Legal principles
18 In Opensoft Australia Pty Limited v Miller Street Pty Limited [2011] FCA 653 Jagot J considered whether an originating process seeking an order setting aside a statutory demand under s 459G had been made in accordance with the requirements of that section. The originating process and affidavit in support had been filed electronically using the Court's eLodgement facility on 11 May 2011 at 4:05:36 PM AEST. However, the copies of those documents that were served did not bear the Court's seal.
19 Having regard to the operation of s 459G of the Corporations Act, the Corporations Rules and the applicable Federal Court Rules, Jagot J noted (at [29]) that the originating process and affidavit in support were accepted for filing by a Registrar of the Court at 4.05 pm on 11 May 2011 and were taken to have been filed on that date. At [30] her Honour identified the issue for resolution, namely whether the requirement for service set out in s 459G(3)(b) of the Corporations Act had been satisfied in circumstances where:
… (i) the statutory demand by Miller Street specified in para 6, as required, an address for service of copies of any application and affidavit to have the demand set aside, (ii) one address so specified in New South Wales was TW Agency, 251 Elizabeth Street, Sydney, New South Wales 2000, (iii) there was delivered to TW Agency at that address copies of the originating process and affidavit in support in the form in which they were lodged for filing, but which did not bear the Court's seal, a proceeding number, or a return date, (iv) on 11 May 2011 there was, against the background of the communications between Mr Price and Mr Daoud described above and set out in their affidavits, an email sent to Mr Daoud attaching copies of the originating process and affidavit in support as filed (that is, bearing the Court seal, proceeding number and return date), and (v) Mr Daoud, on what he described as his computer, opened the attachments and saw them, and also saw that the email had been sent to an email address for Mr Tayles, but (vi) Mr Tayles did not receive that email or its attachments.
20 At [32]-[38] Jagot J surveyed the authorities which stood for the proposition that the requirement in s 459G(3)(b) of the Corporations Act is for a copy of the application and supporting affidavit to be served as filed or, put another way, that s 459G(3(b) requires that a copy of the originating process and supporting affidavit as sealed by the Court, bearing a proceeding number and a return date, be served. It is convenient to set out her Honour's summary of the authorities:
32 In Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 1181 (Benonyx), Santow J in the Supreme Court of New South Wales dealt with a matter in which the application as served on the defendant omitted the return date. Santow J held that this was not service in accordance with s 459G(3)(b), observing (at [6]):
… how can the party who is served have received proper notice of the proceedings for which attendance is required within the twenty-one days when that party is not told of the important fact of the return date of the application to set aside the statutory demand until after the twenty-one days[?]
33 In Chelring Pty Ltd v Coombs [2000] WASC 60, Master Sanderson in the Supreme Court of Western Australia dealt with a matter in which the application as served did not have the action number on the top right-hand corner of the document, did not have the date and time at which the application would be heard, and did not bear the seal of the Supreme Court. Master Sanderson held that the application had not been served in accordance with the requirements of s 459G(3)(b).
34 In LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134, Holmes J of the Supreme Court of Queensland dealt with a matter in which an unsealed copy of an application bearing no return date or file number was faxed on the last day for service. It was held that this was not effective service for the purposes of s 459G(3)(b).
35 In Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2005] 1 Qd R 12; [2004] QSC 308, Chesterman J dealt with a matter in which the application as served did not contain an application number, the date on which the application would be heard, or the seal of the Court. Consistent with the earlier decisions, which Chesterman J reviewed, it was said (at [34]) that those decisions:
… express… a justifiable exposition of s 459G. The copy of the application which the section requires to be served must show that an application has been filed and when the respondent is required to attend and answer it. It will not perform these functions if it is not sealed and does not show the action number allocated by the court. The inclusion of the return date is obviously necessary.
36 Accordingly, there was no effective service in that case.
37 In Accommodation West Pty Ltd v Innis [2009] WASC 337, the application as served did bear an action number, the date of filing and the signature of the principal Registrar. The only thing it lacked was a return date. Master Sanderson, however, reviewed the earlier authorities and (at [7]) said that:
I think all of these cases indicate there must be strict compliance with the requirements of s 459G. In this case, there has not been strict compliance with the requirements of the section and the application to set aside the demand is not properly on foot.
38 Finally, the Supreme Court of Western Australia (Appeal) dealt with the same issue in Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338; [2000] WASCA 409. In that case, the only deficiency in the documents as served was that four pages had been omitted from an annexure to the affidavit in support. The Court held that, as what was required to be served was a copy of the supporting affidavit (including annexures), there had not been compliance with the requirements of s 459G(3)(b).
21 The plaintiff in Opensoft argued that these decisions were wrongly decided. Her Honour rejected that argument. At [41]-[42] Jagot J said:
41 The requirements of s 459G are clear. Section 459G(1) enables an application to be made to a Court to set aside a statutory demand. An application is made to a Court once it has been accepted by that Court. Under s 459G(2), an application may only be made within the 21-day period specified. Section 459G(3) also specifies that an application is made in accordance with s 459G(1) only if within the same 21 days two things occur: namely, an affidavit supporting the application is filed with the Court; and a copy of the application and of the supporting affidavit are served on the person who served the demand on the company. On the ordinary meaning of these provisions, it is difficult to see how the application and supporting affidavit can be other than the application as filed and the supporting affidavit as filed.
42 As a matter of purpose, moreover, compliance with s 459G, as the authorities make clear, requires that the documents as served inform the recipient that the proceeding has in fact been commenced through acceptance by the Court of the originating process. They must also inform the recipient of what Santow J described in Benonyx as the "important fact" of the return date for the application.
22 It followed that delivery of a folder of documents to the defendant's solicitors which did not bear a proceeding number, the Court's seal or the return date of the originating process in that case did not amount to service as required by s 459G(3)(b).
23 Since Opensoft there have been further decisions which consider the construction and operation of s 459G of the Corporations Act. I was taken to a selection of those decisions.
24 In PCM Nominees (WA) Pty Ltd v ACN 063 291 430 Pty Ltd [2017] FCA 848 McKerracher J considered whether an application to set aside a statutory demand should be dismissed for want of jurisdiction because the plaintiff had not satisfied the requirements of s 459G of the Corporations Act. The application to set aside the demand and affidavit that were served within the 21 day period did not bear the Court's seal, the Registrar's signature or any Court stamp, the Court proceeding number or the return date for the application, which the defendant argued were all required by s 459G(3)(b).
25 At [34] McKerracher J observed that s 459G defines the jurisdiction of a court in its imposition of the 21 day requirement as an essential condition to an application to set aside a statutory demand, referring to David Grant & Co Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265. His Honour noted that it was common ground that the application to set aside the statutory demand was filed within the 21 day time limit but went on to observe that it was not "in any formal sense, served within time".
26 At [41] McKerracher J said that he was bound to follow the approach taken in Rochester Communications Group Pty Ltd v Lader Pty Ltd (1997) 143 ALR 648 in which filing was within time but service was not effected at the correct address on the corporate defendant. His Honour continued:
Noting that strict compliance with the time limits was required so that all involved will know where they stand at the expiration of 21 days after service of the demand, Beaumont J noted in Rochester (at 670):
If the Court were to have a largely unregulated discretion to validate defective service, at any time after that period, this would run the risk, in my view, of undermining a central element of the new statutory scheme [referring to the scheme of Pt 5.4 of the Act].
27 At [43] McKerracher J concluded that service of the plaintiff's application was defective.
28 In CPR Solutions v Zammit Earthmoving Pty Ltd (2020) 4 QR 624 on 17 March 2020 the applicant filed an application to set aside a statutory demand within the 21 day period prescribed by s 459G of the Corporations Act by delivering it and the supporting affidavit to the Supreme Court of Queensland's Mackay registry. At the time the application was date and receipt stamped and the applicant's solicitors were provided with a Queensland Courts official receipt for the filing fee with the name of the matter. A sealed copy of the application was not made available until 6 April 2020. In the meantime, on the 21st day, the applicant served a copy of the unsigned application by email without a date stamp or receipt stamp and without a return date but with a copy of the court receipt. The respondent disputed the validity of service of the application.
29 In dismissing the application, at [64] Crow J said:
The purpose of s 459G(3)(b) Corporations Act 2001 (Cth) is to ensure that a person who was served a statutory demand was provided with notice of an application to set aside the statutory demand, and this is to be achieved by providing a "copy of the application". In the present case, the registrar did not return a service copy to the applicant or issue a copy of the application. Whilst it is not necessary for the document served to be "an exact replica", the document served was different from the document filed as it omitted the date of filing stamp and the receipt stamp. As the document did not have a matter number, a court seal, a registrar's signature or a return date, the only indication on the document that it had been filed in the registry was the inclusion of the date and receipt stamps. Absent the date and receipt stamps there was nothing on the document to show that it had been filed and that curial proceedings had commenced. Although, the service of the court receipt provided the same information, that is not the test. The test is simply whether the document that was served was a sufficient copy of what was filed for the purpose of s 459G(3) Corporations Act 2001 (Cth). The document which was served was not a sufficient copy as it omitted the date stamp and the receipt stamp, which were the only indication that the application had in fact been filed and a curial proceedings had commenced.
(Footnote omitted.)
30 In the course of his Honour's reasoning in CPR Solutions Crow J referred to Craneford Nominees Pty Ltd v VGC Co-Operative Ltd (2012) 262 FLR 283; [2012] SASC 74, a decision on which the plaintiffs place some reliance. In Craneford the question before the Court was whether the document which had been served within the prescribed 21 day period was a "copy of the application" within the meaning of s 459G(3)(b) of the Corporations Act. Relevantly, the application that was served included the action number and the Supreme Court of South Australia's "received" stamp. It did not include the court's seal or the Registrar's signature.
31 At [14] Stanley J observed that at issue "was a question of statutory construction", namely the meaning of the expression "a copy of the application" in s 459G(3)(b) of the Corporations Act. At [16]-[19] Stanley J identified the policy and purpose of the section and, having done so, observed that "[i]dentification of Parliament's purpose in imposing the requirement for service of a copy of the application and the supporting affidavit on the person who served the statutory demand, does not require that the copy of the application required to be served pursuant to s 459G(3)(b) is in all respects an exact copy of the application filed in the court": at [19]. At [21] Stanley J concluded that:
An analysis of the authorities demonstrates that a document will satisfy the definition of a "copy of the application" where:
(1) the copy document reflects the form of the originating process accepted by the court within the 21 day period;
(2) the copy document evidences the fact of the court's acceptance, and hence, the fact that proceedings have been commenced, by some mark, whether it is the seal of the court, the Registrar's signature, or some other authenticating mark such as the court stamp or action number; and
(3) the copy document records the important fact of the return date of the application.
32 Justice Stanley found that the action number and court's "received stamp" appearing on the application that was served evidenced the authenticity of the document as a copy of the application accepted by the court for filing, even in the absence of the court's seal or the Registrar's signature. His Honour found that in all other respects the application that was served met the test set out at [21] of his Honour's reasons (see above). Accordingly, the copy application served was a sufficient copy of the application to satisfy s 459G(3)(b) of the Act: Craneford at [26]-[28].