Kookaburra Educational Resources Pty Limited v MacGear Limited Partnership trading as MacGear Australia, in the matter of Kookaburra Educational Resources Pty Limited

Evidence 30 Kookaburra relies on four affidavits in this proceeding, being two affidavits filed in support of its application of Chris Kelly and Justin Bielefeld, both sworn on 15 March 2021, and two affidavits of Craig Doyle sworn on 12 and 18 May 2021. MacGear relies on five affidavits: two of Kate Smith sworn on 20 April and 21 May 2021; two of Laura Anderson sworn on 21 April and 31 May 2021; and one of Kahlia Smith sworn on 30 April 2021. All of these affidavits were admitted without objection, save for a mutual and agreed reservation by both parties that they may need to raise objections to this material in the future should the existence of a genuine dispute in relation to the Demand be put in issue. 31 At the commencement of the hearing I granted leave to Kookaburra pursuant to r 29.07 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) to rely on the four affidavits identified above, as they were all filed in irregular form. MacGear did not object to the granting of such leave. 32 The irregularity resulted from the failure of the deponents of Kookaburra's affidavits to include the date upon which they swore or affirmed their evidence on the first visible page of the affidavit, as required by r 29.02(2)(b) of the Federal Court Rules. Mr Kelly and Mr Doyle included a date on the final page of their affidavits in the attestation clause. Mr Bielefeld, whose supporting affidavit annexed the Demand, did not include a date on any of the pages of his affidavit. He did, however, include his name and the date '15 March 2021' in the certificate stamped on Annexure C to his affidavit. 33 I am satisfied that it is appropriate to grant leave pursuant to r 29.07 of the Federal Court Rules for the following reasons. 34 First, it has been held in cases concerning the validity of affidavits accompanying statutory demands that a date in an annexure is sufficient to find that a document is an affidavit: Fastlink Calling v Macquarie Telecom Pty Ltd (2008) 217 FLR 366; [2008] NSWSC 299 (Fastlink) at [50] (Barrett J) applied by Brereton J in Re W D Gelle Insurance & Finance Brokers Pty Limited [2014] NSWSC 602 at [21]-[23]. 35 Second, even if Mr Bielefeld's affidavit was defective due to the absence of a date anywhere but the annexure certificate, there is no apparent prejudice. Section 459G(3) of the Corporations Act requires an affidavit to be filed and served in support of an application to set aside a statutory demand. Kookaburra filed two affidavits in support of its application: one from Mr Bielefeld and one from Mr Kelly. Mr Kelly's affidavit, which included a date in the attestation clause, would have satisfied the requirement for a supporting affidavit. It is true that, unlike Mr Bielefeld, Mr Kelly did not annex a copy of the Demand to his supporting affidavit. However, this is not fatal. Whilst it is good practice to annex the statutory demand to the affidavit in support of an application made pursuant to s 459G, it is not necessarily an essential prerequisite: Newsnet Pty Limited v Patching (2011) 81 NSWLR 104; [2011] NSWSC 690 at [52] (White J) and the cases cited therein. 36 In Tatlers.com.au Pty Ltd v Davis (2007) 213 FLR 109; [2007] NSWSC 835 at [31]-[32], White J belatedly allowed the tender of a statutory demand that was not annexed to the supporting affidavit after finding there was sufficient evidence from which to infer both the existence and the content of the demand. Mr Kelly does not mention the existence or content of the Demand in his affidavit, however the date and amount of the Demand is particularised in the Originating Process. Furthermore, MacGear did not object to the granting of leave or raise any concerns about prejudice in this regard.

The plaintiff's ACN 37 After the hearing it became apparent that the Australian Company Number (ACN) specified by Kookaburra in the Originating Process was incorrect. Kookaburra stated its ACN as 087 735 922 in this document. The extract of ASIC records annexed to an affidavit read by MacGear shows that Kookaburra's ACN is, in fact, 087 735 966. 38 The error was brought to the attention of the parties. In the absence of any objection to the correction of the error from either party, I am satisfied that it is appropriate to amend the Originating Process pursuant to r 8.21(1)(c) of the Federal Court Rules to correct the mistake in Kookaburra's name. This power is exercisable on the Court's own initiative (r 1.40(a)) and after the end of any relevant limitation period (r 8.21(2)), including the statutory period in s 459G(2) of the Corporations Act. In the circumstances, I also consider it appropriate to dispense with the requirement for either party to file any amended documents in this regard (r 1.34).

Consideration 39 Kookaburra and MacGear each provided written submissions that were supplemented orally at the hearing. Both parties also provided brief supplementary written submissions after the hearing addressing the applicability and effect of the SEPA.

MacGear's principal contention 40 MacGear submits that the Court's jurisdiction under s 459G is not enlivened because Kookaburra failed to file and serve its application within 21 days of service of the Demand, as required by s 459G(2). 41 MacGear contends that the Demand was served on Kookaburra on 23 February 2021, as evidenced by: (a) the Australia Post tracking record of the express post delivery, which shows the Demand and covering letter were delivered to a post office box in Coffs Harbour, New South Wales at 7.28 am on 23 February 2021; and (b) the emails between Kookaburra's solicitor and accountant discussing receipt of the Demand and covering letter on 23 February 2021. 42 Accordingly, MacGear submits the last date for service of an application to set aside the Demand was 16 March 2021, being the date that was 21 days after the date upon which MacGear submits the Demand was validly served. 43 The application to set aside the Demand was filed on 17 March 2021 and was not served until 18 March 2021.

Kookaburra's contentions in response 44 Kookaburra seeks to resist the contention that the Court's jurisdiction is not enlivened by reason of its failure to serve the application within 21 days of service of the Demand on the following grounds: (a) there was no service of the Demand under the requirements of the SEPA, having regard specifically to ss 9, 15 and 16 of the SEPA, and the service of the Demand was thereby ineffective, including by reason of MacGear's failure to attach a Form 1 (SEPA Contentions); (b) there was no service of the Demand upon the registered office of Kookaburra at 226A Harbour Drive, Coffs Harbour, New South Wales (Ineffective Service Contentions); (c) the date of receipt by Kookaburra of the Demand was 26 February 2021, the date upon which the registered post delivery was received by Kookaburra's accountants, Bentley Brett & Vincent (Date of Service Contentions); (d) the service of the Demand by registered post on 26 February 2021 had the effect of withdrawing any service of the Demand by express post on 23 February 2021, thus "resetting" the statutory period to set aside the Demand (Resetting Date Contention); (e) the supporting affidavit was false in that it alleged that there was no genuine dispute about the existence or amount of any of the debts and a letter from DWF to MacGear of 11 November 2020 gave rise to a genuine dispute in respect of the debt (Genuine Dispute Contentions); and (f) the Demand was defective because it specified an interstate address for the service of any application to set it aside (Interstate Address Contention).

SEPA Contentions 45 For the following reasons advanced by the defendant in its supplementary written submissions, the SEPA has no application to the service of statutory demands. 46 First, as explained by French CJ and Bell J in Mok v Director of Public Prosecutions of the State of New South Wales (2016) 257 CLR 402; [2016] HCA 13 at [10] and [11], both the SEPA and its predecessor, the Service and Execution of Process Act 1901 (Cth), were enacted pursuant to s 51(xxiv) of the Constitution, which authorised the making of laws for the "service and execution throughout the Commonwealth of the civil and criminal process and the judgments of courts of the States". As explained by French CJ and Bell J at [11], the SEPA was enacted following a report of the Australian Law Reform Commission in 1987 which observed that "process" is a term which "includes the documents by which legal proceedings are commenced or by which witnesses are brought before the courts": Service and Execution of Process [1987] ALRC 40 at xxv. 47 Second, the various Parts of the SEPA, on their face, suggest that its operations are confined to the service and execution of processes of courts and tribunals: (a) Part 2 is concerned with service of initiating and other processes in civil and criminal proceedings in a court or before an authority; (b) Part 3 is concerned with interstate service of subpoenas; (c) Part 4 is concerned with interstate service of process of tribunals; (d) Part 5 is concerned with interstate execution of warrants and the power to make associated suppression orders; (e) Part 6 is concerned with interstate enforcement of judgments; (f) Part 7 is concerned with interstate enforcement of fines; and (g) Part 8 includes miscellaneous provisions, not relevant for present purposes. 48 Importantly, Part 1 of the SEPA contains primary provisions with respect to modes of service on companies of documents "under this Act". The provisions of Part 1, including s 9, only purport to provide for the interstate service of documents falling "under this Act". 49 Contrary to the position advanced by the plaintiff in its supplementary written submissions: (a) a statutory demand is not a "document under this Act" for the purposes of s 9 of the SEPA and it is neither an originating process nor a document for a related purpose falling within any of Parts 3 to 8 of the SEPA; and (b) further, statutory demands cannot be characterised or regarded as an enforcement of a judgment for the purposes of the SEPA, rather they are a "mere written demand for payment and a threat to present a winding-up petition at some future time": Clarke & Walker Pty Limited v Thew (1967) 116 CLR 465; [1967] HCA 28 (Clarke & Walker) at 467 (Barwick CJ, Taylor, Windeyer and Owen JJ). 50 Third, a demand made by a creditor does not constitute the taking of proceedings against a debtor in respect of that debt: Clarke & Walker at 467-8; St George Bank - A Division of Westpac Banking Corporation v Active Property Investment Pty Ltd (2010) 77 NSWLR 148; [2010] NSWSC 736 at [9] (Barrett J). See also Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACSR 362; [1994] 2 VR 290 at 368-369 (Hayne J) and Altarama Ltd v Camp (1980) 5 ACLR 513 at 521 (McLelland J). 51 Fourth, previous attempts to contend that the provisions of the SEPA applied to statutory demands have been unsuccessful. 52 In Cockatoo Ridge Wines Ltd v Naked Wines Direct Pty Ltd [2006] NSWSC 1074 (Cockatoo Ridge), Barrett J stated at [14]: I do not accept that service of a statutory demand pursuant to s.459E requires resort in any way to the [SEPA]. Indeed, the Elan Copra case (at [19]) supports, rather than denies, the efficacy of a statutory demand emanating from one State and served in another even in the absence of specification of an address for service in the destination State. There is no substance in the defendant's submissions. 53 In Longjing Pty Ltd v Hammer Brothers Pty Ltd (2017) 123 ACSR 456; [2017] NSWSC 1534, the statutory demand in issue had been attached to a "Notice to Defendant" that was purported to have been issued under s 16 of the SEPA. Consistently with the reasoning in Cockatoo Ridge, Gleeson JA described the SEPA notice accompanying the statutory demand as "unnecessary" (at [27]) having earlier observed that: a statutory demand under s 459E was not a curial process issued out of any court (at [15]); the requirements of s 16 of the SEPA relating to prescribed notices to be attached to an "originating process" served in another state did not apply to a statutory demand (at [16]); and a statutory demand is not a proceeding (at [17]). 54 Each of the SEPA Contentions must therefore fail.

Ineffective Service Contentions 55 Given that the SEPA does not apply to the service of statutory demands, the question of service falls to be considered pursuant to other provisions, in particular, s 109X of the Corporations Act and s 28A of the Acts Interpretation Act. 56 Section 109X is facultative not proscriptive: Polstar Pty Ltd v Agnew (2007) 208 FLR 226; [2007] NSWSC 114 at [14]-[16] (Barrett J); Australian Solar Electrics Pty Ltd v IPD Group Ltd [2012] FCA 786 (Australian Solar Electrics) at [8] (Gordon J); Intelogent Pty Ltd v Onthego Group Pty Ltd [2021] FCA 257 at [33]-[39] (Farrell J). 57 Whether there has been good service of a document depends upon whether the serving party can prove to the Court's satisfaction that the document in fact came to the attention of an officer of the company who is either expressly or implicitly authorised by the company to deal directly and responsively with the document (responsible officer). There is no special exception to what has been described as the "effective informal service rule" with respect to service by email or facsimile. The question always remains whether that mode of service actually brought the document to the attention of a responsible officer: Australian Solar Electrics at [7]; Woodgate v Garard Pty Ltd (2010) 239 FLR 339; [2010] NSWSC 508 at [44] (Palmer J); TCL Airconditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd, in the matter of TCL Airconditioner (Zhongshan) Co Ltd (No 2) (2019) 369 ALR 192; [2019] FCA 257 at [41]-[42] (McKerracher J). 58 The email communications between Mr Doyle and Mr Brett on 10 May 2021 establish that the Demand was expressly brought to the attention of at least one of the directors of Kookaburra, namely Mr Sinclair, on 23 February 2021, initially by Mr Brett telephoning Mr Sinclair and then by Mr Brett emailing the Demand to Mr Sinclair. 59 I am satisfied that the Demand was brought to the attention of an officer of Kookaburra who was at least implicitly authorised by the company to deal directly and responsively with the Demand. This constituted effective informal service of the Demand, notwithstanding any failure of MacGear to serve the Demand on the registered office of Kookaburra.

Date of Service Contentions 60 Given my finding of effective informal service of the Demand on 23 February 2021, the contention that the Demand was not served until 26 February 2021 must fail.

Resetting Date Contention 61 Counsel for Kookaburra conceded that he could not find any authority for the proposition that the subsequent service of a duplicate of a statutory demand operated to restart the statutory period in which an application to set aside a statutory demand must be served. 62 The two version of the Demand were identical. The only difference was the mode of service of the two versions: express post compared with registered post. I cannot see any principled basis on which it could be concluded that the first served demand could effectively be treated as withdrawn and the commencement of the statutory period reset to the date upon which the duplicate demand was served. 63 For these reasons, I do not accept the Resetting Date Contention.

Disputed Debt Contentions 64 While not accepting that there was a genuine dispute as to the existence of the debt upon which the Demand was based, counsel for MacGear confirmed that MacGear did not seek to resist the application to set aside the Demand on the basis that there was not a genuine dispute. The existence of a genuine dispute would only relevantly arise if the application to set aside the Demand was made within the requisite statutory period. 65 Given my findings above with respect to the timing of the service of the Demand, the application to set aside the Demand was not made within the 21 day statutory period. It is therefore unnecessary to consider the Disputed Debt Contentions.

Interstate Address Contention 66 It is common ground that the Demand did not comply with the requirements of Form 509H in Sch 2 to the Corporations Regulations, and therefore did not comply with s 459E(2)(e) of the Corporations Act, because it specified an interstate address for the service of any application to set aside the Demand. This may well have constituted a defect in the Demand that Kookaburra could have attempted to rely upon had the application to set aside the Demand been made within the 21 day statutory period. Given the application was not served within 21 days, however, the Court's jurisdiction to set aside the Demand by reason of a defect is not enlivened. 67 Kookaburra sought to overcome this difficulty by raising an alternative case that the Interstate Address Contention could be relied upon as a basis to obtain a declaration that the Demand was null and void. Kookaburra places particular reliance on the decision of Brereton J in Re International Materials & Technologies Pty Limited (2013) 282 FLR 362; [2013] NSWSC 787 (International Materials). 68 Brereton J found that a statutory demand that specified an address for service of any application to set aside the demand in a state other than the state in which the demand was served had the effect of "entrapping" the debtor into not complying with the requirements of the SEPA and thereby precluding the debtor from making a valid and effective application to set aside the demand: International Materials at [16]. His Honour considered that "major deficiencies" in a document that purports to be a statutory demand may go beyond mere defects and render the demand a nullity: International Materials at [18]. 69 His Honour concluded at [20] that the failure to specify an address for service in the state in which the demand was served was, in his view: [S]o serious and fundamental as to deprive the demand of the quality or character of a demand under s 459E in that it failed, in a material and fundamental way, to comply with the prescribed form referred to in s 459E(2)(e). 70 Brereton J considered that as the demand was a nullity, the appropriate course was to declare the demand null and void, which would have the effect of precluding any subsequent reliance on it: International Materials at [21]. 71 Subsequently, in Re Urban Solutions Group Pty Limited [2015] NSWSC 1940 (Urban Solutions) at [3], Black J stated: I accept that in exceptional circumstances it may be that the Court may, where a valid application under s 459G of the Act is not before it, make some other form of declaration. In Re International Materials and Technologies Pty Limited [2013] NSWSC 787, Brereton J took that course where there was an issue as to the validity of an address for service specified in a creditor's statutory demand. However, it seems to me that position is the exception rather than the rule, and cannot be permitted to become the rule, lest the time limit within which an application to set aside a creditor's statutory demand under s 459G of the Act must be brought is subverted in the legislative purpose which it is intended to achieve is defeated. 72 I am not satisfied in the present circumstances that the specification of an interstate address for service in the Demand, albeit not at the registered office of the creditor, constitutes exceptional circumstances. In International Materials, unlike the present case, the application to set aside the demand was filed and served on the creditor's solicitors at their interstate address within the 21 day statutory period. The prejudice was manifest because the interstate service, contrary to the SEPA, was made on the solicitors rather than the registered office of the creditor, but was otherwise within time. Here, both the filing and service of the Originating Process and two supporting affidavits occurred outside the statutory period. 73 By reason of that finding, it is not necessary for me to address MacGear's opposition (relying principally on the Graywinter principle: see Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452; [1996] FCA 822) to the late application by Kookaburra for alternative relief, being the making of a declaration of nullity or the granting of injunctive relief. 74 As Black J concluded in Urban Solutions at [13], the proper forum to raise alleged defects in a statutory demand where an application to set aside the demand is brought out of time is at the hearing of any winding up application. This includes alleged defects as to the specification of an interstate address for service contrary to the requirements of Form 509H.

disposition and costs 75 For the reasons outlined above, I am satisfied that the Court's jurisdiction under s 459G is not enlivened and the Demand is not itself null and void. Accordingly, the application must be dismissed. 76 In the usual course, MacGear as the successful party would be entitled to its costs as agreed or taxed. I note, however, that both parties have indicated that they wish to be heard separately on the question of costs. In these circumstances, I will make orders for the exchange of short submissions on costs and will determine the matter on the papers unless either party requests an oral hearing. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.