14 This is clear authority which is binding on the construction of s 109Y which is in material respects identical to the section under consideration by the High Court.
15 The question is whether in fact there is evidence of non-delivery. Clearly, in many cases there is evidence of non receipt. Frequently this occurs in cases where a registered office has been vacated and the document is served and not returned through the post. In such cases the mere fact of non receipt does not prove non delivery.
16 The present circumstances in this case are somewhat different and it is necessary to see whether there might be evidence which would suggest non delivery. The first thing to note about the present matter is that the registered office was at the address of a home unit in Sydney which was Mr Adams' residence when in Sydney. He normally resided in Sydney from Friday over the weekend and sometimes on Monday. The rest of the time he would normally spend in Newcastle attending to his other business. He gave evidence that he was the person who received the mail except for an occasion when the letter box became too full when his next door neighbour would take it out and later give it to him.
17 He swears that the letter was not received. He also swears that he was in Sydney on 26, 30 and 31 July. Given these dates if the letter had been delivered in the ordinary course one could conclude that it would come to his attention.
18 Another matter to note is that being an accountant and having practised in insolvency areas he is aware of the importance of the statutory demand and would not have ignored it if it had been received. The fact that it was not delivered to him seems to be supported by Mr Adams' reaction when he first heard of the fact that a statutory demand had been served. This occurred at the meeting between him and Mr Murphy when Mr Murphy wanted to talk about their disputes. The meeting was on 25 August 1999. Mr Murphy is alleged to have said:-
"Thanks for coming Robert. I want to talk about the business between us. My solicitor tells me that you have committed an act of bankruptcy."
19 Mr Adams replied:-
"What the hell are you talking about?"
Mr Murphy said:
My solicitor sent you a Statutory Demand and gave you 21 days to pay and he didn't get a reply to that demand. He wants me to take action on that but I'm willing to offer you one last chance."
20 Mr Adams said:
"What are you talking about? I have never received anything from your solicitor and especially not a Statutory Demand."
21 Although Mr Murphy filed an affidavit sworn after this one he did not deny the conversation nor was Mr Adams cross examined to suggest that the conversation was false.
22 It seems to me that it is important in this case that we are not dealing with a letter which was sent to a business address where other people may open mail or where there is a likelihood of it being mislaid. There is no doubt that the letter was posted but it seems to me that the evidence given by Mr Adams is sufficient evidence "to the contrary" to disprove delivery of the letter.
23 In these circumstances there is no proof of the time of delivery and, accordingly, there has been no compliance with the demand. In these circumstances I move on to the question as to whether there has been an abuse of process in respect of the present proceedings.
24 The first area for consideration on the abuse of process argument depends upon whether or not the plaintiff can prove that it is a creditor. The statutory demand in this matter claims an amount of debt being $43,220. The detail of that is referred to in the affidavit in support of the statutory demand which sets out special condition 2(b) of the contract between the parties. The contract was for the sale of a business and the relevant clause was in the following terms:-
"The parties acknowledge that as at the date of this agreement the sum of $200,000.00 has been paid. Of the balance of $50,000.00 the amount of $32,000.00 will be considered to have been repaid when the current leases over the two vehicles marked with * in clause two (2) of annexure "A" hereto have been repaid in full by the purchasers and the purchasers acknowledge that they will from the date of this agreement be responsible for the payment of the said leases. The balance of $18,000.00 is an interest free loan from the vendors to the purchasers repayable within six (6) months of the date of this agreement."
25 The undisputed evidence before me is that the leases of the two trucks which were referred to in the clause, which were entered into by the vendors, have in fact been replaced by leases entered into by the purchaser, the defendant in this matter. This would seem to fulfil the requirements of clause 2(b) and, accordingly, there is no doubt that $32,000 is not payable. The balance which appears to be either $18,000 or $18,020 is said to be an interest free loan. Mr Adams, on behalf of the defendant, has not sworn any evidence about repayment of that loan. The only evidence that goes to the matter is a letter from the plaintiffs' former solicitors Messrs Burgess Foat in which they make demands for various amounts. The demand included the loan of $18,000 but referred to a payment of $8,000 on 3 March 1999. The letter which was not clear that this amount was paid in relation to the $18,000 loan. In the absence of evidence either from Mr Adams or Mr Murphy that the $18,000 has been paid in reduction of the loan, I would not conclude that the $18,000 has been repaid in part.
26 The other area which should be mentioned is the offsetting claims which are raised in the evidence. These offsetting claims relate to the retention by the plaintiff of vehicles belonging to the defendant. The vehicles were in a leased area occupied by the defendant when the plaintiff took possession of it apparently after issuing a notice to quit. The plaintiff secured the vehicles and then subsequently removed them from the site. No basis for the retainer of any satisfactory nature has been advanced. There is evidence before me that the damages for retention of the vehicle PAR107 of $37,500 and the vehicle PAY422 of $22,5000. This is a total of $59,500.
27 However for the purposes of considering whether the creditor has standing it is only appropriate to consider the claim in debt and the potential set off evidenced by the offsetting claim cannot be taken into account. See L & D Audio Acoustic Pty Limited v Pioneer Electronic Australia Pty Limited (1982) 7 ACLR 180 at 183 or (1982) 1 ACLC 538 at 539. Accordingly in the present case since the set off does not affect the standing of the plaintiffs as creditor one could not conclude there is an abuse of process by virtue of the fact that the creditor has no standing. There is at least an admitted debt due of $18,000.
28 The next matter to consider is the parallel proceedings point. Shelltex Pty Limited who is now a plaintiff in these proceedings commenced proceedings in the Local Court at Newcastle to recover $10,000 from the defendant. The claim was issued on 8 April 1999. The statutory demand in these proceedings was dated 23 July 1999 and it will be recalled that in a letter of 18 June 1999 a demand had been made for a payment in relation to a loan of $18,000. These proceedings were discontinued on 30 September 1999 which is after the issue of the summons in these proceedings on 6 September 1999.
29 In Portfolio Projects Pty Ltd v Oakes Building Co Pty Ltd (1987) 5 ACLC 911 at 913, His Honour Mr Justice Needham was concerned with a case of a parallel set of proceedings. He concluded at 913 that:-
"It seems to me to be an abuse of the process of this Court to make the claim for that sum of money as included in its Common Law claim, and then to seek to wind the company up by parallel proceedings in the Equity Division because of the failure to pay to the plaintiff the same sum of $78,930."
30 His Honour's comments were adopted by Santow J in Roy Morgan Research v Wilson Market Research (1996) 14 ACLC 925. There was also reference with approval to what was said by the late Master Adams in Mala Pty Ltd v Johnston (1995) 13 ACLC 100 at 102. There the Master said:-
"As to abuse of process, it is prima facie an abuse of process for any party to institute two proceedings for the one claim. That much, I think, appears from a case cited to me this morning, Portfolio Projects Pty Ltd v Oakes Building Co Pty Ltd (1987) 5 ACLC 911. I use the words `prima facie' because there can be an explanation why two proceedings are issued and it is a matter for the court to determine whether the explanation is sufficient. That, I think, appears from Re Bond Corporation Holdings Ltd (1990) 8 ACLC 153; (1990) 1 WAR 465 where there was at the time of the filing of a petition civil proceedings in the court which involved a dispute as to the same amount."
31 In the present case there has been cross examination of Mr Murphy one of the principals of the other plaintiff Shelltex Pty Limited. That cross examination demonstrated that the proceedings commenced by Shelltex were for part of the same sum as was sought to be recovered in the present statutory demand. As I have earlier indicated the chronology indicates that the proceedings for recovery of the debt by Shelltex were commenced well before the issue of the statutory demand and the commencement of these proceedings. Clearly they were part of a recovery process which also included the letter of 18 June 1999 to which I have referred. Mr Murphy seems to have changed solicitors some time after that letter was written and a procedure was adopted by the new solicitors of issuing a statutory demand and then commencing these proceedings. In my view the change of solicitors does not excuse what has happened. It seems to me that the issue of the statutory demand is another step in the debt collection process adopted by Mr Murphy. There is of course nothing intrinsically wrong with a debt collecting process. However, to issue proceedings for the winding up of a company when there are already proceedings on foot for the recovery of the debt is, as has been pointed out in the cases, prima facie an abuse. There is nothing in the evidence that provides an explanation in respect of the matter.
32 In these circumstances I am satisfied that the commencement of these proceedings is an abuse of process and that, accordingly, the summons should be dismissed.
33 The orders that I make are:-