Chen v The College of Building Ltd [2015] ACTSC 19 (18 February 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2015] ACTSC 19

1. The appeal is dismissed.
2. The statutory demand is set aside.
3. The costs orders made by the registrar are confirmed.
4. The parties have until 4 March 2015 to file and serve written submissions about the costs of the appeal.

APPEAL AND NEW TRIAL - Appeal de novo from orders of registrar setting aside statutory demand and ordering creditor to pay debtor's costs - admission of further evidence - registrar's decisions confirmed.

CORPORATIONS - Practice and Procedure - service on corporation by post - presumption of service in ordinary course of post not available in respect of service by post where item not properly addressed to corporation's registered office - presumption of delivery to specified address by fourth business day not available having regard to evidence of later delivery - corporation's mail processed through Australia Post box number but delivered to corporation's office by Australia Post - corporation had no access to "box" - significance of use of post office box - item posted on 13 December - significance of Christmas/New Year "close down" - risks of taking time-critical legal steps around Christmas/New Year period.

Acts Interpretation Act 1901 (Cth), s 29

Corporations Act 2001 (Cth), ss 5C, 109X, 109X(1)(a), 145, 459C, 459E, 459G, 459H, 459H(3)(a), 459H(5), 459J, 459(2)

Evidence Act 1995 (Cth), ss 160, 160(1)

Evidence Act 2011 (ACT), ss 160, 160(1)

Court Procedure Rules 2006 (ACT), rr 6256, 6256(4), 6256(5)

Bellway Corporation Pty Ltd v Ausdrill (1995) 13 ACLC 1663

Bowman v Durham Holdings Pty Ltd [1973] HCA 55; (1973) 131 CLR 8

David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265).

DCT v ABW [2012] FCA 346; (2012) 291 ALR 127

Deputy Commissioner of Taxation v Manta's On The Beach Pty Ltd ACN 141 500 209 [2012] FCA 417

Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573

North Sydney Leagues' Club Ltd v Synergy Protection Agency Pty Ltd [2012] NSWCA 168; (2012) 83 NSWLR 710

Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176

The College of Building Ltd ACN 146 570 087 (Respondent)

Trinity Law as agents for Toomey Maning & Co (Appellant)

Case Title: The College of Building Ltd A.C.N. 146 570 087 v Swee-Eng Chen

1. On 22 May 2014 I heard an appeal from a decision of the Registrar setting aside a statutory demand and making associated costs orders. The Registrar gave reasons for the decisions:

(a) In the matter of The College of Building Ltd A.C.N. 146 570 087 between: The College of Building Ltd A.C.N. 146 570 087 (Plaintiff) And: Swee-Eng Chen (Defendant) dated 11 March 2014, SC47 of 2014 (unreported); and

(b) In the matter of The College of Building Ltd A.C.N. 146 570 087 between: The College of Building Ltd A.C.N. 146 570 087 (Plaintiff) And: Swee-Eng Chen (Defendant) dated 24 March 2014, SC47 of 2014 (unreported).

(a) I confirmed the order setting aside the statutory demand;

(b) I reserved my decision on the appeal against the Registrar's costs orders; and

(c) I noted that when I provided reasons for my decision to set aside the statutory demand, I would also give an indication of my thinking about the costs of the appeal, and invite any submissions the parties wish to make about those costs.

3. Statutory demands are provided for in the Corporations Act 2001 (Cth). The provisions are relevantly as follows:

459C Presumptions to be made in certain proceedings

(a) an application under section 234, 459P, 462 or 464; or

(b) an application for leave to make an application under section 459P.

(2) The Court must presume that the company is insolvent if, during or after the 3 months ending on the day when the application was made:

(a) the company failed (as defined by section 459F) to comply with a statutory demand; or

(3) A presumption for which this section provides operates except so far as the contrary is proved for the purposes of the application.

459E Creditor may serve statutory demand on company

(1) A person may serve on a company a demand relating to:

(a) a single debt that the company owes to the person, that is due and payable and whose amount is at least the statutory minimum; or

(b) 2 or more debts that the company owes to the person, that are due and payable and whose amounts total at least the statutory minimum.

(a) if it relates to a single debt - must specify the debt and its amount; and

(b) if it relates to 2 or more debts - must specify the total of the amounts of the debts; and

(c) must require the company to pay the amount of the debt, or the total of the amounts of the debts, or to secure or compound for that amount or total to the creditor's reasonable satisfaction, within 21 days after the demand is served on the company; and

(f) must be signed by or on behalf of the creditor.

(3) Unless the debt, or each of the debts, is a judgment debt, the demand must be accompanied by an affidavit that:

(a) verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and

(4) A person may make a demand under this section relating to a debt even if the debt is owed to the person as assignee.

(1) A company may apply to the Court for an order setting aside a statutory demand served on the company.

(2) An application may only be made within 21 days after the demand is so served.

(3) An application is made in accordance with this section only if, within those 21 days:

(a) an affidavit supporting the application is filed with the Court; and

(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.

459H Determination of application where there is a dispute or offsetting claim

(1) This section applies where, on an application under section 459G, the Court is satisfied of either or both of the following:

• (a) that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates;
• (b) that the company has an offsetting claim.

(2) The Court must calculate the substantiated amount of the demand in accordance with the formula:

(a) the admitted amount of the debt; or

(b) the total of the respective admitted amounts of the debts;

(a) if the Court is satisfied that the company has only one offsetting claim--the amount of that claim; or

(b) if the Court is satisfied that the company has 2 or more offsetting claims--the total of the amounts of those claims; or

(3) If the substantiated amount is less than the statutory minimum, the Court must, by order, set aside the demand.

(4) If the substantiated amount is at least as great as the statutory minimum, the Court may make an order:

(a) varying the demand as specified in the order; and

(b) declaring the demand to have had effect, as so varied, as from when the demand was served on the company.

"admitted amount" , in relation to a debt, means:

(a) if the Court is satisfied that there is a genuine dispute between the company and the respondent about the existence of the debt--a nil amount; or

(b) if the Court is satisfied that there is a genuine dispute between the company and the respondent about the amount of the debt--so much of that amount as the Court is satisfied is not the subject of such a dispute; or

(c) otherwise--the amount of the debt.

"offsetting claim" means a genuine claim that the company has against the respondent by way of counterclaim, set-off or cross-demand (even if it does not arise out of the same transaction or circumstances as a debt to which the demand relates).

"respondent" means the person who served the demand on the company.

(6) This section has effect subject to section 459J.

(1) On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:

(a) because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or

(b) there is some other reason why the demand should be set aside.

(2) Except as provided in subsection (1), the Court must not set aside a statutory demand merely because of a defect.

(a) a statutory demand may be made by a creditor of a company under s 459E;

(b) under section 459C, a company that fails to comply with a statutory demand within 21 days after service of the demand is presumed to be insolvent;

(c) under s 459G, a company served with a statutory demand may apply to the court, within 21 days after service of the demand, for the statutory demand to be set aside.

5. The period of 21 days is calculated from the date of service of the statutory demand, and includes all days; there is no exception of, for instance, public holidays, and no indication that "day" means "business day" or "working day".

6. Furthermore, there is no scope for a court to extend the 21-day time limit for applying for the demand to be set aside (David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265).

7. The grounds on which a statutory demand may be set aside are set out in s 459H or 459J of the Corporations Act. Relevantly, s 459H operates to produce the result that where there is a genuine dispute about the existence of the debt, the statutory demand must be set aside (via s 459H(3), paragraph (a) of the definition of "admitted amount" in s 459H(5), and the formula in s 459(2)).

8. The appellant, Swee-Eng Chen, claimed to be owed an amount of $10,000 by The College of Building Ltd (the College). On 13 December 2013, he posted a statutory demand and accompanying affidavit about the debt to the registered office of the College, relying on s 109X(1)(a) of the Corporations Act, which is relevantly as follows:

(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; or

Application to set aside the statutory demand

9. On 31 January 2014, the College filed and served an application for the Supreme Court to set aside the statutory demand.

10. On 3 March 2014, the registrar heard the application, and on 11 March 2014 set aside the statutory demand. The question of costs was reserved, and argument about costs was heard on 17 March 2014.

11. On 24 March 2014, the registrar ordered that Mr Chen pay the College's costs of and incidental to the application on a party-party basis until 12 February 2014 and on an indemnity basis after that.

12. On 26 March 2014, Mr Chen's appeal from the registrar's decision was docketed to me. The initial appeal had not dealt with the costs orders, and on 24 April 2014 I gave leave to Mr Chen to file and serve an amended notice of appeal, and to the College to file and serve further affidavit evidence.

13. On 8 May 2014 I gave Mr Chen leave to file and serve a further amended notice of appeal (which had been foreshadowed on 24 April, depending on the contents of the further affidavit evidence provided by the College). I also made orders for the exchange of written submissions, and listed the matter for hearing on 22 May 2014.

14. This appeal is subject to rule 6256 of the Court Procedures Rules 2006 (ACT), which is as follows:

(a) an order made by the registrar of the Supreme Court in the exercise of jurisdiction given under rule 6250 (Jurisdiction exercisable by registrar of Supreme Court);

Note Order is defined in the dictionary (see also def made ).

(2) If the order is made by the registrar of the Supreme Court, and a party to the proceeding is dissatisfied with the order, the party may appeal, in accordance with these rules, to the Supreme Court constituted by a judge or the master.

Note See the Supreme Court Act 1933 , s 8 (Exercise of jurisdiction) and r 6200 (Jurisdiction exercisable by master).

(5) However, each party to the appeal may, subject to subrule (6) and any proper objections about admissibility, rely on any affidavit used, and any evidence given orally, before the registrar.

(6) If a party to the appeal requires the attendance of someone for examination at the hearing of the appeal, an affidavit made, or evidence given, by the person must not be used unless the person attends for examination or the court gives leave.

Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(a) confirm, amend or set aside the registrar's order; and

(b) make any other order the court considers appropriate.

Note See pt 5.2 for the procedure to be followed for an appeal against an order of the registrar.

15. By virtue of rr 6256(4) and (5), the appeal is an appeal de novo, in which the court may generally take account of evidence led at the original hearing and any other evidence admitted on the appeal. On such an appeal, the Court may overturn the original decision regardless of error (Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573 at [57]).

(a) that the statutory demand, having been posted on 13 December 2013, was presumed to have been delivered, and therefore served, on 19 December 2013, or alternatively that it should be found to have been delivered before 10 January 2014;

(b) that the 21-day deadline for the College to meet this demand, or apply for it to be set aside, was accordingly 9 January 2014, or alternatively that the deadline was before 31 January 2014;

(c) that the College's application filed on 31 January 2014 was accordingly out of time; and

(d) that the registrar therefore had no power to set aside the statutory demand.

(a) that the statutory demand was received by the College on 13 January 2014;

(b) that its 31 January 2014 application for the statutory demand to be set aside was therefore within time; and

(c) that therefore, the registrar was empowered to set aside the demand on the ground that there was a genuine dispute about the debt (at [6] above).

18. Section 109X of the Corporations Act is relevantly as follows:

(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;

19. The parties also rely on s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the uniform Evidence Act.

20. The Acts Interpretation Act applies, as in force on 1 January 2005, in interpreting the provisions of the Corporations Act (Corporations Act, s 5C).

21. It is not clear to me whether the applicable version of s 160 is that found in the Evidence Act 1995 (Cth) (relied on by the appellant) or the Evidence Act 2011 (ACT) (relied on by the respondent) (but see Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176 at [27] - [65]). For no apparent reason, the two provisions are not identical, but there is no claim that in this case the differences are significant.

Acts Interpretation Act 1901 (Cth)

(1) 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 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.

Evidence Act 1995 (Cth) [Evidence Act 2011 (ACT)]

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced [presented]) 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 [the day it was posted].

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

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

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

23. There is undisputed evidence that the statutory demand was posted on Friday 13 December 2013, addressed (in general terms) to the College's registered office.

Was the statutory demand deemed to have been served?

24. Under s 29 of the Acts Interpretation Act, service would be deemed to have been effected by Mr Chen properly addressing, pre-paying and posting the document as a letter. Furthermore, unless the contrary is proved, that service is deemed to have been effected "at the time at which the letter would be delivered in the ordinary course of post".

25. Under s 160(1) of the Evidence Act, the Commonwealth form of which at least is explicitly not "affected" by s 29 of the Acts Interpretation Act (s 29(2)), the item posted by Mr Chen was presumed to have been received as addressed on the fourth working day after it was posted, unless "evidence sufficient to raise doubt about the presumption is adduced".

(a) if the s 29 requirements are met, service of the posted item is deemed to have been effected at the time at which it would have been delivered in the ordinary course of post, unless the contrary is proved; and

(b) if the s 160 requirements are met, delivery to the specified address is presumed to have occurred on the fourth business day after posting, unless there is evidence "sufficient to raise doubt about" that presumption.

27. I note first that evidence "sufficient to raise a doubt" about the presumption is not the same as evidence proving the contrary of a proposition (Deputy Commissioner of Taxation v Manta's On The Beach Pty Ltd ACN 141 500 209 [2012] FCA 417 at [12]); North Sydney Leagues' Club Ltd v Synergy Protection Agency Pty Ltd [2012] NSWCA 168; (2012) 83 NSWLR 710 at [60] - [61]).

28. There was no evidence before me about the ordinary course of post. Accordingly, if the s 160 requirements were met and in the absence of evidence sufficient to raise a doubt about the presumption available under s 160, Mr Chen's statutory demand would be presumed to have been delivered on Thursday 19 December 2013. The day that was 21 days later was 9 January 2014; if the presumption applies, then the College's application for the statutory demand to be set aside was out of time.

29. Furthermore, the day that was 21 days before 31 January 2014, when the College filed its application to have the statutory demand set aside, was 10 January 2014. If I find that the statutory demand was served on the College before 10 January 2014, then the College's application for the statutory demand to be set aside was out of time.

30. Thus, whether Mr Chen's claim that the College was out of time in seeking to have the statutory demand set aside is entitled to succeed depends on the question whether the statutory demand was served on the College before 10 January 2014. A finding to the effect that the statutory demand was served (as distinct from received) at any time before 10 January would be sufficient for Mr Chen to succeed.

31. The College says that the requirements of s 29 of the Acts Interpretation Act are not satisfied, that there is evidence sufficient to raise a doubt about the presumption under s 160 of the Evidence Act that the statutory demand was received on 19 December 2013, thereby displacing that presumption, and evidence that the demand was in fact delivered (and therefore served) on 13 January 2014.

32. At the hearing of the appeal, the appellant read the affidavit of Swee-Eng Chen sworn on 27 February 2014.

(a) Affidavit of Robert John Hunt sworn on 31 January 2014

(b) Affidavit of Sean Michael Bruce affirmed on 4 February 2014

(c) Affidavit of service of Barton James Wood sworn on 7 February 2014

(d) Affidavit of service of John Daly affirmed on 20 February 2014

(e) Affidavit of Robert John Hunt sworn on 2 May 2014

(f) Affidavit of Sean Michael Bruce affirmed on 2 May 2014.

34. As is apparent from the dates, the later affidavits sworn by Mr Hunt and Mr Bruce were prepared for the appeal and were not available at the hearing before the registrar.

35. Both Mr Hunt and Mr Bruce also gave oral evidence at the hearing before me, and were cross-examined at some length.

Arrangements for receipt of mail by the College

36. The relevant arrangements for the receipt of mail by the College, as they emerged from the evidence, are described below.

37. The College is a wholly-owned subsidiary of the Australian Institute of Building (AIB). AIB and the College operate from a suite on the ground floor of the building at 217 Northbourne Avenue, Turner, ACT, which is among other things the registered office of the College.

38. It seems that the arrangements for the delivery of mail to that building involve AIB having a post office box number for a "box" which is in fact managed by Australia Post, in the sense that AIB uses that box number as its postal address but has no key and cannot access the physical box (if indeed there is such a thing, as distinct from, for instance, a pigeonhole in a sorting room). Rather, mail addressed to that box number (and apparently mail addressed to the street address) are consolidated by Australia Post and delivered in a crate which is left outside the door to AIB's premises within the Northbourne Avenue building.

39. There is some confusion in the College's affidavits about this matter, but it is apparent, including from a photograph annexed by Mr Hunt, the General Manager of the College, to his 2 May 2014 affidavit (Annexure O), that when the building is open, the mail crate can be delivered and left inside the building but outside the AIB office.

40. Thus, in the ordinary course of post, mail available for delivery to AIB would be delivered to its premises on a business day on which the building was open, whether or not AIB's offices are open on that day. This is presumably why, if the AIB office is to be closed on a business day, it is desirable to ask Australia Post not to deliver AIB mail, rather than to have that mail sitting outside an unattended office for one or more business days.

41. It also seems that by late 2013, very little mail was received by the College, and its mail arrangements appear to have been swept up (although not necessarily as a result of any explicit direction or request) into the arrangements made between Australia Post and AIB.

(a) that during the period 13 to 19 December 2013 he had cleared the mail coming to AIB's suite and that it did not contain any envelopes addressed to the College;

(b) that the College's registered office was "officially closed" from 20 December until 13 January, but that some staff members were present from time to time "to monitor AIB business";

(c) that he had instructed Sean Bruce, the administration manager, to have the mail held by Australia Post during the Christmas/New Year closure; and

(d) that on Monday 13 January 2014, when he returned from leave, Mr Hunt again sorted the mail left in the crate outside the AIB office and found Mr Chen's envelope containing the statutory demand.

(a) that he cleared the mail on 20 December 2013, but there was nothing addressed to the College;

(b) that on 23 December he saw that a crate had been left outside the AIB office, but that it contained no mail addressed to the College; and

(c) that on every day of the week Monday 6 to Friday 10 January 2014, he sorted mail from the crate left outside the AIB office, and there was no mail addressed to the College.

44. Both Mr Hunt and Mr Bruce were cross-examined at some length about their evidence, and particularly on the extra details included in each case in their second affidavits. However, while it was apparent that the second affidavits dealt with matters that had apparently not been recognised as important before the original hearing, I see no reason to suspect that the extra material in the second affidavits had been invented to meet the arguments made on behalf of Mr Chen. In particular, I can find no reason to reject or ignore the evidence of Mr Hunt and Mr Bruce that the statutory demand was in fact received by the College on 13 January 2014. However, this does not resolve the question of when it was "served".

45. The College relied on several defects in the addressing of the mail item to avoid the effect of any presumption of delivery at a particular time.

46. The registered address of the College was shown in the ASIC register as:

AUSTRALAIAN [sic] INSTITUTE OF BUILDING

Ground Floor, 217 Northbourne Avenue

TURNER ACT 2612

47. There was a defect in the ACN included in the address shown on the envelope: the ACN shown is that of another AIB company that was de-registered on 22 December 2010, but whose ACN was shown on letterhead used by the College for letters to Mr Chen after 22 December 2010.

48. The College also relied on the fact that the envelope contained two further errors in the description of the College, and omitted part of the College's registered address as recorded in the ASIC register. The address used was:

THE BOARD OF DIRECTORS

COLLEGE OF BUILDING

217, NORTHBOURNE AVENUE

TURNER

ACT 2612

49. The identified errors in description were that:

(a) the College was described on the envelope as "College of Building" whereas its correct name is "The College of Building Ltd" (emphasis added), and

(b) the address omitted "Australian [or Australaian] Institute of Building, Ground Floor", which should have appeared before "217 Northbourne Avenue, Turner ACT 2612".

50. The College argued that these flaws in the address used in posting the demand prevented Mr Chen relying on the statutory presumptions of delivery in the ordinary course of post (s 29 of the Acts Interpretation Act) or of delivery to the specified address on the fourth working day after having been posted (s 160 of the Evidence Act).

51. I would hesitate to give the College the benefit of Mr Chen's mistake about the College's ACN, since that the mistake appears to have resulted from the College's own incorrect usage. It may also be that the omission of "The", and even the omission of "Ltd", would not be significant. However, I need not reach any conclusions about any of those defects, because I am satisfied that in the present circumstances, the omission of "Australian Institute of Building, Ground Floor", is sufficient to require findings:

(a) that the envelope was not "posted to" the College at its registered office for the purposes of s 109X of the Corporations Act (see DCT v ABW [2012] FCA 346; (2012) 291 ALR 127 at [24], although I note that in that case the posted item was never received); and

(b) that the envelope was not "properly addressed" for the purposes of s 29 of the Acts Interpretation Act.

52. It is worth mentioning, although it is not a necessary element in making those findings, that this omission may have been significant in the delayed receipt of the envelope by the College. Having regard to Mr Hunt's evidence that it was very rare to receive mail for the College, it is possible, for instance, that the envelope sat in a post office or mail sorting room for some days over the Christmas/New Year period before it came to the attention of an employee who recognised that mail for the College should be delivered to AIB.

53. The defects in addressing the letter may not directly exclude the operation of the s 160 presumption, in that s 160 does not require a proper or correct address, but presumes mail to have been delivered to the address specified. However, I consider that the defects in the address, together with the evidence on behalf of the College about its receipt of the letter, are sufficient to raise a doubt about the presumption provided for by s 160 of the Evidence Act to the extent that that presumption is relied on to establish delivery to the College on 19 December 2013.

54. Finally, I mention in passing that a submission was made on behalf of Mr Chen disputing a proposition made before the registrar that the statutory demand was defective because it was addressed to a deregistered company (the ACN for which was included in the statutory demand). The submissions relied on s 459J of the Corporations Act which is said to exclude reliance on such flaws in determining whether the statutory demand should be set aside. However, the addressing of the mail item for the purposes of the various statutory presumptions about delivery relates to the address that is shown on the outside of the envelope and that is relied on by those involved in delivering the item; it does not relate to how the statutory demand itself is addressed. Accordingly, the submission, and s 459J, are irrelevant to the current argument about when the statutory demand was served on the College, and I make no further comment about them.

Redirecting its mail to a GPO box is another of the Respondent's excuses for not opening the statutory demand until 13 January 2013.

56. Counsel said that in the absence of evidence on behalf of Australia Post about the delivery of mail to the College's office, Mr Chen was entitled to the benefit of the presumptions as to delivery, and referred to cases such as in which Owen J at 1668 described the arrangement concerned as follows:

The arrangement (quite properly) entered into between the occupier and the post office means that in the normal course of business a letter properly addressed and posted by pre-paid post to the applicant at its registered office would not usually be taken by an employee or contractor or Australia Post and physically deposited by that person at the registered office. That is not something of which a person in the position of the respondent creditor could or would have notice. It seems to me therefore that the term "ordinary course of post", for the purposes of the deeming provision, ought to include a methodological (as well as a temporal) application. It should relate to the ordinary course of post as it affects the company to whom the letter was addressed.

57. In argument, counsel for Mr Chen put that Owen J's reference to "the ordinary course of post for the company" referred to the prevailing circumstances of mail delivery for companies in the general circumstances of the company concerned rather than to particular arrangements for mail delivery set up by the company.

58. Counsel's submission outlined at [56] above might have carried some weight (although not necessarily enough to overcome the defects in the addressing of the envelope) in a case where a company maintains a post box which is required to be cleared by an employee or other person on behalf of the company. Cases of that kind, in which clearing the post box is the company's responsibility, in my view differ from the current case, where the post box number seems to be used as part of Australia Post's delivery arrangements and it is Australia Post, not the company, that is responsible for clearing the "post box" and delivering mail to the company's premises. Here, Australia Post's delivery of mail to the College's premises is the equivalent of its delivery of mail to a post box required to be cleared by the addressee. There is no issue of the College's failure to clear a post box during the holiday period, there is no evidence raising the possibility that the letter sat in a crate delivered by Australia Post before 6 January but unattended on behalf of the College until 13 January, and there is evidence inconsistent with that proposition.

59. Counsel for Mr Chen in written submissions cited other cases about "evidence raising doubt about the presumption" in s 160 of the Evidence Act, but none of them seem to provide any help to Mr Chen in the context of the new evidence provided on appeal, which as already discussed can be accepted as establishing the date on which the statutory demand was delivered to the College.

Scope for delivery significantly before receipt?

60. Submissions were made on behalf of Mr Chen to the general effect that even if the presumptions could not be relied on to establish delivery before 10 January, the evidence about AIB's mail arrangements for the Christmas/New Year period left open the possibility that the letter had been delivered to the College some time before it was received by AIB staff as described in their affidavits.

61. Among other things, counsel submitted that the evidence did not exclude the possibility:

(a) that the letter had been delivered to the location outside the AIB suite before 6 January, either by Australia Post or after it had somehow arrived at the street address;

(b) that it had been removed by another tenant, either by accident or in order to secure it until the AIB offices were again open; and

(c) that it had only been returned to the crate left outside the AIB suite on 13 January.

62. It seems that mail deliveries were affected by the AIB's Christmas close-down, in the sense that there were a number of business days between 23 December 2013 and 6 January 2014 during which mail could apparently have been delivered to the AIB premises, but was not delivered because AIB had asked Australia Post not to deliver it during that period.

63. I accept the submission made on behalf of Mr Chen (citing Bowman v Durham Holdings Pty Ltd [1973] HCA 55; (1973) 131 CLR 8) that in general terms a debtor ought not to be able to rely on declining to accept its mail on a business day in order to postpone the date on which the mail is delivered. If there were evidence suggesting that the College would have received Mr Chen's demand earlier than it did if AIB had not arranged for the mail, to be held by Australia Post over the Christmas New Year break, then there would be a real question about whether Mr Chen's demand should be treated as having been effectively served at a point earlier than when it came to the attention of the College on 13 January 2014.

64. However, in this case, it seems that there was no obstacle placed by AIB to the delivery of mail during the week starting 6 January, and no basis for finding that the delivery of mail available at the Australia Post-controlled post office box was delayed by the stop order beyond 6 January.

65. It is possible to imagine that after a stop order ceases to have effect, there might be a backlog in mail deliveries such that some mail held by Australia Post during the stop order period is delivered some time after the resumption of deliveries and therefore that the held mail is not delivered in the order in which it was received in the relevant "post box". If that is the case, Mr Chen might have been able to obtain evidence from Australia Post to that effect. However, in the absence of such evidence I see no reason to speculate that mail delivered a full week after the resumption of deliveries at the end of a stop order period might in fact have been available for delivery from Australia Post during that stop order period.

66. Furthermore, there is evidence that mail was received on 6 January and during that week up to and including 10 January, but that such mail did not include the statutory demand.

67. Such evidence as there is suggests that it was not any delay caused by the stop order that meant that the statutory demand was not received until 13 January. Counsel may be correct that the evidence does not exclude the possibility described at [61] above, but nor does it provide any basis for such speculation.

68. Counsel for Mr Chen also pointed to the fact that the College, as a public company, was required to have its registered office open for at least three hours each business day (s 145, Corporations Act), but that the College's evidence was that the company's office was not open at least during the period from 21 December to 5 January. Counsel argued that the College "cannot improve its position by its own wrongdoing".

69. If the evidence had suggested that the late delivery of the statutory demand was attributable to the closure of the relevant premises during the Christmas/New Year period, then this argument would carry some weight. However, since I have found that the evidence does not provide any basis for attributing the delay to that closure, then the closure is irrelevant to the service of the statutory demand, and this argument must be rejected.

70. I am satisfied on the balance of probabilities that the statutory demand was delivered by Australia Post to the AIB suite, and received on behalf of the College, on 13 January 2014. Certainly, the evidence brought by the College does not conclusively exclude the alternative scenarios suggested by counsel for Mr Chen, and the position might be different if I had to be satisfied of the delivery date beyond reasonable doubt, but that is not the requirement. Furthermore, I see no basis for finding that the statutory demand would have been delivered earlier than 13 January 2014 (relevantly, before 10 January) if there had been no Christmas close-down of the AIB office and no stop order advised to Australia Post by AIB.

71. Accordingly, I find that Mr Chen's statutory demand was served on the College on 13 January 2014, and that therefore, the College's application for the statutory demand to be set aside was made within time and was properly within the jurisdiction of this court.

72. Counsel for the Mr Chen conceded at the hearing that there was in fact a dispute about the existence of the debt, such as to justify the setting aside of the statutory demand if the application for such an order had been made within time.

73. The registrar was correct in setting the statutory demand aside, and that order is confirmed.

74. As noted, the registrar ordered that the College's costs of the earlier stages of the application before him be paid by Mr Chen on a party-party basis and that the costs of the later stages be paid by Mr Chen on an indemnity basis.

75. As well as appealing the registrar's decision to set aside the statutory demand, Mr Chen has appealed against the costs order. The written submission about costs was simply that if I found that the College's application to set aside the statutory demand was filed out of time, the registrar's costs order should be set aside and the costs of the hearing before the registrar, as well as the costs of the appeal, should be paid by the College.

76. The draft further amended notice of appeal that was provided when Mr Chen sought leave to file it added a reference to the registrar's costs order (which was made after the original notice of appeal was filed), and sought an order that the College pay Mr Chen's costs of and incidental to the appeal and the proceedings before the registrar.

77. I have no submissions before me about the registrar's costs orders except those made on behalf of Mr Chen to the effect that, if the registrar's order setting aside the statutory demand is overturned, then the associated costs order should also be set aside.

The defendant pay the plaintiff's costs of and incidental to the application on a party-party basis up to and including 12 February 2014 and on an indemnity basis thereafter.

79. Given that I have confirmed the registrar's order setting aside the statutory demand, I can see no basis for setting aside or varying that costs order, which is accordingly confirmed.

80. Since the College has been entirely successful on appeal, I would start from the assumption that Mr Chen should be ordered to pay the College's costs.

81. The only issue that arose during the appeal that might lead me to give further consideration to the question of costs is the fact that some significant elements of the evidence on which I have relied in reaching my findings about the delivery of the statutory demand might not have been drawn to Mr Chen's attention before the appeal. In particular, some of that information:

(a) was not apparently available to the registrar or Mr Chen when the registrar made his decision;

(b) might not have been available to Mr Chen when he decided to appeal the decision; and

(c) might not have been available even when appeal submissions were written on behalf of Mr Chen.

82. Furthermore, at the end of the hearing before me, counsel for the College indicated that, depending on the outcome of the appeal, the parties might wish to make further submissions about the costs of the appeal by reference to offers of settlement made before the appeal was heard.

83. Accordingly, I shall make no order for the costs of the appeal at this stage, but shall instead set dates for the provision of written submissions by the parties about the costs of the appeal.

84. Mail disruptions that might have caused delay in the delivery of the statutory demand are the risks taken by a person who chooses to serve time-critical documents by post in the lead-up to Christmas. It is not unknown for people to choose to take legal steps in December that will require others to respond during the Christmas/New Year period or into the early part of January, a time when such matters are easily overlooked and when legal advice may be hard to obtain. The value of such a tactic must always be weighed against the risk, as appears to have eventuated here, that it is not only the timing of one's adversary's response that may be affected by the holiday season.

I certify that the preceding eighty-four [84] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.