Jin Xin Investment & Trade (Australia) Pty Ltd v ISC Property Pty Ltd [2006] NSWSC 7 | Case summary

This paragraph was obviously included in compliance with the instruction in the prescribed form of statutory demand (Form 509H, prescribed by the Corporations Regulations 2001 (Cth)) that there be included in paragraph 6 "the address for service of the documents in the State or Territory in which the demand is served on the company, being, if solicitors are acting for the creditor, the addres of the solicitors". 11 According to the companies on which the demands were served, service of the copies of the s.459G applications and supporting affidavits occurred on the evening of 19 September 2005 when the father of the solicitor Mr Lu placed an envelope containing those documents in a letterbox in the ground floor foyer of an office building at 370 Pitt Street, Sydney. According to the evidence of Mr Lu senior, by the time he went to the building, the lifts had been switched off or placed on security so that persons arriving at the ground floor foyer could not use them to go to the upper floors. Mr Lu senior said that when he discovered this he made use of the letterbox on the ground floor. 12 The companies on which the demands were served also say that, if service did not occur when the documents were placed in the ground floor letterbox on 19 September 2005, it was effected the next day, 20 September 2005, when Mr Chan, a solicitor acting for them, physically handed the documents to Mr Kam of David Kam & Co inside his office premises at Suite 103, Level 1, 370 Pitt Street. 13 The next contention of the companies on which the demands were served is that, if service did not occur in either of the ways just mentioned, it was effected on 20 September 2005 when Mr Chan handed the same documents to Mrs Zhong (a director of each of the companies which had served the demands) inside Mr Kam's office premises at Suite 103, Level 1, 370 Pitt Street. Alleged service by Mr Lu senior - 19 September 2005 14 I consider first the question whether if, as the recipients of the statutory demands contend, the copies of the originating processes and supporting affidavits were placed in the letterbox in the ground floor foyer of 370 Pitt Street on 19 September 2005 by Mr Lu senior, that act would be regarded as service for the purposes of s.459G. 15 It is, in my opinion, clear that service will be valid and effective service for the purposes of s.459G if effected at the address for service specified in the statutory demand in compliance with the instruction in paragraph 6 of Form 509H - here, "David Kam & Co, Solicitors and Migration Agents, Suite 103 Level 1 The Chambers, 370 Pitt Street Sydney NSW 2000". Neither Mr Broun QC nor Mr Forster SC made any suggestion to the contrary in the course of argument (and see Players Pty Ltd v Interior Projects (1996) 20 ACSR 189 at pp.192-3). 16 A question posed by the contentions regarding service on 19 September 2005 by depositing in a letterbox in the ground floor foyer of the office building at 370 Pitt Street, Sydney is whether, even if that depositing were proved, it would amount to service at Suite 103, Level 1, 370 Pitt Street. It is, of course, obvious that to leave documents in a letterbox on the ground floor of an office building is not to leave them at a particularly numbered suite on the first floor of that building. But it might nevertheless be the case that leaving them in that box is to be regarded as the equivalent of leaving them at that suite. 17 There is some broad similarity between the circumstances of this case and those considered by the Court of Appeal in Macrae v St Margaret's Hospital (1999) 19 NSWCCR 1. That case concerned a statutory provision under which service was taken to be effected if the relevant document was "delivered or sent by post to … any place of business" of an employer. The document in question was sent by post to the post office box of the employer hospital. This was held to amount to service in accordance with the provision. 18 Meagher JA was of the view that the post office box was either part of the place of business or a means of access to the place of business. Davies AJA (with whom Priestley JA agreed) held that a post office box was not a place of business but that sending of the document to the post office box achieved appropriate substantial compliance with the statutory provision. His Honour said: "In my opinion, the sending of a document by post to a business person's post office box is an appropriate and possibly the most appropriate way of sending the document by post to that person's place of business. That is because post office boxes are used by businesses to achieve greater reliability in the delivery of postal articles. Documents sent by post to a post office box will be placed in the appropriate post office box ready for collection by the recipient. Documents which are addressed to a place of business are liable to be lost by being slipped under doors of business premises and so on. Very often, business premises do not provide a convenient box for the collection of mail or it is inconvenient for postal officials to find their way through a building to use it. In my opinion, the sending of mail to a nominated post office box is the appropriate and efficient means of sending mail to a business person and it is common practice for businesses to have a post office box and for their customers and other persons dealing with them to use it." 19 Then, after referring to the fact that the hospital's letterhead carried a request that all correspondence be addressed to the post office box, Davies AJA said: "One can see that the employer wished correspondence to be addressed to it at the post office box and one can understand why that is so. Anything might happen to business letters put into a letterbox at the gate of the hospital or received at the hospital's reception desk." 20 Also instructive in a general sense is the decision of Cohen J in Swerus v Central Mortgage Registry of Australia Pty Ltd [1989] ANZ ConvR 169 which concerned a provision under which service might be effected by leaving the document at "the last known place of abode" of the person to be served. The relevant person's abode was a flat on the upper floor of a strata title building. The relevant document was placed in a letterbox mounted on a brick wall at ground level outside the building but within the grounds. The letterbox was not part of the unit and was not included within the strata lot. Cohen J held that the letterbox formed part of the abode: "[I]t seems to me that if a mortgagor provides a means whereby mail may be left at his place of abode, that is to say by having a letter box in close proximity to the building in which he abides, then he has provided an extension of his abode for the purpose of mail or other material being left at the home for him. This is not the same situation as might occur if a letter were merely left in a hallway which is common to the use of a number of occupiers of a building. Here unit 3 had its own locked letter box identified as being appropriate to that unit. In my opinion it can properly be said that the specified letter box was incorporated in the use of the home unit as part of the ordinary living facilities of those who live in it Accordingly I regard the leaving of a notice in that designated letter box as sufficiently complying with the means of service by leaving it at the place of abode." 21 Both these cases show that a place of business or a place of abode may be taken to include or to be accessible by means of delivery facilities not within its physical boundaries. But the question before me is not whether there was service on 19 September 2005 at a place of business or place of abode. It is whether there was service at "David Kam & Co, Solicitors and Migration Agents, Suite 103 Level 1 The Chambers, 370 Pitt Street Sydney NSW 2000". I am not satisfied that an affirmative answer can or should be given to that question in this case. Leaving documents in a letterbox on the ground floor of an office building cannot be regarded as (or as the equivalent of) leaving them at a particular numbered suite on the first floor of the building. Had it been intended that the ground floor letterbox might be used, paragraph 6 of the statutory demand would not have referred to Suite 103 or to Level 1. Instead of giving the address for service as "David Kam & Co, Solicitors and Migration Agents, Suite 103 Level 1 The Chambers, 370 Pitt Street Sydney NSW 2000", it would have specified merely "David Kam & Co, Solicitors and Migration Agents, The Chambers, 370 Pitt Street Sydney NSW 2000": compare Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd (2005) 188 FLR 373 where the question in issue was as to service at a registered office described as "care of Luestner and Associates, 553 Magill Road, Magill in the State of South Australia, 5072" without reference to floor number, suite number or room number. 22 Before the advent of the provision which is now s.100(1)(c) of the Corporations Act, there was reference in a number of cases to the need for a registered office within an office building to be identified by room number, floor number or other feature. In Re Alpina Pty Ltd (1977) SASR 528, for example, Hogarth J said that the relevant part of a multi-storey building should be described, in the specification of registered office, in a manner "sufficient to enable any person wishing to serve a document on the company to identify it exactly". Part and parcel of this thinking is the notion that persons serving documents by physical delivery should have the advantage of knowing with certainty where they are to go. As a corollary, someone armed with that certainty who chooses to leave the document at a place other than that specified with precision acts otherwise than in the way the specification of precise location is intended to ensure. 23 The risks to which Davies AJA referred in Macrae's case as involved in methods of service other than post (for example, "anything might happen to business letters put into a letterbox at the gate of the hospital") must be taken to have played a part in the specification of the address for service by means of express reference to a suite number and express reference to a floor number. If service by physical delivery was to be effected, the clear intention behind the express references meant that the person effecting delivery had to be physically present at Suite 103 on Level 1 of the building. 24 In this case, there was precise specification by reference to Suite 103 and Level 1. The documents put into the ground floor letterbox on 19 September 2005 were not delivered to Suite 103 on Level 1. Paragraph 6 of the statutory demands cannot be regarded as causing the issuers of the statutory demands to be bound by purported service by deposit in the ground floor letterbox. On this basis, I would hold that service of the copies of the originating processes and supporting affidavits did not take place on 19 September 2005, even if I were satisfied that Mr Lu senior had placed them in the letterbox on the ground floor on that day. Alleged service at Suite 103, Level 1 - 20 September 2005 25 I consider next the legal principles relevant to the second event (or series of events) upon which the companies served with the statutory demands rely, namely, physical delivery of copies of the originating processes and supporting affidavits by Mr Chan to Mr Kam within Mr Kam's office premises at Suite 103, Level 1 307 Pitt Street on 20 September 2005. There are disputed issues of fact concerning the relevant events. For the moment, it is sufficient to say that, even on Mr Chan's own evidence, Mr Kam, having taken the documents into his hands from Mr Chan and read them for a minute or two (something which Mr Kam denies), gave them back to Mr Chan who, again on his own account, later gave them, within Suite 103 on Level 1, to Mrs Zhong (something denied by Mrs Zhong) who in turn gave them back to Mr Chan, with the result that Mr Chan left the premises carrying them. Leaving to one side for the moment the events concerning Mrs Zhong, this raises the question whether a document that is taken to particular premises and then taken away again, so that it does not remain there, is to be regarded as having been "served". 26 I digress briefly to consider the meaning of "serve" and "service" in the present context. It has been recognised in a number of cases that both s.109X of the Corporations Act (dealing with service on a "company" as such) and s.28A of the Acts Interpretation Act 1901 (Cth) as in force on 1 November 2000 (made applicable, for the purposes of the Corporations Act by its own s.5C) may, depending on circumstances, be relevant to questions of service under s.459G. Because the documents with which this case is concerned are copies of originating processes and supporting affidavits filed in this court, the rules of court with respect to service might also be relevant to the concept of service under s.459G. But if one looks at all these provisions as they apply to and contemplate service by physical delivery to a place (as distinct from a person), one strong and constant theme emerges. It comes from the words "leaving at": see Corporations Act, s.109X(1)(a), (c), (d); Acts Interpretation Act, s.28A(b); Uniform Civil Procedure Rules 2005, rules 10.5(1)(c), 10.5(2)(a). These provisions with respect to the "leaving" of a document "at" a particular place appear in the same context as provisions concerning sending of documents to the place by post. Something served in the latter way is delivered and left according to the ordinary postal process. Both forms of service contemplate the result that the document remains at the place in question so that it may be read and dealt with there. This, after all, is of the essence of "service". In Hope v Hope (1854) DeG M & G 328 at p.342 (43 ER 534 at pp.539-40), Lord Cranworth LC said: "The object of all service of course is only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required." 27 A document cannot be regarded as served at a place, within any of the statutory specifications I have mentioned (or as a matter of general law), unless the process undertaken in relation to it causes it not only to reach the place but also to remain there within the power of the person having control of the place. It will be immaterial that that person, or someone else on the person's behalf, destroys or discards the document without having read it or chooses simply to ignore it. But it will be highly material if the process employed by the serving party causes the document not only to be taken to the place but also to be taken away again so that the person for whom it is intended, or someone exercising control over the place in question, has no opportunity to decide whether to destroy, discard or ignore it - or even to read and absorb it and to respond. 28 If, as Mr Chan's evidence suggests, he took the copies of the originating processes and supporting affidavits to Suite 103, Level 1, 370 Pit Street and 20 September 2005 and left those premises with them still in his possession (having handed them, or attempted to hand them, to Mr Kam and Mrs Zhong in succession), the position is the same as if he had gone to those premises, walked to the reception desk, placed the documents on it and then picked them up again and left with them. Even if the documents were briefly in the hands of Mr Kam or Ms Zhong or both of them inside the premises in question, they simply were not "left at" those premises. 29 I am therefore of the opinion that if, even if Mr Chan's evidence were accepted in its entirety, it would not be shown that the documents were "left at" Suite 103 within the contemplation of any provision allowing service by "leaving at" a place. Alleged service by delivery to Mrs Zhong - 20 September 2005 30 The third matter to be considered concerns the possibility that the copies of the originating processes and supporting affidavits were served on the companies concerned by being handed to Mrs Zhong on 20 September 2005. As previously, I shall consid the matter on the basis of Mr Chan's evidence alone. 31 Mr Chan's account of matters refers to events following a meeting of directors attended by Mrs Zhong and others at Mr Kam's office on 20 September. Mr Chan was there to look after the interests of the Jin group but was not in the room in which the meeting took place. His affidavit contains the following passage relevant to the matter currently under consideration: "After a while Mr Han Rui Zhong (Mr Zhong) and Mrs Qing Zhong (Mrs Zhong) came out to the reception area with a copy of the purported minutes of the metting. I approached Mrs Zhong. We had a conversation to the following effect: Mrs Zhong: This is the minutes of the meeting. Myself: We have some documents that we filed in the Supreme Court. I am serving them on you. I handed Mrs Zhong the documents. She took the documents, read it quickly and gave them back to me. Mrs Zhong: I don't know. I have to consult my solicitor. Wen and Wei then approached me. I then went through the minute with them. They were not satisfied with the format of the minute. I gave the minute to Mrs Zhong and asked her to amend the minute. Mrs Zhong took the minute and went into the back area of the office." 32 It is clear from Mr Chan's account that when Mrs Zhong gave the documents back to him, he took and retained them. This is made plain by the paragraph of his affidavit immediately following that quoted above. In that next paragraph, he deposes to having asked Mr Kam whether he had instructions to accept service of the documents in question. He would not have pursued that matter with Mr Kam unless the documents had still been in his possession. 33 It is not disputed that Mrs Zhong is, and was at the relevant time, a director of each of the companies by which statutory demands were served. Nor is it disputed that she resides in Australia. The provision on which reliance is placed in this particular context is s.109X(1)(b) of the Corporations Act which provides that a document may be served on a company "by … delivering a copy of the document personally to a director of the company who resides in Australia or an external Territory". 34 The focus here is upon the concept embodied in the words "by … delivering" and "personally". The force of the latter word need not be considered here. If the documents were, as Mr Chan's account would have it, given to Mrs Zhong, they were given to her "personally", since the relevant events involved Mr Chan and Mrs Zhong alone. The central question is as to the meaning of the words "by … delivering … to" when used in relation to a document and a person. The question is whether a document is "delivered" to a person in circumstances where it is handed to the person who then reads it quickly and immediately returns it to the giver who willingly takes it back, retains it and afterwards investigates with a solicitor the possibility of his having instructions to accept service of it. 35 The general meaning of "delivery" received attention in the decision of the Queensland Court of Appeal in Parker v Rankin [1993] 2 QdR 282. As is there explained, the essence of delivery, as a general concept, is the transfer of possession of a movable thing from one person to another. It follows that delivery does not occur if, after the relevant act, the first person retains possession to the exclusion of the second person. 36 In relation to the delivery of documents, assistance is provided by cases concerning the provision of bankruptcy law which says that service of a bankruptcy notice is to be effected by "delivery to the debtor personally". The applicability of the general concept to which I have referred is confirmed by the following passage in the judgment of Gummow J in Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at p.360: "I accept the submission by the respondent to the present application that there may be delivery personally to the debtor of a process within the meaning of r.15 of the Bankruptcy Rules 1968 (Cth), even though the process has not been left in what Patterson J described as the 'actual corporal possession of the defendant'. If the debtor were refusing to take such actual corporal possession of the process, but the process server informed the debtor of the nature of the process and left it before or near the debtor so that the debtor had unimpeded and immediate access to the documents, that, in my view, should, in general, be sufficient to comply with r.15." 37 The words here ascribed to Patterson J come from the judgment in Thomson v Pheney (1832) 1 Dowling's Practice Cases 441: "I do not mean to say, that it is necessary to leave the process in the actual corporal possession of the defendant; for, whether the party touches him or puts it into his hand, is immaterial for the purpose of personal service. Personal serviced may be, where you see a person and bring the process to his notice … I am quite of opinion, that in this case there are not sufficient facts to warrant any man making an affidavit of personal service. If the deponent had informed the defendant of the nature of the process, and thrown it down, that would do." 38 Applying these principles, it has been held that, in the case of a bankruptcy notice, there was "delivery to the debtor personally" where a process server spoke to the debtor through a closed door, attached the notice to the outside of the door and departed leaving it there: Re Hudson; Ex parte G E Crane and Sons Ltd (1990) 25 FCR 318. 39 There is a distinction between "delivery" and "production", so far as documents are concerned. The distinction is referred to in the judgment of Carruthers J in Button v Evans (1984) 56 ALR 317. A document will be produced by one person to another if shown or given by the first person to the second in circumstances where, at the conclusion of their contact, it remains with or is restored to the first person. But it will not be delivered unless the end result of their interaction is a transfer of possession of the document in such a way that the person giving relinquishes physical custody and control and the intended transferee obtains the ready and unimpeded means of exercising physical custody and control to the exclusion of the person giving. 40 In the present case, on his own account, Mr Chan did not conclude his contact with Mrs Zhong on the basis of a transfer of possession of the documents by him to her. Rather, the end result was that he retained possession. And that, moreover, was his intention. He showed this by acquiescing in the course Mrs Zhong initiated when, according to his evidence, she took the documents, read them quickly and handed them back to him. Had it been his intention that possession should pass to her (in other words, that there should be delivery to her), he would not have taken them back. He would have pushed the documents back into her hands, let them fall to the floor at her feet or put them down in her presence, at the same time saying words to the effect, "No, you cannot give the papers back: I have given them to you; they are yours." In the events deposed to by Mr Chan, he merely showed or produced the documents to Mrs Zhong. By taking them back when she proffered them after reading them quickly, he showed clearly that they were not delivered to Mrs Zhong. 41 This conclusion is strengthened when one has regard to what Mr Chan says happened next. According to his evidence, he asked Mr Kam whether he had received instructions to accept service of the very same documents that I have described as shown or produced to Mrs Zhong. On his own account, therefore, the matter of service was unresolved after the interchange with Mrs Zhong. The documents continued in Mr Chan's possession in such a way as to enable him to have an expectation of serving them on the relevant companies through the medium of Mr Kam - that is, by delivering possession of them to Mr Kam. For Mr Chan to be in a position to take that stance subsequently with Mr Kam, it was necessary that he had not put Mrs Zhong into possession of the documents. Service on the solicitor? 42 Mr Chan's affidavit refers to three occasions during his visit to Mr Chan's office on 20 September 2005 on which he asked Mr Kam whether he had instructions to accept service of the copies of the s.459G originating processes and supporting affidavits. According to Mr Chan's evidence, Mr Kam's response was in the negative on each of the three occasions. The first occasion was that on which, according to Mr Chan, Mr Kam took the documents from him and read them for a minute or two. The other two occasions were subsequent and, on Mr Chan's account, did not involve his handing the documents to Mr Kam. 43 It may be that service for the purposes of s.459G(3) can be established by showing delivery to a solicitor having the actual authority of the relevant party to accept service. It is not necessary here to come to any concluded view about that. This is because, even on Mr Chan's account, Mr Kam never professed to have relevant instructions from the companies by which the demands were served. The matter therefore need not be pursued.

Jin Xin Investment & Trade (Australia) Pty Ltd v ISC Property Pty Ltd

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (4)

Cases Cited (6)

Cited By (9)