Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd

Supreme Court of NSW|2023-11-02|Before: Williams J

Introduction

By originating process filed on 26 September 2023, the plaintiff company seeks an order pursuant to ss 459G and 459H of the Corporations Act 2001 (Cth) that "the Creditor's Statutory Demand For Payment of Debt dated 5 September 2023, served on the Plaintiff by the Defendant pursuant to section 459E of the Act, be set aside".
The defendant sent the statutory demand to an email address used by one of the plaintiff's two directors on 5 September 2023. There is a dispute between the parties about whether this email address had been nominated as the email address of the plaintiff.
The plaintiff's solicitors sent the originating process, the supporting affidavit of one of the directors of the company, and a link to the exhibit to that affidavit, to the defendant by email on 28 September 2023.
These reasons address the following two questions that the Court ordered to be determined separately and prior to all other issues in the proceedings: "(1) whether the creditor's statutory demand was served for the purposes of s 600G of the Corporations Act 2001 (Cth), having regard to the definition of "nominated electronic address" in s 9 of the Act, or by way of informal effective service; and (2) whether, if the demand was served, the application to set it aside was filed and served within 21 days."
For the reasons explained below, I have determined in relation to question one that the statutory demand was served by electronic communication to the plaintiff's nominated electronic address in accordance with s 600G of the Corporations Act on 5 September 2023.
For the reasons explained below, I have determined that question two must be answered in the negative. It follows that the Court has no jurisdiction to entertain the plaintiff's application for an order setting aside the statutory demand, and the proceedings must be dismissed.

Summary of relevant evidence

Mr Karl Salau and Ms Michelle Salau are the two directors and shareholders of the plaintiff, Stamford Bridge SW6 Pty Ltd (the Company). Mr Salau is also the secretary of the Company.
Mr Salau gave evidence that he and Ms Salau incorporated the Company for the sole purpose of a property development project at 22 Ney Street, Mascot in New South Wales, and that the Company conducts no other business. The Company has tendered copies of building contracts that it entered into (as owner) for the construction of two homes on that property (the Mascot property and the Mascot project).
At all times relevant to these proceedings, the Company's registered office has been the address of its accountants, Wizdom Accounting, at Unit 11, 26 Balook Drive, Beresfield, New South Wales 2322.
Harrington Lawyers are the solicitors on the record for the Company in these proceedings. Mr Thomas Williams is one of the solicitors at Harrington Lawyers who has the day-to-day conduct of the proceedings.
Mr Paul Cox is the defendant in these proceedings. The Company engaged Mr Cox to carry out certain work in relation to the Mascot project in about July 2022. At that time, there were disputes between the Company and its builder in relation to the builder's payment claims and alleged defects in the building works. Mr Wlodek Kozlowski, solicitor, was acting for the Company in relation to those disputes. On behalf of the Company, Mr Kozlowski engaged Mr Cox to prepare an expert report to be used in proceedings that were then on foot between the Company and the builder.
As referred to in more detail below, Mr Cox issued an invoice to the Company in March 2023 for his work performed at the Mascot property. The Company responded by issuing a payment schedule under the Building and Construction Industry Security of Payment Act 1999 (NSW). Mr Cox made an adjudication application under that Act, which resulted in a determination in favour of Mr Cox in the sum of $85,190.
Adjudicate Today Pty Ltd (Adjudicate Today) wrote to Mr Cox and to the Company enclosing the adjudicator's determination on 23 June 2023. The covering letter was addressed to: "TO: Paul Cox Attn: Paul Cox paulcox1970@live.com TO: Harrington Lawyers Attn: Karl Abboud kabboud@harringtonlawyers.com.au TO: Stamford Bridge SW6 Pty Ltd Attn: Karl Salau karl.salau@gmail.com"
I infer that the Company had nominated Mr Salau's gmail address referred to above as an electronic address to which Adjudicate Today could direct communications concerning the adjudication of the dispute between Mr Cox and the Company.
Judgment for the adjudicated sum of $85,190 was entered in favour of Mr Cox in the Local Court of New South Wales on 28 August 2023.
On 5 September 2023, Mr Cox issued a statutory demand to the Company in respect of that judgment debt. At 11:23am on 5 September 2023, Mr Cox sent an email from his live.com email address to Mr Salau's gmail address referred to above. Mr Cox's email stated: "Stamford Bridge SW6 Pty Ltd Attention: Mr. Karl Salau Email: karl.salau@gmail.com Registered Business Address: C/- Wizdom Accounting, Unit 11, 26 Balook Drive, BERESFIELD NSW 2232 Re: Statutory Demand Sydney Local Court on 28 August 2023 in proceedings 2023/00271393 I enclose by way of service upon you a demand under Section 459E Corporations Act 2001 (statutory demand). I confirm service of hardcopy to registered business pursuant to Section 109X of the Corporations Act 2001 and service by email. Paul Cox"
A copy of the statutory demand, together with a sealed copy of the Local Court judgment, was attached to Mr Cox's email.
Although Mr Cox's email stated that the statutory demand would also be served in the manner permitted by s 109X of the Corporations Act, that did not occur. In these proceedings, Mr Cox relies on the 5 September 2023 email as the sole means by which the statutory demand was served on the Company.
Mr Cox gave evidence that he sent the statutory demand to Mr Salau's gmail address because that is the electronic address that "I know Karl Salau, the director of Stamford Bridge, uses as the email address to receive and send emails for the plaintiff company". When he was first engaged to prepare the expert report, Mr Cox was provided with documents that included the builder's adjudication applications under the Building and Construction Industry Security of Payment Act, the Company's responses, and communications between the Company and Adjudicate Today, which Mr Cox understood was the authority with which the builder's adjudication application had been lodged. Mr Cox noted that correspondence between the Company and Adjudicate Today nominated Mr Salau's gmail address as the email contact details for the Company.
Mr Cox also gave evidence that Mr Kozlowski instructed him in about late July 2022 to send his preliminary observations about the builder's work to the Company at Mr Salau's gmail address. Mr Cox tendered an email that he sent from his live.com email address to Mr Salau's gmail address on Tuesday, 2 August 2022, setting out Mr Cox's assessment of the works constructed by the builder at the Mascot property. Mr Cox deposed that he did not receive any reply to that email indicating that the email to Mr Salau's gmail address had not been delivered or was not successfully transmitted. Nor did he receive any reply indicating that Mr Salau or the Company objected to email correspondence intended for the Company being directed to Mr Salau's gmail address.
Mr Cox gave evidence that he was informed in about mid to late September 2022 that the Company had appointed Passiv Haus Projects Pty Ltd (Passiv Haus Projects) as the principal contractor for the Mascot project. Some time later, Mr Kozlowski provided Mr Cox with a copy of the contracts between the Company and Passiv Haus Projects. Each contract names the Company as the owner of the property and specifies Mr Salau's gmail address as the email address for the Company.
Mr Cox gave evidence that he sent all of his email correspondence with the Company to Mr Salau's gmail address. He never received a reply indicating that he should not direct emails intended for the Company to that email address. Nor did Mr Salau, with whom he spoke frequently at the Mascot property, ever tell him that he should not use his gmail address to send emails to the Company.
Mr Cox tendered an email sent from his live.com email address to Mr Salau's gmail address on Sunday, 12 March 2023 to which Mr Cox attached his invoice for work relating to the Mascot property. In the email, Mr Cox stated that he had supported the Company as far as he could without payment, and that he hoped that his invoice would be paid promptly. Mr Cox also stated that he was open to negotiating a settlement for faster payment. Mr Cox also tendered the reply to his email, which was sent from Mr Salau's gmail address on Friday, 17 March 2023. Mr Salau's reply stated that he had tried unsuccessfully to contact Mr Cox by phone a few times that week, and suggested that they "meet to discuss this weekend to reach an agreement".
Mr Cox tendered an email that he received at his live.com email address from Mr Salau's gmail address on 24 March 2023. The email states: "Dear Mr Cox, Please find attached a payment schedule in response to your invoice dated 12 March 2023. Regards, Karl Salau Director Stamford Bridge SW6 Pty Ltd"
As I have already mentioned, Mr Cox issued the statutory demand to the Company on 5 September 2023 and sent a copy of it to Mr Salau's gmail address that day.
In his affidavit sworn on 26 September 2023 in support of the application filed by the Company on that date to set aside the statutory demand, Mr Salau gave evidence that he had reviewed the statutory demand dated 5 September 2023 issued by Mr Cox against the Company. In that affidavit, Mr Salau made no mention of when the statutory demand had first been received in his gmail account inbox, or when it had first come to his attention.
In his subsequent affidavit sworn on 20 October 2023, Mr Salau deposed that he first became aware of the statutory demand on 7 September 2023 when he reviewed his gmail account and saw an email from Mr Kozlowski dated 6 September 2023 which referred to and attached a copy of the statutory demand that Mr Cox had issued on 5 September 2023. Mr Kozlowski's email stated: "Karl, I attach statutory demand issued by Paul Cox pursuant to a judgment debt. I understand that your new lawyers are canvassing experts and others for some new scam you are trying to run. I do not see how any one will risk work for Stamford when it is trading insolvent and can't pay out judgment debts. Pay your debts before the whole development is wound up. Wlodek"
Mr Kozlowski had previously acted as a solicitor for the Company, but was no longer acting in that capacity by 7 September 2023. Mr Salau gave evidence that he was uncertain why Mr Kozlowski had sent him a copy of the statutory demand issued by Mr Cox. As Mr Cox submitted, Mr Kozlowski's email does not purport to serve Mr Cox's statutory demand on the Company. According to Mr Salau's evidence, receipt of Mr Kozlowski's email prompted Mr Salau to seek legal advice from Harrington Lawyers.
Mr Cox's 5 September 2023 email referred to at [16] above was exhibited to Mr Cox's affidavit sworn on 10 October 2023, to which Mr Salau replied in his affidavit sworn on 20 October 2023. In that affidavit, Mr Salau did not deny that Mr Cox's 5 September 2023 email had been received in the inbox of Mr Salau's gmail account on 5 September 2023. Mr Salau's 20 October 2023 affidavit simply did not mention Mr Cox's 5 September 2023 email.
On 25 September 2023, Mr Williams sent an email to Mr Cox advising that Harrington Lawyers acted for the Company, and stating: "We confirm receipt of the Statutory Demand dated 5 September 2023, copy attached. Our client was forwarded a copy of the Statutory Demand received by email. This does not represent service in accordance with the rules of the Court. …"
Mr Williams' email asked how and when Mr Cox claimed to have served the statutory demand on the Company, and advised that the Company intended to file an application to set aside the statutory demand.
Mr Cox did not reply to Mr Williams' email before the Company filed an originating process in this Court on 26 September 2023 seeking orders under ss 459G and 459H of the Corporations Act setting aside "a Creditors Statutory Demand for Payment of Debt dated 5 September 2023 and served pursuant to s 459E of the Act". Mr Salau swore an affidavit in support of the originating process that was also filed on that date. The Company contends that there is a genuine dispute about the existence or amount of the debt that is the subject of the statutory demand.
At 10:08am on 28 September 2023, Mr Williams of Harrington Lawyers sent an email to Mr Cox at his live.com email address. The email attached a copy of the originating process and Mr Salau's affidavit sworn on 26 September 2023, and contained a dropbox link to the exhibit to Mr Salau's affidavit. The originating process sought an order pursuant to ss 459G and 459H of the Corporations Act setting aside the statutory demand dated 5 September 2023 "served on the Plaintiff by the Defendant pursuant to section 459E of the Act".
Mr Williams' email stated that Harrington Lawyers would arrange for the originating process and supporting documents to be served on Mr Cox's address for service specified in the statutory demand, which was an address in Hammondville, New South Wales. That did not occur. In these proceedings, the Company does not claim to have served the originating process and supporting affidavit of Mr Salau on Mr Cox by any means other than by the email sent to Mr Cox on 28 September 2023.
Mr Cox acknowledges that he received the 28 September 2023 email from Mr Williams on that date. Indeed, Mr Cox replied to the email at 1:44pm on 28 September 2023 stating that he had not consented to electronic service pursuant to rule 3.7 of the Uniform Civil Procedure Rules 2005 (NSW), and that, in his view, the application was out of time and service had not been effected.
Mr Williams replied to Mr Cox's email at 10:43am on 5 October 2023, stating that the Company had no record of the statutory demand being served at its registered office in accordance with s 109X of the Corporations Act, and that it was therefore the Company's position that it had not been served with the statutory demand. Mr Williams stated that: "Notwithstanding that service has not occurred, we are instructed to proceed with our client's application to set aside your Statutory Demand…".
Mr Cox replied to Mr Williams by email at 11:43am on 5 October 2023 stating, amongst other things, that the originating process that the Company had filed with the Court admitted that the statutory demand had been served on the Company.
As I have already mentioned, Mr Salau's affidavit sworn on 26 September 2023 in support of the Company's application to set aside the statutory demand did not touch on any matter concerning the timing or manner of service of the statutory demand.
In his subsequent affidavit sworn on 20 October 2023, Mr Salau deposed that the gmail address to which Mr Cox sent the 5 September 2023 email attaching the statutory demand is Mr Salau's "personal email address" that he uses "for things such as online shopping, receiving bills relating to my personal assets and also as a means to communicate with my friends and family members". Mr Salau has given evidence that he is the only person who has access to his gmail account, and that he accesses and reviews that account between one and two times per week on average.
In his affidavit sworn on 20 October 2023, Mr Salau also deposed that neither he nor Ms Salau established or nominated an email address for the Company when they incorporated the Company as the vehicle to undertake the Mascot project. According to Mr Salau, the Company did not have an email address, and no email address had been nominated on behalf of the Company, as at 5 September 2023. Mr Salau deposed that: "At no time have I represented to a third party, nor have I nominated my Personal Email account as the address for receiving electronic communications on behalf of the Plaintiff nor for the purpose of communicating in my capacity as Director of the Plaintiff."

Issues for determination

As stated at the outset of these reasons, the Court has ordered that the following questions be determined separately and prior to all other questions in the proceedings: "(1) whether the creditor's statutory demand was served for the purposes of s 600G of the Corporations Act 2001 (Cth), having regard to the definition of "nominated electronic address" in s 9 of the Act, or by way of informal effective service; and (2) whether, if the demand was served, the application to set it aside was filed and served within 21 days."

Applicable legislation and legal principles

Except where indicated to the contrary, the terms of the legislative provisions referred to below are the terms of those provisions as they applied at the times relevant to these proceedings.
Chapter 5 of the Corporations Act is entitled "External administration".
Chapter 5 includes Part 5.4, which is entitled "Winding up in insolvency".
Division 1 of Part 5.4 of Chapter 5 is entitled "When company to be wound up in insolvency". Sections 459A and 459B in in Division 1 provide that the Court may order that the company be wound up in insolvency on an application under ss 234, 459P, 462 or 464 of the Corporations Act. Section 459C provides that, for the purpose of a winding up application under any of those sections, the Court must presume that the company is insolvent in specified circumstances, including where the company has failed to comply with a statutory demand during the period of three months prior to the filing of the winding up application, or after the filing of the winding up application.
Division 2 of Part 5.4 of Chapter 5 is entitled "Statutory demand". Section 459E(1) in Division 2 provides that a person may serve on a company a demand relating to a debt or debts that the company owes to the person, that are due and payable and whose amounts total at least the statutory minimum. Section 459E(2) sets out certain information that must be set out in the statutory demand, and requires the demand to be in the prescribed form. The prescribed form requires the creditor issuing the demand to specify the address of the creditor for service of copies of any application to set aside the statutory demand and supporting affidavit.
Section 459G in Division 3 of Part 5.4 provides: "(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 the statutory period after the demand is so served. (3) An application is made in accordance with this section only if, within that period: (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."
Section 109X of the Corporations Act relevantly provides: "(1) For the purpose 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 (b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or … (6) This section does not affect: (a) any other provision of this Act, or any provision of another law, that permits; or (b) the power of a court to authorise; a document to be served in a different way. (7) This section applies to provisions of a law dealing with service whether it uses the expression 'serve' or uses any other similar expression such as 'give' or 'send'."
As at 5 September 2023, s 600G of the Corporations Act relevantly provided: "(1) Subject to subsection (7), this section applies to any document that is: (a) required or permitted to be given to a person (the recipient); or (b) required to be signed by a person; under: (c) this Chapter; or (d) an instrument made for the purposes of a provision of this Chapter; or (e) a provision relating to the external administration of a company that: (i) is a provision of Chapter 10; or (ii) is a provision of an instrument made for the purposes of a provision of Chapter 10; or (iii) is continued in effect by a provision of Chapter 10; or (iv) is a provision of an instrument made for the purposes of a provision that is continued in effect by a provision of Chapter 10; or (f) Schedule 2; or (g) an instrument made for the purposes of a provision of Schedule 2. Giving a document (2) The document may be given to the recipient by means of an electronic communication. (3) The document may be given by giving the recipient (by means of an electronic communication or otherwise) sufficient information to allow the recipient to access the document electronically. (4) However, an electronic communication or electronic access may only be used if, at the time the electronic communication is used or information about the electronic access is given: (a) it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference; and (b) there is a nominated electronic address in relation to the recipient. …"
The reference to "this Chapter" in s 600G(1)(c) was a reference to Chapter 5 of the Corporations Act, which includes Part 5.4 in which ss 459E and 459G are found.
The expression "nominated electronic address" is defined in s 9 of the Corporations Act as meaning: "(a) the most recent electronic address nominated by the addressee to the originator of the electronic communication as the electronic address for receiving electronic communications; or (b) if: (i) the addressee has nominated an electronic address as mentioned in paragraph (a) and the originator knows, or there are reasonable grounds to believe, that the address is not a current electronic address for the addressee; or (ii) the addressee has not nominated an electronic address as mentioned in paragraph (a); an electronic address that the originator believes on reasonable grounds to be a current electronic address for the addressee for receiving electronic communications."
Section 105A of the Corporations Act makes provision for the time at which an electronic communication is sent, and the time at which it is received. Section 105A relevantly provides: "(1) This section applies in relation to an electronic communication unless otherwise agreed between the originator and the addressee of the electronic communication. … (4) An electronic communication is received when the electronic communication becomes capable of being retrieved by the addressee at the addressee's nominated electronic address. (5) It is to be assumed that an electronic communication is capable of being retrieved by the addressee when it reaches the addressee's nominated electronic address. (6) Subsection (4) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 105B."
Section 105B makes provision for the place from which an electronic communication is taken to be sent, and the place at which it is taken to be received. Section 105B relevantly provides: "(1) This section applies in relation to an electronic communication unless otherwise agreed between the originator and the addressee of the electronic communication. … (3) An electronic communication is taken to have been received: (a) if the originator is a company or registered scheme and the addressee is a member of the company or registered scheme - at the address of the addressee as contained on the register of members of the company or registered scheme at the time the communication is received; and (b) if the addressee has a registered office and paragraph (a) does not apply - at the registered office of the addressee; and (ba) if the addressee has a principal place of business in Australia and neither paragraph (a) nor (b) applies - the address of the addressee's principal place of business in Australia; and (c) otherwise: (i) at the most recent physical address nominated by the addressee to the originator; or (ii) if the addressee has not nominated a physical address as mentioned in subparagraph (i) - at the addressee's usual residential address in Australia."
Section 600G was repealed by the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023 (Cth) [1] with effect from 15 September 2023. Neither that legislation, nor any subsequent legislation, has repealed or amended ss 105A and 105B or the definition of "nominated electronic address" in s 9 of the Corporations Act.

Consideration and determination

I have considered all of the parties' written and oral submissions in relation to the questions for separate determination. I have not found it necessary to expressly refer to every aspect of those submissions in order to explain my reasons for answering question one in terms that the statutory demand was served by electronic communication to the plaintiff's nominated electronic address in accordance with s 600G of the Corporations Act on 5 September 2023, and for answering question two in the negative.

Question 1

I reject the Company's submission that, as at 5 September 2023, it had not nominated any email address for the Company to receive electronic communications. I reject Mr Salau's evidence referred to at [40] above, which is wholly inconsistent with the contemporaneous documentary evidence referred to at [13]-[14] and [20]-[24] above. I find that, by the emails sent to Mr Cox by Mr Salau on behalf of the Company from Mr Salau's gmail address on 17 and 24 March 2023 referred to at [23] and [24] above, the Company nominated Mr Salau's gmail address to Mr Cox as the electronic address for the Company to receive electronic communications. I accept Mr Cox's evidence referred to at [22] above that Mr Salau never communicated to him that, notwithstanding Mr Salau's use of his gmail address to send emails on behalf of the Company, his gmail address was not an address at which the Company would receive emails. That aspect of Mr Cox's evidence is consistent with the Company's conduct in expressly nominating Mr Salau's gmail address as the address for electronic communications to the Company concerning the adjudications under the Building and Construction Industry Security of Payment Act, [2] and the Company's contract with Passiv Haus Projects in relation to the Mascot project. [3] For those reasons, I find that Mr Salau's gmail address was the Company's "nominated electronic address" within the meaning of paragraph (a) of the definition of that term in s 9 of the Corporations Act.
If I had not been satisfied that the Company had nominated Mr Salau's gmail address to Mr Cox, I would have held on the basis of all of the evidence referred to immediately above that Mr Salau's gmail address was an electronic address that Mr Cox believed on reasonable grounds as at 5 September 2023 to be a current electronic address for the Company for receiving electronic communications. Accordingly, I would have held that Mr Salau's gmail address was the Company's "nominated electronic address" within the meaning of paragraph (b) of the definition of that term in s 9 of the Corporations Act.
I accept Mr Cox's submission that, as at 5 September 2023, s 600G of the Corporations Act permitted a statutory demand to be served by means of electronic communication, provided that the requirements of s 600G(4) were satisfied. Section 459E permits a person to "serve" a statutory demand on a company. As Cheeseman J stated in In the matter of Bioaction Pty Ltd (2022) 402 ALR 542; [2022] FCA 436 (Bioaction), and as Derrington J stated in Sandys Swim Pty Ltd v Morgan [2022] FCA 1574 (Sandys Swim), the word "document" is defined in very wide terms in s 9 of the Corporations Act. A statutory demand is a document that is permitted to be "given" to a person under Chapter 5 of the Corporations Act within the meaning of s 600G(1). I respectfully agree with Cheeseman J, for the reasons given by her Honour in Bioaction, that the expression "required or permitted to be given" in s 600G includes documents that are required or permitted to be "served". It follows that s 600G facilitates service of a statutory demand by electronic communication, subject to the requirements of s 600G(4), as Derrington J held in Sandys Swim. I respectfully agree with that conclusion reached by her Honour. [4]
That construction of s 600G is not inconsistent with s 109X of the Corporations Act or s 28A of the Acts Interpretation Act 1901 (Cth), which also applied as at 5 September 2023. As Cheeseman J explained in Bioaction, those provisions are facultative, not mandatory. Other means of service may be adopted. [5] As at 5 September 2023, s 600G provided for one such other means of service: electronic communication to a nominated electronic address in the circumstances stipulated in s 600G(4).
As Cheeseman J observed in Bioaction, and as Derrington J observed in Sandys Swim, s 600G(4) provides that electronic communication may only be used if, at the time of the communication, it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference, and if there is a nominated electronic address for the recipient. [6]
In this case, it is plain from the terms of Mr Cox's 5 September 2023 email set out at [16] above, and from the statutory demand attached to that email, that the Company is the addressee and recipient of the email. I have determined for the reasons explained above that, as at 5 September 2023, Mr Salau's gmail address was a nominated electronic address for the Company within the meaning of that term as defined in s 9 of the Corporations Act. The requirements of s 600G(4)(b) were therefore satisfied.
Taking into account that gmail is a well-known provider of email services, and having regard to the history of the Company using Mr Salau's gmail address as its address to receive electronic communications referred to at [13]-[14] and [20]-[24] above, it was reasonable to expect as at 5 September 2023 that the "document" (that is, Mr Cox's email and the attached statutory demand) would be readily accessible by the Company through Mr Salau's gmail account so as to be useable for subsequent reference. The requirements of s 600G(4)(a) were therefore also satisfied.
The copy of Mr Cox's 5 September 2023 email that was exhibited to Mr Cox's affidavit affirmed on 10 October 2023 records that it was sent at 11:23am on that date. [7] Pursuant to s 161 of the Evidence Act 1995 (NSW), it is presumed that the email was sent in the form of the document that is exhibited to Mr Cox's affidavit, and that it was sent by Mr Cox on 5 September 2023 at 11:23am. No evidence adduced in these proceedings raises any doubt about either of those presumptions. I infer that the email arrived in the inbox of Mr Salau's gmail address, and was capable of being retrieved from Mr Salau's gmail account (including the attachment to the email) on 5 September 2023. I draw that inference because it is inherently probable that the email, together with its attachments, reached Mr Salau's gmail account inbox within a reasonably short time after it was sent at 11:23am on 5 September 2023. I do so more comfortably in the absence of any evidence from Mr Salau denying that he received Mr Cox's 5 September 2023 email. [8] Mr Salau gave evidence on behalf of the Company. On his own evidence, he is the person who operates the gmail account that is in his name. If Mr Cox's 5 September 2023 email, a copy of which was exhibited to Mr Cox's 10 October 2023 affidavit, had not been received in Mr Salau's gmail inbox on 5 September 2023, Mr Salau's evidence about that fact would have been relevant and helpful to the Company in these proceedings. Mr Salau's failure to give any evidence about whether or not Mr Cox's email was received on 5 September 2023 gives rise to an inference that any evidence that he could have given about that matter would not have assisted the Company: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 (Handley JA). There being no evidence of any agreement to the contrary between Mr Cox and the Company, the effect of s 105A(4)-(6) of the Corporations Act is that Mr Cox's email sent on 5 September 2023 is taken to have been received on 5 September 2023. As Cheeseman J observed in Bioaction, [9] and as Derrington J observed in Sandys Swim, [10] proof of effective service by electronic communication under s 600G of the Corporations Act does not require proof that the documents were actually accessed or reviewed by the addressee, or even came to the attention of the addressee or anyone else. What matters is that they could have been accessed had the addressee sought to do so. I reject the Company's submission that the statutory demand was first served on 7 September 2023, when Mr Salau downloaded the copy of the demand attached to Mr Kozlowski's email referred to at [27]-[28] above.
For all of those reasons, I have determined that Mr Cox served the creditor's statutory demand on the Company by electronic communication in accordance with s 600G of the Corporations Act on 5 September 2023. I have not found it necessary to address Mr Cox's contention that the originating application filed by the Company in these proceedings admitted that the statutory demand had been served on the Company.

Question 2

The Company bears the onus of establishing that its application to set aside the statutory demand, together with an affidavit in support of that application, was filed and served within the 21-day statutory period after service of the demand on 5 September 2023, as required by s 459G of the Corporations Act: Sandys Swim at [48]. The last day of that statutory period was 26 September 2023.
The Company has failed to discharge that onus. As referred to at [33]-[34] above, 28 September 2023 is the earliest date on which the s 459G application and supporting affidavit of Mr Salau affirmed on 26 September 2023 were served, or purportedly served, on Mr Cox. I accept Mr Cox's submission that the application and supporting affidavit were therefore served after the expiry of the 21-day statutory period.
It is not necessary to address the parties' competing contentions about whether the 28 September 2023 email could constitute effective informal service of the application and supporting affidavit after the repeal of s 600G with effect from 15 September 2023. Nor is it necessary to address Mr Cox's contentions that Mr Salau's affidavit was not effectively served on 28 September 2023 because the exhibit to the affidavit was given to Mr Cox only via an electronic link. The point is that 28 September 2023 was outside the 21-day statutory period under s 459G of the Corporations Act.
For those reasons, I have determined that question two must be answered in the negative.
It follows that there is no application before the Court that has been made in accordance with s 459G of the Corporations Act, and the proceedings must be dismissed.

Conclusion and orders

For all of the reasons above, the orders of the Court are: Order that the questions ordered to be decided separately and prior to all other issues in these proceedings be determined as follows: Question: "Whether the creditor's statutory demand was served for the purposes of s 600G of the Corporations Act 2001 (Cth), having regard to the definition of "nominated electronic address" in s 9 of the Act, or by way of informal effective service." Answer: Yes. The creditor's statutory demand was served by electronic communication to the plaintiff's nominated electronic address in accordance with s 600G of the Corporations Act 2001 (Cth) on 5 September 2023. Question: "Whether, if the demand was served, the application to set it aside was filed and served within 21 days." Answer: No. 1. Proceedings dismissed. 2. Direct that the exhibits and documents marked for identification be returned to the parties.
I will hear the parties in relation to costs.

Endnotes

Schedule 1, clause 37.
See [13]-[14] and [19] above.
See [21] above.
Bioaction at [74]-[87]; Sandys Swim at [20]-[36].
Bioaction at [38]-[39]; see also Sandys Swim at [28].
Bioaction at [51]; Sandys Swim at [37]-[38].
See [16] above.
See [26]-[29] above.
Bioaction at [95].
Sandys Swim at [41]. 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: 30 April 2024

Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023(Cth)

Corporations Act 2001(Cth)ss 9, 105A, 105B, 109X, 459A, 459B, 459C, 459E, 459G, 459H, 600G

At a glance

Court

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Judgment (9 paragraphs)

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Legislation Cited (6)

Cases Cited (4)