility referred to as follows by Hodgson JA in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259; (2006) 23 BCL 292 at [54] with specific reference to s 109X of the Corporations Act:
"In the case of leaving a document at a company's registered office, prima facie the time service is effected would be the time of leaving the document; although, if a document is left there outside normal office hours, at a time when the office is in fact closed, it is at least arguable that service is not effected until the document is either detected by a person acting on behalf of the company, or the commencement of the next period of normal office hours, whichever is the earlier."