When Were the Demetrious' Statutory Demands Served?
44 Mrs Ashley and the Demetrious submitted that the Statutory Demands had all been served at the registered office of Gusdote and Madeas by no later than 30 December 2009. They submitted that I should find that this was so as a matter of fact or, alternatively, that I should make this finding by reason of the combined presumptive and deeming effect of s 160 of the Evidence Act 1995 (Cth) (the Evidence Act) and s 29 of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act). They accepted that the proceedings commenced by each of Gusdote and Madeas against Mrs Ashley (both of which were commenced on 19 January 2010) had been commenced within time. However, as I have already mentioned at [36] and [41] above, Mr and Mrs Demetriou argued that the proceedings commenced by Gusdote against Mr Demetriou and by Madeas against Mrs Demetriou were both out of time. Those proceedings were not commenced until 22 January 2010. If, as the Demetrious contended, their Statutory Demands were served by no later than 30 December 2009, the proceedings against them were commenced outside the time limited by s 459G(2) of the Act. The Demetrious would still succeed in their argument if I were to find that the Demands were served by no later than 31 December 2009. In order for the time requirement laid down in s 459G(2) of the Act to be met in the present case, the Court would have to be satisfied that the Demetriou Statutory Demands had not been served any earlier than 1 January 2010 (see s 105 of the Act and semble s 36 of the Acts Interpretation Act). It was, of course, the case of both Gusdote and Madeas that the Demands were all served on 1 January 2010 (and not before).
45 Uncontested evidence was led on behalf of Mr and Mrs Demetriou that all four Statutory Demands were posted into the Australia Post street post box located on Chapel Road Bankstown at or about 5.00 pm on Wednesday 23 December 2009. Each Statutory Demand was in a separate envelope. A 55c postage stamp was affixed to each envelope. That was the correct postage. The items were, therefore, prepaid. Each envelope was addressed, as appropriate, either to Gusdote or Madeas at 569 Ross River Road, Kirwan, QLD 4817. That address was the address of the registered office of both Gusdote and Madeas as at 23 December 2009 as disclosed in the records of the Australian Securities and Investments Commission. That address is the business address of Hunter Partners, who are the accountants for both Gusdote and Madeas. There were no covering letters sent with the Statutory Demands.
46 Posting the Statutory Demands in this way was a permitted mode of service under the Act (see s 109X(1) of the Act). Section 109X(1) of the Act specifies the manner by which service of documents may be effected on a corporation but does not address the question of when service is effected or deemed to be effected in the event that one of the statutorily endorsed methods of service is adopted. The time at which service is effected in any particular case is a question of fact.
47 In determining the date or time when a Creditor's Statutory Demand sent to a corporation by post is served, the relevant fact which needs to be established is: When was the Demand delivered to the registered office of the corporation by or on behalf of the postal service (ie by or on behalf of Australia Post)? This fact can be established by direct evidence. For example, the relevant delivery officer employed or retained by Australia Post can be called to testify as to the date when the item was actually delivered to the registered office. It may be established by less direct evidence and also by proving circumstances from which appropriate inferences might be drawn.
48 Proof of the ultimate fact is also assisted by two statutory provisions.
49 Section 29 of the Acts Interpretation Act provides:
29 Meaning of service by post
(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 unless the contrary intention appears 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.
50 In the present case, all four of the Statutory Demands were "… properly addressed [to the registered office of Gusdote and Madeas]" and were "… prepaid and posted as a letter…". Therefore, by the operation of s 29 of the Acts Interpretation Act and s 109X of the Act, unless the contrary intention appears, service is deemed to have been effected. That is to say, delivery to the registered office is deemed to have been effected. No contrary intention appears in the Act or anywhere else. Therefore, the first limb of s 29 of the Acts Interpretation Act was satisfied to the extent that the circumstances of the present case require.
51 In the present case, however, there is direct evidence from one of the principals of Hunter Partners which established that all four Statutory Demands were, in fact, received at 569 Ross River Road, Kirwan, QLD. There is no dispute, therefore, that, as a matter of fact, delivery (and thus service) of all four Demands was effected at the registered office of Gusdote and Madeas. There is no need for the Demetrious to rely upon s 29 of the Acts Interpretation Act in order to prove the fact of delivery and thus that service had, in fact, been effected.
52 There is, however, a contest as to when the items were delivered to the registered office of those corporations and, perhaps, by whom they were delivered to that address.
53 Section 160 of the Evidence Act provides:
160 Postal articles
(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) 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.
(2) This section does not apply if:
(a) the proceeding relates to a contract; and
(b) all the parties to the proceeding are parties to the contract; and
(c) subsection (1) is inconsistent with a term of the contract.
(3) In this section:
working day means a day that is not:
(a) a Saturday or a Sunday; or
(b) a public holiday or a bank holiday in the place to which the postal article was addressed.
Note: Section 182 gives this section a wider application in relation to postal articles sent by a Commonwealth agency.
54 Unless the contrary is proved, the time at which a letter posted in accordance with the provisions of s 29 of the Acts Interpretation Act is deemed to have been received by and thus served upon the recipient is the time at which the letter would be delivered in the ordinary course of post. For the purposes of s 29 of the Acts Interpretation Act, the contrary may be proved by evidence which establishes precisely when the item was delivered to the appropriate address. In any given case, "the ordinary course of post" is a question of fact. It may be proved, for example, by calling appropriate and relevant evidence from Australia Post.
55 Section 160 of the Evidence Act assists in the proof of the fact "the ordinary course of post" by raising a presumption which will operate unless evidence is adduced which is sufficient to raise doubt about the presumption. The statutory presumption provided for by s 160(1) of the Evidence Act, in effect, gives context and meaning to the expression "ordinary course of post" so long as evidence is not adduced which raises doubt about the appropriateness of the presumption being applied in the particular case. In the absence of evidence sufficient to raise doubt about the presumption referred to in s 160 of the Evidence Act, the Evidence Act presumption will be engaged with the consequence that, for the purposes of s 29 of the Acts Interpretation Act, the letter will be deemed to have been delivered in the ordinary course of post on the fourth working day after it was posted.
56 Therefore, if the evidence before me is insufficient to cast doubt upon the presumption raised by s 160 of the Evidence Act and also insufficient to overcome the deeming effect of the second limb of s 29 of the Acts Interpretation Act, I will be obliged to hold that, for the purposes of ss 459E, 459F and 459G of the Act, the four Statutory Demands were all served on Thursday 31 December 2009. Taking into account weekend days and public holidays immediately after 23 December 2009, 31 December 2009 was the fourth working day after 23 December 2009 within the meaning of s 160(3) of the Evidence Act. Friday 25 December 2009 and Monday 28 December 2009 were both public holidays in New South Wales and Queensland. If I were to hold that the Demands were served on 31 December 2009, the proceedings brought by Gusdote and Madeas will have been commenced more than 21 days after 31 December 2009 and thus outside the time limited by s 459G(2) of the Act. In that event, both applications would have to be dismissed for want of jurisdiction.
57 Both parties led evidence which was intended to address the presumption contained in s 160 of the Evidence Act and the deeming effect of s 29 of the Acts Interpretation Act and, ultimately, to provide the basis for an express finding of fact as to when the Demands were delivered to (and thus served upon) Gusdote and Madeas.
58 Gusdote and Madeas called Stuart Alistair Hunter, who is a partner of Hunter Partners. In the affidavit which he swore in the Gusdote proceeding against Mr Demetriou (NSD 47 of 2010), Mr Hunter said:
2. On Thursday 31 December 2009 I was working at my office, leaving the office between 2.00 pm and 3.00 pm.
3. Prior to leaving the office I checked the post box for incoming mail to the office and it was empty.
4. On Friday 1 January 2010 when I arrived at the office I checked the post box for incoming mail. I found an envelope containing a Creditor's Statutory Demand addressed to Gusdote Pty Ltd from Emilios Demetriou.
5. Exhibited hereto and marked "SAH 1" is a true copy of the Creditor's Statutory Demand dated 23 December 2009.
59 He swore a similar affidavit in the proceeding in which Madeas seeks to set aside the Statutory Demand served upon it by Mrs Demetriou (NSD 49 of 2010).
60 Mr Hunter did not attend the hearing in person. However, he was cross-examined by telephone.
61 During the course of that cross-examination, Mr Hunter testified that:
(a) In late December 2009, Hunter Partners occupied 569 Ross River Road, Kirwan, QLD. This was the address of that firm's business premises. On the front boundary, near a driveway into the premises, there was located a street letterbox of a kind commonly found at residential properties.
(b) In late December 2009, and for some time before then, Hunter Partners had maintained a Post Office box at the Australia Post premises at Thuringowa Central, which is another suburb of Townsville and which is located approximately two kilometres away from 569 Ross River Road, Kirwan.
(c) Hunter Partners closed their office from 24 December 2009 to 18 January 2010 for their usual Christmas/New Year break. During this period, Mr Hunter attended at his business premises from time to time as did other staff.
(d) Mr Hunter had the habit at the relevant time of checking the letterbox at his business premises every day in order to make sure that there was no mail there.
(e) He checked the letterbox as he was leaving on 1 January 2010 and discovered the four Statutory Demands in that letterbox. He immediately went back into his office, scanned all four of the Statutory Demands and forwarded them by email to Mrs Matheson.
62 Email records produced by Mr Hunter established that, at 2.39 pm on Friday 1 January 2010, he forwarded the Statutory Demands served by Mr and Mrs Demetriou on Gusdote and Madeas to Mrs Matheson and at 2.41 pm on the same day he forwarded the Statutory Demands served by Mrs Ashley on Gusdote and Madeas to Mrs Matheson.
63 It was, therefore, common ground that all four Statutory Demands had actually been delivered to the registered office of Gusdote and Madeas by no later than mid afternoon on 1 January 2010. The Demetrious, however, submitted that they had been delivered by no later than 30 December 2009.
64 The Demetrious led evidence, over objection, from Mr Alan Smith, who is the manager of the Network Service Performance of Australia Post. Mr Smith said that he was responsible for the monitoring of the service performance of mail posted and delivered between Sydney and Queensland. Mr Smith swore his first affidavit after Mr Hunter had sworn both of his affidavits.
65 Mr Smith was asked to assume that four letters had been posted on 23 December 2009 at Bankstown, as the evidence disclosed. When addressing that assumption, Mr Smith said:
4. … Those letters would normally have been received by Gusdote Pty Limited and Madeas Pty Limited on or before the 30th of December 2009. If the 4 letters were subjected to delay then this may be due to the fact that during the period in question Australia Post was being subject to industrial action. The industrial action ran for the period 11th December to 30th December 2009 inclusive and some mail items were delayed by one or two days.
66 Mr Smith continued in his affidavit as follows:
5. The industrial actions that took place in December 2009 were of a rolling nature across the national network and did cause delays of mail items in such a way it could be possible for mail items that were all posted together to be separated during the course of processing and dispatch. The results of which could be that some items could have arrived in time for delivery whilst others arrived late. This may also occur in the processing network during normal operations due to normal logistics restrictions such as transport capacities etc. It is not possible to categorically state when any single mail item was processed and/or delivered as we do not track and trace each and every mail item that is processed.
6. I can confirm that the 31st December 2009 was the Australia Post Authorised holiday and the 1st January 2010 was a Gazetted National Public holiday, as such no street mail deliveries for normal letter class mail's were undertaken between Midnight 30th December 2009 and Midnight and 1 January 2010. The first street mail deliveries for 2010 for the Townsville area took place on Monday the 4th of January 2010.
67 I accept Mr Smith's evidence. He was not cross-examined. He did not overreach. The position which he occupied at Australia Post at the relevant time qualified him to give the evidence which he gave.
68 Mr Smith said that, had Australia Post not been subjected to industrial action in the period from 11 December 2009 to 30 December 2009, the four Demands would normally have been delivered by no later than 30 December 2009. That is, those Demands would have been delivered within three working days after being posted. Although Mr Smith did not, in terms, testify as to the ordinary course of post between Sydney and Townsville as at 23 December 2009, the effect of his evidence was that the ordinary course of post, unaffected by industrial action, at that time between those two cities was no more than three working days. The first working day after 23 December 2009 was 24 December 2009. It was unlikely that the Demands would have been delivered on Christmas Eve, one day after being posted in Sydney. The next working day after that was Tuesday, 29 December 2009. The substance of Mr Smith's evidence was that, had there been no industrial action affecting Australia Post, in the ordinary course of the post, the Demands would have been delivered on 29 December 2009 or on 30 December 2009. He was unable to be more precise than that.
69 However, Mr Smith frankly disclosed the fact that, at the relevant time, Australia Post was being subjected to industrial action. He said that, as a result, some items were delayed by one or two days. The ordinary course of post for a letter posted in Sydney for delivery to an address in Townsville as at 23 December 2009 was, therefore, up to five working days. Five working days from 23 December 2009 was 5 January 2010. The non-working days for Australia Post immediately after 23 December 2009 were 25-28 December 2009, 31 December 2009 and 1-3 January 2010. The working days in that period were 24 December 2009, 29 December 2009, 30 December 2009, 4 January 2010 and 5 January 2010.
70 The upshot of Mr Smith's evidence was that, as at 23 December 2009 and allowing for the impact of the industrial action to which Australia Post was then being subjected, the Demands could be expected to be delivered in the ordinary course of post on one or other of 29 December 2009, 30 December 2009, 4 January 2010 or 5 January 2010. It was unrealistic to think that the Demands would be delivered on 24 December 2009.
71 The evidence of Mr Smith is sufficient to raise doubt about the presumption provided for by s 160(1) of the Evidence Act. First, he said that no street deliveries of mail took place anywhere in Australia between midnight on 30 December 2009 and 1 January 2010. Therefore, the Demands could not have been delivered by Australia Post on the fourth working day after 23 December 2009 (ie on 31 December 2009). Second, his evidence established that the ordinary course of post for a letter posted in Sydney for delivery to a street address in Townsville as at 23 December 2009 in the circumstances which obtained at the time was between two and five working days. While it is true that the four working day presumption set out in s 160(1) is within the range postulated in Mr Smith's evidence, Mr Smith's evidence shows that delivery on the fourth working day after the day of posting (viz 31 December 2009) is only one of four real possibilities. In any event, there were no street deliveries on the fourth working day (31 December 2009).
72 For these reasons, the Demetrious cannot rely upon the presumption provided for in s 160 of the Evidence Act.
73 I shall now consider whether the second limb of s 29 of the Acts Interpretation Act has any application in the circumstances of this case and whether Gusdote and Madeas have satisfied the Court that their applications against the Demetrious have been brought within the time limited by s 459G(2) of the Act.
74 No challenge was made by the Demetrious to the authenticity of the emails sent by Mr Hunter to Mrs Matheson on 1 January 2010. Those emails appear to be genuine. For these reasons, I find that, by 2.39 pm on 1 January 2010, Mr Hunter had obtained possession of all four Statutory Demands.
75 Mr Hunter testified that he retrieved the Statutory Demands from the letterbox located near the driveway of his business premises at 579 Ross River Road, Kirwan, QLD. Although Hunter Partners had a Post Office box at the Australia Post premises at Thuringowa Central, there is no suggestion that Australia Post had placed the Demands into that Post Office box and that they had thereafter been retrieved from that Post Office box by Mr Hunter or by one of his staff and then brought to his office. The envelopes in which the Demands had been posted were all addressed to the street address of Hunter Partners. I see no reason to doubt Mr Hunter's evidence that he retrieved the four Statutory Demands from the letterbox near the driveway of his office premises and I find that this is what happened.
76 The evidence of Mr Smith does not enable me to fix any particular time as the time at which or any particular day as the day on which the Demands would have been delivered to 569 Ross River Road, Kirwan, QLD in the ordinary course of post. His evidence narrows down the delivery times to a period of time between 29 December 2009 and 5 January 2010. But, some of the days in that period are after 1 January 2010 and some are before that date. As I mentioned at [44] above, 1 January 2010 is the critical day.
77 For these reasons, on the assumption that the expression "the ordinary course of post" encompasses a range of dates as well as a single day, I do not think that defining "the ordinary course of post" by reference to a range of dates which begins on a day which is earlier than 21 days before the commencement of proceedings and ends within that 21 day period, is of any assistance in the present case.
78 Further, there is authority to the effect that, if the actual time of delivery is proved, that is the time of service for the purposes of s 459E of the Act (see Scope Data Systems Pty Ltd v Goman (2007) 70 NSWLR 176 at [17] (p 181)).
79 In the present case, both Gusdote and Madeas, on the one hand, and the Demetrious, on the other hand, attempted to prove the actual time at which the Statutory Demands were placed into the letterbox at 569 Ross River Road, Kirwan, QLD and thus the actual time at which they were delivered to the registered office of Gusdote and Madeas. To recap, Mr Hunter said that those Demands were not in that letterbox at about 3.00 pm on 31 December 2009 but were there by about 2.30 pm on 1 January 2010. If Mr Hunter's evidence is to be accepted, the Demands were placed in the letterbox between about 3.00 pm on 31 December 2009 and 2.30 pm on 1 January 2010.
80 Mr Smith testified that there were no street deliveries of mail on either 31 December 2009 or on 1 January 2010. He said that the last street deliveries of mail in Townsville before the New Year of 2010 were made on 30 December 2009. He also said that street deliveries of mail in Townsville resumed on Monday, 4 January 2010.
81 I have accepted Mr Smith's evidence. It follows from that finding that I accept that street deliveries of mail in Townsville ceased on 30 December 2009 and were not resumed until 4 January 2010.
82 If Mr Hunter's evidence is to be accepted, the only plausible explanation for what occurred is that Australia Post delivered the Statutory Demands on either 29 December 2009 or on 30 December 2009 to another letterbox (probably another letterbox in Ross River Road) and that the occupier of the premises where that letterbox was located became aware that the mail had been misdelivered and, as a gesture of goodwill, took it upon themselves to place the misdelivered mail in the correct letterbox outside Hunter Partners' office. As I see things at the moment, no other plausible explanation for what occurred can be advanced, if Mr Hunter's evidence is to be accepted. During his cross-examination, Mr Hunter speculated that this is what happened. Apart from Mr Hunter's testimony, there was, however, no evidence to support this hypothesis. It remained a matter of speculation.
83 But, even if I were to accept the hypothesis which I have described at [82] above, that hypothesis does not negate the possibility that the neighbourly good Samaritan who placed the Statutory Demands in Hunter Partners' letterbox did so on 31 December 2009, after Mr Hunter had left the premises for the day.
84 Section 459G of the Act provides:
459G Company may apply
(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.
85 In David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, when dealing with provisions which were substantially the same as those which are under consideration in the present case, Gummow J (with whom Brennan CJ and Dawson, Gaudron and McHugh JJ agreed) said (at 276-277):
In providing that an application to the court for an order setting aside a statutory demand "may only" be made within the twenty-one day period there specified and that an application is made in accordance with s 459G only if, within those twenty-one days, a supporting affidavit is filed and a copy thereof and of the applications are served, sub-ss (2) and (3) of s 459G attach a limitation or condition upon the authority of the court to set aside the demand. In this setting, the use in s 459G(2) of the term "may" does not give rise to the considerations which apply where legislation confers upon a decision-maker an authority of a discretionary kind and the issue is whether "may" is used in a facultative and permissive sense or an imperative sense 25. Here, the phrase "[a]n application may only be made within 21 days" should be read as a whole. The force of the term "may only" is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil ((1922) 31 CLR 76 at 100-101. See also (1922) 31 CLR 76 at 96, per Knox CJ and Starke J and Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488-489, per Windeyer J), it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect. The same is true of sub-s (3).
This consideration gives added force to the proposition which has been accepted in some of the authorities that it is impossible to identify the function or utility of the word "only" in s 459G(2) if it does not mean what it says, which is that the application is to be made within twenty-one days of service of the demand, and not at some time thereafter and that to treat s 1322 as authorising the court to extend the period of twenty-one days specified in s 459G would deprive the word "only" of effect (Cavetina Pty Ltd v Synthetic Dyeworks Industries Pty Ltd (1994) 14 ACSR 274 at 281; 12 ACLC 768 at 774; Re J & E Holdings Pty Ltd (1995) 36 NSWLR 541 at 549).
86 In Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd (2005) 188 FLR 373, Besanko J (with whom Duggan and White JJ agreed) said (at [28] (p 380)):
… There is force in the appellant's submissions, but I do not think they are sufficient to overcome the nature of the time limit in s 459G. The requirement as to time is an essential condition of the new right conferred by s 459G (David Grant & Co Pty Ltd) (Receiver Appointed) v Westpac Banking Corporation (supra) per Gummow J (at 277)). In other words, the requirement as to time is a condition of the jurisdiction of the Court to make an order under s 459G. In this case, although the statutory demand was received by the appellant on 24th October 2003 and the application to set aside the statutory demand was made within 21 days after that date, service of the statutory demand on the appellant took place at some point between 14th October and 23rd October 2003. If that service took place no earlier than 23rd October 2003 then the time limit in s 459G was met. If that service took place between 14th October and 22nd October 2003 then the time limit was not met. The evidence in this case did not allow any inference to be drawn other than the inference that the statutory demand was served on the appellant at some time between 14th October and 23rd October 2003. Whether it is appropriate to talk in terms of an onus on the appellant or simply in terms that the court must be satisfied that an essential condition of its jurisdiction is satisfied, on the evidence in this case an essential condition of the right to set aside the statutory demand was not established. The Master was right to dismiss the application.
87 In Scope Data Systems Pty Ltd at [24]-[25] (p 183), White J doubted that there was an onus on the defendant in an application to set aside a Statutory Demand to prove on the balance of probabilities that the time within which the application might be made had expired before the application had in fact been made. He preferred the approach reflected in Derma Pharmaceuticals Pty Ltd and in David Grant & Co Pty Ltd.
88 In David Grant & Co Pty Ltd, the High Court made perfectly clear that the requirement as to time embodied in s 459G(2) of the Act had to be met as an essential condition of the new right conferred by s 459G. Proof of that requirement is thus part of the evidentiary burden which the applicant is obliged to discharge.
89 I have found that there were no street mail deliveries in Townsville between midnight on 30 December 2009 and 4 January 2010. I have also found that Mr Hunter had possession of the Statutory Demands by 2.39 pm on Friday, 1 January 2010 and that he obtained possession of those documents by retrieving them from the letterbox located near the boundary of 569 Ross River Road, Kirwan, QLD. Mr Hunter's evidence, if accepted, suggests that the Statutory Demands were somehow placed into that letterbox by someone other than an officer of Australia Post after 3.00 pm on 31 December 2009 and before mid afternoon on 1 January 2010. However, apart from Mr Hunter's testimony, there is no evidence to support this hypothesis. The most likely explanation for the facts as I have found them so far is that the Statutory Demands were delivered to the Hunter Partners' letterbox either on 29 December 2009 or 30 December 2009. In order to make a finding to that effect, I would have to reject the evidence of Mr Hunter. I do confess to having serious reservations about those aspects of Mr Hunter's evidence which suggest that the Statutory Demands were served after 30 December 2009. However, I do not think it is necessary to reject Mr Hunter's evidence in order to resolve the present question.
90 Mr Hunter's evidence did not establish whether the Statutory Demands were delivered on 31 December 2009, after he left work, or on 1 January 2010. His evidence is consistent with both of these possibilities. Further, Gusdote and Madeas did not seek to call evidence to support the only hypothesis that Mr Hunter could conceive would satisfactorily explain how the Statutory Demands came to be delivered to his firm's letterbox after he left work on 31 December 2009 when Australia Post did not make any street deliveries of mail on 31 December 2009.
91 Adopting the approach of the Full Court of the Supreme Court of South Australia in Derma Pharmaceuticals Pty Ltd and of White J in Scope Data Systems Pty Ltd and applying the principles laid down by the High Court in David Grant & Co Pty Ltd, I find that both Gusdote and Madeas have failed to prove that they made their applications to set aside the Demetrious' Statutory Demands within 21 days after those Demands were served as required by s 459G(2) of the Act. Gusdote and Madeas have failed to prove that those Demands were delivered to Hunter Partners' letterbox on 1 January 2010. For these reasons, their applications in respect of the Demetrious' Statutory Demands must be dismissed for want of jurisdiction.
92 The findings which I have made at [44]-[91] above, strictly speaking, make it unnecessary for me to consider the other issues raised in the applications made by Gusdote and Madeas against the Demetrious. However, in deference to the parties' arguments and against the possibility that there may be an appeal from this judgment, I will address those issues.