v Summers Resort Group Pty Ltd [2007] NSWSC 1126 is

instructive. In that case the affidavit of service of the

statutory demand was by the solicitor for the applicant. His

Honour extracts the relevant part of that affidavit of service

The affidavit of service in that case exhibited copies of

letters and other documents which were exhibited to the

affidavit and included specifically a deposition that one of

the exhibited documents was a "Letter that I caused to be sent

by prepaid ordinary post to the plaintiff at its registered

office on 15 August 2007 which enclosed the original of the

document, a true copy of which appears as annexure B to this

At [22] - [24] of his judgment, Barrett J referred to a number

of previous authorities which had considered the proof

necessary and adequate to prove service by post and said:

"Section 109X (1)(a) of the Corporations Act says that a

document may be served on a company by 'posting it to the

company's registered office'. Proof of service of a document

on a company by 'posting it to the company's registered

office' involves proof of the several elements identified by

[2007] SASC 100 (at [6]):

In order to be able to establish service by post upon a

company it is therefore necessary to prove that the

Service by post will not be established unless each of those

[23] To like effect our observations of Brereton J,

in Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd

[2006] NSWC 1216 at [12] concerning service by post:

. Proof that the envelope bore the correct name and

[24] In the present case, there is no direct evidence

about what appeared on the face of the envelope; there is

only evidence of what appeared on the letter of 15 August

2007. Indeed, there is no direct evidence of the existence of

any envelope in that, while it is said in Mr Bailey's

affidavit that the letter was sent by prepaid post, there is

no explicit statement that the letter (and the Annex "B"

documents said to have been enclosed with it) were put into

any envelope. There is no evidence of the amount or value of

any stamp of franking affixed to any such envelope, and there

is no direct evidence that anyone lodged any stamped or

franked envelope (and contents) at any post office or in any

Having made those observations, his Honour found that with the

evidence in that state before him he could not find that the

statutory demand was, as contemplated by section 109X (1)(a),

I am left in a similar state so far as the evidence of service

by post in this matter is concerned. I have already referred

to the only deposition relied on to prove service of the

statutory demand by post. There is no evidence before me of

any of the processes within the applicant's solicitor's office

which could give me any proper basis for concluding that

posting of the documents in question in an envelope addressed

to the registered office of the respondent company actually

occurred. Accordingly, I find that the applicant has not

In those circumstances, the application to wind up the

respondent company fails in limine. There is no basis for the

only contention relied on by the applicant for the winding up

of the respondent, viz, deemed insolvency arising from

non-compliance with the statutory demand in question.

Accordingly the winding up application will be dismissed.

HIS HONOUR: The applicant will pay the respondent's

costs of and incidental to the application including any