Plaintiff/Respondent v Defendant/Appellant

1 This is an appeal from an Associate Judge of the Court relating to whether two statutory demands have been effectively served on a company not less than 21 days before the filing of an application for its winding up.

2 On 7 March 2019, the plaintiff, AXF Entertainment Pty Ltd (in Liquidation) (AXF Entertainment), applied to the Court pursuant to s 459P of the Corporations Act 2001 (Cth) (the Act) to wind up the defendant, AXF Group Pty Ltd (the Company) on the grounds of presumed insolvency by virtue of an unsatisfied statutory demand. The winding up application is listed for hearing before the Associate Judge on 14 October 2019 on an estimate of three days.

3 By interlocutory process dated 13 June 2019, the Company applied, pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules), for the Court to determine preliminary questions relating to whether two statutory demands dated 16 January 2019 and issued by AXF Entertainment and Xiang Club Pty Ltd (in Liquidation) (Xiang Club),[1] (together, the Demands) had been served on the Company.

4 The Demands were sent by Australia Post to the registered office of the Company on 17 January 2019 in circumstances where the building that housed the office had been demolished but a mail redirection had been arranged by Vu Hoang Nguyen, the Company's Victorian solicitor (Mr Nguyen), to redirect mail to his residential premises.[2] The Associate Judge found that the Demands were not delivered to, or received by Mr Nguyen at, the redirection address.

5 On 9 July 2019, the Associate Judge delivered Judgment, finding that the Demands had been validly served on 23 January 2019, being not less than 21 days before the filing of the winding up application.

6 This appeal is against the findings in relation to valid service. For the reasons that follow the appeal will be dismissed.

7 The plaintiff was wound up by the Court on 20 June 2017 and Craig David Crosbie and Robert Scott Ditrich (the Liquidators) were appointed liquidators. Upon reviewing the books and records of the plaintiff and the Company's loan accounts with the plaintiff, the Liquidators concluded that as of 16 January 2019 the Company was indebted to the plaintiff in the sum of $1,647,021.79.

8 On 16 January 2019, a creditor's statutory demand was signed by Hunt & Hunt, the plaintiff's solicitors (the AXF Demand). On 17 January 2019, the statutory demand was sent by registered post to the Company's registered address of 60 Eastern Road, South Melbourne, Victoria, 3205. Sharmin Haque, a mail clerk at Hunt & Hunt, affirms that she posted the statutory demand addressed to the Company, together with a covering letter dated 16 January 2019 and an accompanying affidavit of Mr Ditrich of the same date, by placing the documents in the post box located on the corner of William Street and Bourke Street, Melbourne, at 5:00pm on 17 January 2019.

9 Upon receiving a statutory demand, the debtor must, within 21 days of receiving the demand, either pay the creditor the amount stated or secure or compound for that amount, as per s 459E(2)(c) of the Act. If the debtor disputes the statutory demand, it must apply to the Court to have the statutory demand set aside under s 459G of the Act. The Company did not file an application to set aside the statutory demand. The Company was therefore presumed insolvent pursuant to s 459C of the Act and the plaintiff was entitled to bring a winding-up application under s 459P of the Act. The plaintiff issued its application to wind up the Company on 7 March 2019.

10 The Company's Victorian solicitor, Mr Nguyen, deposes that although the address of 60 Eastern Road remains listed as the Company's registered company address on an ASIC search, being his office, he had moved from that address on or about 11 September 2018 and the office building was demolished in November 2018. Mr Nguyen further deposes that he did not advise Richard Gu, the director of the Company, that he was moving premises. He had, however, organised for Australia Post to redirect all the mail sent to the 60 Eastern Road address to be forwarded to his new premises at Heath Street, Port Melbourne, Victoria, 3207 for a period of 6 months.[4] In March 2019, Mr Nguyen extended the redirection for a period of 3 months.

11 Ms Lou, the Company's solicitor located in New South Wales, deposes that she received a phone call from Christopher Sequeria of Price Waterhouse Coopers on 9 April 2019. Mr Sequeria works with the Liquidators of the plaintiff. During the phone call, Ms Lou deposes that Mr Sequeria advised her that there was a wind-up hearing listed for 10 April 2019, and that there had been no response from the Company.

12 Following the conversation, Ms Lou contacted Hunt & Hunt, and requested that the solicitor, Zoe Hussaini, forward her all the relevant court documents.

13 Ms Lou also contacted Mr Gu on this date, who at the time was in China on a business trip. Ms Lou and Mr Gu deposed that Mr Gu did not know about the wind-up hearing.

14 Mr Gu deposes that he first learnt of the AXF Demand during his conversation with Ms Lou over WeChat. He also deposes that he became aware of a second statutory demand said to have been served on the Company, issued by Xiang Club (the Xiang Demand) and also posted by Hunt & Hunt on 17 January 2019.

15 Mr Nguyen deposes that on 10 April 2019 he received a phone call from Rob Rafaniello, the chief operations manager of the plaintiff. Mr Rafaniello advised that he had been contacted by Mr Gu, who stated he knew nothing about the statutory demand and requested that he contact Mr Nguyen. Mr Nguyen denies ever having received the statutory demand and relayed this to Ms Lou on 10 April 2019.

16 On 10 April 2019 the wind-up application was adjourned to 15 May 2019 by order of Judicial Registrar Hetyey. On 15 May 2019, Judicial Registrar Matthews set the matter down for hearing before the Associate Judge on 20 June 2019. As noted, the wind-up application is now set down for hearing before the Associate Judge on 14 October 2019 on an estimate of three days.

17 On 13 June 2019 the Company filed an interlocutory process seeking that the Court consider four preliminary questions relating to service of the Demands. The two questions relevant to this appeal are:

(a) was the creditor's statutory demand dated 16 January 2019 issued AXF Entertainment and addressed to the Company served on the Company on a date not less than 21 days before 7 March 2019?; and

(b) was the creditor's statutory demand dated 16 January 2019 issued by Xiang Club and addressed to the Company served on the Company on a date note less than 21 days before 7 March 2019?

18 The interlocutory process was heard by the Associate Judge on 20 June 2019. Judgment was handed down on 9 July 2019 and orders were made on 24 July 2019.

19 The Associate Judge answered those questions affirmatively, finding that the Demands are presumed to have been effectively served on the fourth working day after they had been posted, pursuant to s 29(1) of the Acts Interpretation Act 1901 (Cth) (AIA Act) and s 160(1) of the Evidence Act 2008 (Vic), which was Wednesday, 23 January 2019.[5] The Company could not establish, on the balance of probabilities, non-delivery of the Demands to its registered office which would displace the presumption of service.[6]

20 By Notice of Appeal dated 7 August 2019, the Company challenges these findings. The Company submits his Honour took into account irrelevant considerations that the Company was to bear the default of not having updated its registered address, and his Honour erred in finding on the weight of the evidence, that non-delivery had not been established.

21 The factual circumstances relating to postage and delivery of each Demand is in all relevant respects the same. The question of service of each is dealt with together.

22 The Associate Judge found that the Demands had been properly addressed, prepaid and posted to the registered address of the Company. Pursuant to s 29(1) of the AIA Act, this was sufficient to raise a presumption that the Demands had been served on 23 January 2019. The Company therefore bore the onus of proving non-delivery on the balance of probabilities to displace that presumption.[7]

23 His Honour referred to the fact that the Company had not taken the steps necessary to update the address of its registered office with the records of ASIC. His Honour said:[8]

The defendant submits, and I accept, that Mr Gu was not aware that the registered office had changed. The defendant accepts that Mr Nguyen should have done something about changing the address of the registered office when his firm changed its address. It submits that the defendant should not be blamed because Mr Nguyen did not change the registered office.

The defendant chose to have its registered office at the address of its solicitor. If the solicitor of the defendant omitted to change the address of the office, that should not be at the expense of the plaintiff. I accept that there is an element of risk on serving a statutory demand by the ordinary course of post, but that is a method of service prescribed by the Act and the plaintiff was entitled to rely on ASIC records showing that the registered office was at 60 Eastern Road, South Melbourne, Victoria, 3205. I do note that Mr Nguyen redirected mail addressed to his firm on 11 September 2018. The statutory demand was not posted until 17 January 2017. The defendant had four months to change the registered address and failed to do so.

24 However, his Honour made clear that the Company's failure to update the ASIC register to reflect its current registered office was not determinative of the question of delivery. The Associate Judge made an assessment, on the basis of the evidence before him, to the effect that he could not be satisfied of non-delivery:[9]

The defendant submits that the issue of fairness is not to the point and that the issue before the Court is the factual question of whether the demand was delivered to the registered office or, alternatively, to the office of the diversion address. The onus is on the defendant to prove non-delivery. It cannot do that. The building where the registered office was no longer exists, but there is no evidence that the document could not have been delivered to the site. Even more telling is that the statutory demand and the second statutory demand were not returned undelivered to Hunt & Hunt.

25 The Associate Judge referred to the mail redirection and said the following:[10]

In Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill ('Scope Data'), White J held that s 160 of the Evidence Act 1995 (NSW) does not create a presumption as to the time a letter addressed to a street is delivered to a post office, if the mail is diverted to a post office box for collection. He stated that delivery to a post office box cannot be equated with delivery to a company's registered office.

Ferguson J (as she then was) in Formosa House Pty Ltd v Ming Chien Chang, said:

Many of those authorities were referred to and analysed by White J in the Scope Data case. I respectfully agree with his Honour's analysis of those earlier authorities and agree with his conclusion that delivery to a post office box cannot be equated to delivery to the registered office of the company. Nor is delivery to and retention at the post office the equivalent of service on the registered office.

The defendant submits that the arrangement in place between Australia Post and Mr Nguyen by which mail was diverted to Mr Nguyen's home address does not constitute delivery to the registered office. The defendant says it is entitled to rely upon non-delivery of the statutory demand to the registered office where there has been a mail diversion.

The two statutory demands were addressed as follows:

AXF Group Pty Ltd (ACN 116 258 130)

Asia Pacific Lawyers Pty Ltd

60 Eastern Road

SOUTH MELBOURNE VIC 3205

Mr Nguyen has given evidence that at his home address he has received two letters from Hunt & Hunt. He received an affidavit of service of the originating process, which was sent by post on Tuesday 2 April 2019 at 5.00pm. On or about Thursday 11 April 2019 he received another letter from Hunt & Hunt dated 1 April 2019 which enclosed other documents relating to this proceeding. He has given evidence that he did not received the two statutory demands nor a letter posted on 15 March 2019 at 5.00pm containing the originating process to wind up the defendant, an affidavit in support and exhibits, and a sealed consent of a liquidator. It is odd that he would receive two documents which are of no consequence but three very important documents were not received.

Mr Nguyen gave evidence that when he redirected the mail he listed five entities on the application to redirect mail which were covered by the application for redirection. They did not include the defendant. Mr Nguyen also gave evidence that between 17 and 31 January 2019 he personally collected mail each business day from the letterbox at his home, and during this time the statutory demands were not delivered to his home. I am not convinced on the balance of probabilities that all mail was redirected. This in my view supports that not all mail was diverted.

If the mail was diverted then in my view it is incumbent on the defendant to amend the records with ASIC. It has failed to do so, and did not amend the records until 13 June 2019. It should bear the consequences.

26 The Associate Judge concluded that the Company had not demonstrated non-delivery of the Demands to its registered office.[11] The presumption of service was, therefore, not displaced.

27 The grounds of appeal are set out below. In considering whether or not the Company had established on the balance of probabilities that the Demands had not been delivered to the Company's registered office, it was submitted that his Honour:

(a) wrongly took into account the irrelevant consideration that 'if the solicitor of the defendant omitted to change the address of the office, that should not be at the expense of the plaintiff';[12] (Ground 1)

(b) wrongly took into account the irrelevant consideration, or alternatively wrongly concluded as a matter of law that 'if the mail was diverted then in my view it is incumbent on the defendant to amend the records with ASIC' and that the Company 'should bear the consequences' of not having done so until 13 June 2019;[13] (Ground 2)

(c) wrongly considered that there was no evidence that the Demands could not have been delivered to the building site which was at the address of the Company's registered office;[14] (Ground 3)

(d) failed to give adequate reasons for his conclusion that the Company had failed to establish that the Demands were not delivered to the Company's registered office;

(e) further to (d) above, failed to identify whether or not he considered that service of the Demands by delivery of them by Australia Post to the diverted mail address would have constituted effective service of the Demands;[15] and (Ground 4)

(f) erred in law in finding, against the weight of the evidence that the Company had not proved non-delivery of the Demands. (Ground 5)

28 The central question, the Company submitted, is whether the Demands were not delivered to the registered office of the Company at 60 Eastern Road on a date before 13 February 2019.

29 The Company relies on Scope Data Systems Pty Ltd v Goman (Scope Data).[16] It was submitted, that before his Honour there was evidence as to the mail redirection and that his Honour accepted the evidence that the Company had no part in the decision to redirect the mail. Consistent with Scope Data, the use of mail redirection by Asia Pacific Lawyers was irrelevant to the question of non-delivery. It would, it was submitted, only be a relevant consideration if the Court had evidence that the Demands were in fact received at the redirection address which, it was submitted, there is none.

30 The Company referred to the following matters, facts and circumstances, which it was submitted, established non-delivery on the balance of probabilities:

(a) The Company's registered office in January and February was 'Asia Pacific Lawyers Pty Ltd 60 Eastern Road, South Melbourne, VIC 3205'.

(b) The Company's registered office had in fact been at the office of Asia Pacific Lawyers Pty Ltd, at 3 different addresses, since August 2008.

(c) On approximately 11 September 2018, Asia Pacific Lawyers moved out of the premises which it had until then occupied at 60 Eastern Road.

(d) The office building at 60 Eastern Road was demolished for a property development in November 2018. As at January 2019, the property was a vacant site, protected by temporary safety fencing on its boundaries. There was no one working at the site in January 2019. There was no letter box located on the site into which mail could be deposited, in January and February 2019.

(e) On or about 11 September 2018, Mr Nguyen arranged with Australia Post to redirect all mail sent to 60 Eastern Road and addressed to Asia Pacific Lawyers to his personal home address of Heath Street, Port Melbourne.

(f) From 11 September 2018 onwards, including during the period from 17 to 31 January 2019, Mr Nguyen received at his home various items of redirected mail.

(g) However, neither of the Demands were delivered to Mr Nguyen's home.

(h) None of Mr Nguyen's firm's clients, nor anyone his firm has been dealing with, had ever suggested to him that mail addressed to his firm at 60 Eastern Road since September 2018 had not been effectively redirected or received by Mr Nguyen at Heath Street - other than in the case of the Demands, and the originating process said to have been served by post.

31 There are, it was submitted, a number of 'inferential possibilities' as to where the Demands could have been delivered. The Demands may have been delivered to properties adjacent to the registered office or redirection address. In a scenario where there is no direct evidence as to where the Demands have ended up, the critical question asks which possibility is most likely. Any of the possibilities put forward by the Company are, it was submitted, more likely than the Demands having been delivered to a vacant lot surrounded by temporary fencing.

32 The plaintiff submits that, as an appeal, it is incumbent on the Company to establish error in the reasoning of the Associate Judge, and as an appeal based upon errors of fact, the Company bears, it was submitted, a heavy onus. The Company is unable to discharge that onus.

33 It is incumbent on the Company it was submitted, to establish that it was more likely than not that the Demands had not been delivered to the registered office. The Company has not adduced evidence in support of the alternative possibilities of where it is said that the Demands had been delivered to, or of the apparent impossibility of the Demands being delivered to the registered office.

34 The plaintiff submitted that the mail redirection does not assist the Company, for it did not cover mail addressed to the Company, but rather only mail addressed to its solicitors at 60 Eastern Road. While some mail had been delivered to the redirection address, the Demands had not been.. The plaintiff relies on authorities to the effect that the Court should ignore the mail redirection, for it is not a matter that a creditor ordinarily has notice of.[17]

35 It is, it was submitted, the company's responsibility - not that of creditors - to update its records with ASIC if the building at the registered office is demolished, so mail can continue to be sent by post to the registered office address shown on ASIC's records. This is, it was submitted, relevant to the Company's ability to adduce proof to the contrary, so as to displace the presumption raised by s 29(1) of the AIA Act.

36 The plaintiff further submits that Scope Data is distinguishable. First, in that case, the company was not at fault whereas here there is a failure by the company to update the ASIC records about a change of its registered office. Secondly, in that case, the defendant proved when the demand was actually delivered to its registered office.

37 The appeal is governed by r 16.5 of the Supreme Court (Corporations) Rules 2013 (Vic) which adopts rr 77.06.1 to 77.06.9 of the Rules with any necessary modifications. The appeal proceeds by way of re-hearing, making it necessary for the applicant to show error (either of law or of inferences that were not open to be drawn from evidence) on the part of the Associate Judge.[18]

38 The Company also submits that the Associate Judge took into account irrelevant considerations. In order to be successful, the Company must establish that those considerations led the Associate Judge to an erroneous conclusion, or in other words, were determinative or influential in respect of a conclusion the Associate Judge would not have otherwise reached.

39 The Demands were posted to the registered office of the Company. The plaintiff gave uncontradicted evidence that the Demands were sent by its solicitors, Hunt & Hunt, in separate envelopes by ordinary post at 5:00 pm on 17 January 2019, to the Company's registered office, at Asia Pacific Lawyers, 60 Eastern Road. Section 109X(1)(a) of the Act provides that a statutory demand may be served in this manner.

40 Section 29 of the AIA Act provides that service of a document is deemed to be effected if the letter is properly addressed, prepaid and posted, and unless the contrary is proved, to have been delivered at the time in which the letter would be delivered by the ordinary course of post:

Meaning of service by post

(1) Where an Act authorises 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 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.

41 The Demands were, in accordance with s 109X of the Act, and s 29(1) of the AIA Act, properly addressed, prepaid and posted to the registered address of the Company. Evidence of these matters is sufficient to raise the presumption. The Associate Judge was correct in holding that service had been presumed to be effective four days after the Demands had been posted on 17 January 2019. Service is presumed to have taken place on Wednesday, 23 January 2019.[19]

42 The relevant authorities make clear that the Company bears the onus of establishing 'proof to the contrary'. The Company does this by proving non-delivery of the Demands to the premises to which they were addressed (the registered office) or actual delivery to some other address (here, the redirection address). If non-delivery of the Demands is proven, the presumption does not apply and proof of non-delivery is effective as proof of non-service. If actual delivery to some other address is established, the sender must establish service without relying upon s 29(1), that is, by establishing, for instance, the Demands had been physically delivered at a later time by a company employee from the redirection address to its registered office. However, if there is only proof that the Demands have not been received by the Company, the presumption is not displaced and service has been effective according to s 29(1).[20]

43 A question raised by this appeal asks what the position is at law when mail is addressed to a street address (which is a company's registered office) but subject to an arrangement for the redirection of mail to a different address, and there is no evidence of actual delivery to that address to which mail was redirected.

44 In this case, Mr Nguyen arranged for mail addressed to Asia Pacific Lawyers at the previous registered office, 60 Eastern Road, to be redirected to his home address at Heath Street. However, the mail redirection did not cover mail addressed to the Company. It only referred to his firm and other entities for which Mr Nguyen acted.[21] There was no evidence before the Associate Judge relating to what happens with mail posted to an address, for which a mail redirection is in place, but addressed to an entity who is not listed in the mail redirection.[22]

45 Nonetheless, the Associate Judge found that it was at least partially effective, as some letters relating to the Company and this proceeding were delivered to, and had been received by, Mr Nguyen at the redirection address. However, the Demands were not delivered there.[23] There is no reason to disturb this finding.

46 Various authorities have discussed the legal effect of a mail redirection on the question of service of a statutory demand, but because there has been no delivery, they are not directly on point in this appeal.

47 In Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (Falgat),[24] a payment schedule was sent by post to the company's registered office (a residential address) and then redirected to a post office box. The payment schedule was also delivered by a courier to the company's street address. Hunt AJA (with whom Handley JA agreed) held that although the company was entitled to prove that the payment schedule was delivered at the registered office at a different time from when it would have arrived in the ordinary course of post (as presumed by s 29(1) of the AIA Act), it did not prove this by establishing when it arrived at the redirected destination of the post office box. Hodgson JA was of the opinion that if there is evidence that the document arrives at the registered office, then service is effected at the time of arrival at that address. However, where delivery to the registered office is precluded because the mail has been redirected, then in his Honour's opinion (with which Hunt AJA and Handley JA did not agree) the time of service is no later than when the document arrives at the address to which it was redirected.

48 In Scope Data, White J identified that their Honours had not been referred to earlier decisions dealing with service by post where mail redirections had been put in place. In that case, a statutory demand had been sent to the defendant by post to its registered office, which was the premises of the defendant's accountants. The accountants had arranged with the post office for all mail to the firm's street address to be redirected to a post office box which they maintained. The accountants would collect the mail and take it back to their office (the registered office of the company). The statutory demand was, accordingly, sent to the registered office and then redirected and placed in the post office box. Justice White held that the demand was delivered to the registered office (and therefore, served) when it was taken from the post office box by the accountants back to the registered office.

49 White J distinguished the case before him from Falgat, as in that case it was the company that arranged for (and had knowledge of) the redirection of its mail to the post office box. In Scope Data, the redirection of mail from the company's registered address was arranged by the accountants and the post office, and not by the company. This is the situation here. As both the Associate Judge and I accept, Mr Gu was not aware that the registered office had changed nor of the redirection of mail that had been arranged.[25]

50 The Company relies upon the following passage of White J in Scope Data:[26]

In Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259, the majority of the Court of Appeal held (at [1], [67]) that whilst a company served under s 109X of the Corporations Act is entitled to prove that the document arrived at its registered office at a different time from that if it had been delivered in the ordinary course of post, it does not do so:

... by proving that [the document] arrived at the address to which it had diverted its mail at a different time from that on which the document would have been delivered to its registered office in the ordinary course of post. (Emphasis added).

It is unfortunate that their Honours were apparently not referred to, and did not refer to, the relevant authorities, including that of the present Chief Judge in Equity, which are inconsistent with this conclusion. However, that is beside the point.

This passage forms part of the ratio decidendi of the Court's decision and is binding on me. The Court of Appeal held that the payment schedule in that case was "provided" to the claimant within time because it had been served within time, and service constituted "provision". One of the ways in which it was held that the schedule had been served was by being posted to the claimant's registered office. The view of Handley JA and Hunt AJA that it was not open to the claimant to dispute that the schedule had been delivered in the ordinary course of post because it had diverted its mail to a post office box, was a necessary part of their Honours' reasoning that the claimant had been served in time by the schedule having been posted to it at its registered office. It is irrelevant that this was not an issue the Court needed to decide because the claimant had been unquestionably served in other ways. The point was decided (Jacobs v London County Council [1950] AC 361 at 369).

Because Handley JA and Hunt AJA gave no reasons for the conclusion in the last sentence of para [67] in Falgat Constructions, it should not be construed more widely than the terms in which it is expressed. That is to say, their Honours' conclusion applies to a case where it is the company being served which diverted its mail. I do not consider that their Honours' conclusion applies where it is not the company which diverts mail addressed to its registered office, but the firm occupying that office which does so.

It may be that their Honours had in mind that a company which diverts its mail would be estopped from relying on the exception to s 29(1) of the Acts Interpretation Act permitting proof to the contrary. If that is the underlying reasoning, it may have no application where the company had no part to play in the decision to divert mail addressed to the registered office to a post office box. Nor do abstract notions of fairness suggest that a company, which was not a party to such a decision, should be prevented from saying that a document was not delivered to its registered office when in fact it was not. A person who relies on the post as a means of service takes the risk that the document will not be delivered in the ordinary course of post, or that delivery in the ordinary course of post will take longer if the mail goes through a post office box than if it is delivered directly to the street address.

There was no evidence that the plaintiff was a party to the arrangements made by Tattam & Co with Australia Post to divert mail addressed to its office to the post office box. The plaintiff is entitled to prove that the statutory demand was not served by being delivered by Australia Post to its registered office in the ordinary course of post. It is entitled to prove when the demand was delivered to its registered office. This is consistent with the decision of the Full Court of the Supreme Court of South Australia in Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd [2005] SASC 48; (2005) 188 FLR 373.

51 Scope Data is not authority for the proposition that the existence of a mail redirection (absent proof of delivery to the address listed on the mail redirection) arranged by someone other than the company and of which the company is unaware of or did not authorise, forms 'proof to the contrary' that a document was delivered to its intended postal address for the purpose of 29(1) of the AIA Act. The existence of a mail redirection may provide the foundation for a hypothesis of an alternative address to which mail may have been redirected; but its existence does not establish that the mail was delivered that address.

52 As White J explained, a company that receives a statutory demand delivered to an address other than its registered office is estopped from relying upon the exception contained within s 29(1) where they had arranged to redirect their mail to that other address.[27] However, where the company did not know of or arrange the mail direction, it is not estopped from adducing evidence that the demand had been delivered to that other address. In this second scenario, the Company does not adduce 'proof to the contrary' by adducing proof of the mere existence of a mail redirection. Where s 29(1) applies, it is essential to show non-delivery to the registered address or actual delivery to the redirection address (or some other address). The mere possibility, without proof, that the demand might have been delivered to the redirection address (or some other address) will not suffice to displace the presumption in favour of the statutory demand having been delivered to the registered office. Were it otherwise, the Court would be presuming (or, speculating) the fact of delivery to an address other than its registered address from the fact of the existence of a mail redirection. It would cast the onus of proving delivery back onto the sender, contrary to the policy and terms of s 109X of the Act and s 29(1) of the AIA Act.

53 In Scope Data, and Formosa House Pty Ltd v Chang (Formosa House),[28] referred to below, the situation was that there had been delivery to the alternative address.[29] On this basis, they are distinguishable from the present scenario.

54 In Formosa House, Ferguson J (as her Honour then was) discussed Falgat and Scope Data. In that case, the plaintiff sent a statutory demand to the company by post to its registered office. Unlike the present case, the demand was delivered to the post office to which it had been redirected, where an employee of the company physically collected it. Her Honour held that the demand had been served when it was collected from the post office by the employee and then delivered to the registered office. Her Honour said:[30]

Many of those authorities were referred to and analysed by White J in the Scope Data case. I respectfully agree with his Honour's analysis of those earlier authorities and agree with his conclusion that delivery to a post office box cannot be equated to delivery to the registered office of the company. Nor is delivery to and retention at the post office the equivalent of service on the registered office.

If there is evidence of when a document is delivered to the registered office of a company (whether by post or otherwise) then the time of service is the time of delivery at that address and the presumption in s 29 has no application. This is because the s 29 presumption only deems delivery in the ordinary course of post "unless the contrary is proved", or, in other words, unless actual delivery or non-delivery to the address is proved. If there is no evidence of actual delivery or non-delivery, then the presumption will apply and the item will be deemed to be delivered in the ordinary course of post. The ordinary course of post is a matter for evidence. If there is no evidence in this regard, then s 160 of the Evidence Act 2008 (Vic) assists. That section establishes the presumption (in the absence of evidence sufficient to raise doubt about the presumption) that mail sent within Australia is received on the fourth working day after having been posted. Working days exclude weekends and public holidays. Section 160 also assists in circumstances where there is evidence that the item was not delivered in the ordinary course of post, but there is no evidence of when it was delivered. (emphasis added)

56 As her Honour identified, and I adopt, where there is no evidence of actual delivery to an address other than the registered office the s 29(1) presumption continues to apply, with the effect that it is incumbent on the Company to establish non-delivery to the registered office address, or some other more likely possibility than delivery.

57 The Company submitted that it was not necessary for the Associate Judge to infer that not all mail had been redirected or that some documents, but not the Demands, had been collected by Mr Nguyen from the redirection address.[32] However, I do not agree. It was necessary for the Associate Judge to have found (and such findings were entirely open) that the Demands were not delivered to the redirection address and Mr Nguyen had not received them there, for then the factual scenario would have been similar to that of Scope Data or Formosa House. As there was no actual delivery to the redirection address, the presumption under s 29(1) is not displaced, and the existence of the mail redirection becomes irrelevant. As there was no delivery, it is unnecessary to consider whether delivery to the redirection address would have constituted effective service. In other words, Ground 4 of the appeal need not be addressed.[33]

58 In this regard, I accept that Scope Data and Formosa House are distinguishable and of no application to a scenario where there is no evidence as to when or where the documents were actually delivered. They are of course entirely relevant where there has been delivery and the question is one of timing. The mail redirection does not assist the Company.

Non-delivery of the demand to the registered office

59 The critical question is whether the Company can establish, on the balance of probabilities, that the Demands were not delivered to the registered office on a date before 13 February 2019. I am not satisfied that the Company has established this.

60 The Company sought to characterise the Associate Judge's consideration of the Company's obligation to amend and maintain up-to-date records of its registered office as irrelevant or erroneous to this inquiry. This is the subject of Grounds 1 and 2. Although such considerations may not be directly relevant to the critical enquiry, as foreshadowed, I do not think such consideration or comment was in any way determinative of the Associate Judge's decision.[34]

61 It is for a company or its agents to maintain adequate records with ASIC. Creditors are entitled to expect that documents posted to a company's registered office (and subject to any instances of misdelivery) have been effectively served on the company. Strangers to the company are not privy to information beyond that disclosed by the ASIC register and are not obliged to make further inquiries as to current addresses or mail redirections which have been arranged either by the company or its agents. This is the policy basis which underpins the ability for a person to serve a company pursuant to s 109X of the Act and upon which a presumption of service arises under s 29(1) of the AIA Act. It is also the reason why presumed service under s 29(1) is concerned with (and displaced by) delivery and not receipt of a document.

62 In von Risefer v Mainfreight International Pty Ltd (von Risefer) the Court of Appeal (Ashley JA and Beach AJA agreeing) said:[35]

It is important that a party wishing to serve a document on a company be able to rely upon details of the company's registered office in records maintained by ASIC. It is a company's obligation to maintain a satisfactory address. If things were otherwise, as Santow J stated in FP Leonard Advertising Pty Ltd v KD Travel Service Pty Ltd -

... the evident legislative intent ... to provide an official public address for service would be defeated if a company could flout its obligations by simply failing to notify any change of that office. A resourceful and dishonest company could thus easily avoid service of documents and escape unwanted litigation by simply, "decamping" from the registered office without leaving a trail.

There is more than one way in which a company might fail to ensure that ASIC records of its registered office were up to date. It might simply move address and fail to keep ASIC informed - whether deliberately or carelessly. Again, as may well have occurred here, its directors might fail to keep themselves informed as to the registered office of the company's accountant, that address being in turn the registered office of the company.

Consistently with what Santow J said in FP Leonard, in any of those circumstances service of a document able to be served on the registered office of a company will be good service if service is averred - provided that the essential facts stated in the averment are not impugned.

63 However, the Court recognised that this overarching policy consideration does not transgress or overcome the essential question of fact relating to proof of non-delivery.[36] In the same vein, in Partners of Piper Alderman v Sharjade Pty Ltd, Barrett J said:[37]

Another relevant principle, however, is that stated with Basten JA with whom Ipp JA agreed in Deputy Commissioner of Taxation v Meredith (2007) NSWCA 354; (2007) 229 FLR 243. His Honour was discussing s 29 of the Acts Interpretation Act 1901 (Commonwealth), which is in relevant respects the same as s 109X(1)(a) of the Corporations Act . Basten JA said at [76]:

Section 29 in effect imposes on the intended recipient responsibility for ensuring that the document does not go astray after delivery to the postal address.

And I emphasise the words "after delivery to the postal address." (emphasis added)

64 In other words, a company cannot rely upon the fact that it has not received a statutory demand if it has moved addresses and the statutory demand has been delivered to its previous registered office, if that previous address remains on the ASIC register. It bears the consequences of non-receipt for it is the maker of its own misfortune. However, the company is still entitled to dispute whether the statutory demand was successfully delivered to its previous registered office. Failing to amend its registered office with ASIC, while imprudent, has no bearing on this factual issue. A document is either delivered to an address or it is not. This is the critical issue that his Honour was required to and did deal with.

65 The Associate Judge did not find, as the Company effectively submits, that the Demands had been served on basis of some erroneous discretionary consideration or finding that the Company should bear the consequences of its failure to amend its records with ASIC. The Associate Judge considered the critical factual question raised by this appeal - whether the Company had established non-delivery. It had not. In support of this finding, the Associate Judge referred to the following two matters:[38]

(a) while the building that housed the registered office no longer exists, no evidence was adduced to support the contention that the document could not have been delivered to the registered offices; and

(b) neither of the Demands were returned undelivered to Hunt & Hunt.

66 In my opinion, the Associate Judge was entitled to rely upon the first matter to hold that the Company failed to prove that it was more probable than not that there had not been delivery.[39] Further, the Associate Judge was correct to consider the second matter as evidence in support of an ultimate evaluation and conclusion that it was more probable than not that delivery occurred in the particular circumstances of this case.

67 It is convenient to consider the significance of the fact that the Demands were not returned undelivered first. In von Risefer, the Court went on to say:[40]

So, if a person avers that service of a document has been effected by post at the registered office of a company as stated in ASIC records, and if there is nothing which clearly demonstrates that the intended service has missed its target - return of an envelope containing the document with a notation "return to sender", or "not known at this address" would of itself be, I think, merely equivocal - service will be good under s 109X (1)(a) of the Corporations Act notwithstanding that the premises to which the letter was addressed are no longer in fact the registered office of the company. ... (emphasis added)

68 In A/S Cathrineholm v Norequipment Trading Ltd (A/S Cathrineholm),[41] the plaintiffs sent a writ by letter to the registered office of the defendants' registered office. The company had moved its office, put in place a mail direction, but had not notified the companies' registrar of its change of address. The plaintiffs signed a judgment in default of appearance and sent it to the same address. The premises of the registered office had been vacated and handed over to demolition contractors at the time it would have been delivered. The Court of Appeal (Lord Denning MR, Roskill LJ and Sir Gordon Willmer) held that service by post had been effective. Lord Denning observed the following:[42]

By July 22, when the postman arrived with the letter, the premises were derelict; the windows were broken and boarded up, the letter-box had been removed; and there was a pneumatic drill working outside the door. We do not know what the postman did with the letter. Perhaps he threw it away. At any rate, it was not returned through the dead letter office to the plaintiffs.

69 His Lordship cited the decision of Salmon LJ in London County Quarter Sessions Appeals Committee, Ex parte Rossi, where the Lord Justice said:[43]

To sum up, when service of process is allowed by registered post, without more being said on the matter, then if the letter is not returned, it is assumed to have been delivered in the ordinary course of post ...

Accordingly, when the plaintiff sends a copy of the writ by prepaid post to the registered office of the company, and it is not returned - and he had no intimation that it has not been delivered - it is deemed to have been served on the company ...

71 In Fancourt v Mercantile Credits Limited (Fancourt), the High Court (Mason, Murphy, Wilson, Deane and Dawson JJ) emphasised after referring to s 39(1) of the Acts Interpretation Acts 1954 to 1962 (Qld), which is analogous to s 29(1) of the AIA Act, that:[45]

In the present case, the notices were not returned undelivered and there was no other circumstance which suggested that they did not reach their destination. Hence under s 39(1)(b) service is deemed to have been effected at the time when the notices would have been delivered in the ordinary course of the post.

72 These factual scenarios are distinct from that which arose in CGU Workers' Compensation (Victoria) Ltd v Carousel (CGU Workers Compensation).[46] In that case a statutory demand was addressed to the company's solicitors at an address in Lilydale, Victoria. The envelope was returned by Australia Post to the applicant's solicitors marked "Return to Sender" and "Left Address".[47] This was sufficient, when no other evidence shed light on the issue, to demonstrate non-delivery. Gillard J said:[48]

The evidence with respect to non-delivery is in a small compass. Mr Power, in his affidavit on behalf of [the applicant] swore -

"On or about 8 April 1999 the documents were returned to Purves Clarke Richards by Australia Post marked 'Left Address'.

...

I am satisfied that there is proof of non-delivery.

73 Commonwealth Broadcasting Corporation Pty Ltd v Pacific Mobile Phones Pty Ltd (Commonwealth Broadcasting Corporation),[49] was briefly referred to by the Associate Judge. There, the respondent opposed a winding up application on the basis that the statutory demand had not been served upon it. The respondent was previously located at a premises in Ultimo, New South Wales. Due to major building renovations, it relocated to an address in Broadway, New South Wales. The respondent lodged a Form 484 'Change of Address' with ASIC to change the registered office to the Broadway address. Following the lodgement of the Form 484, but prior to its registration and processing by ASIC, the applicant sent a statutory demand by express post to the Ultimo address which was still at that time its registered office according to the ASIC register. White J said:[50]

The respondent had done all that the corporations' legislation required it to do to register a change of address. Whilst the highest authority recognises that Part 5.4 of the Corporations Act may operate harshly, that is as a consequence of the scheme devised by the legislature to deal promptly with debts incurred by corporations. The presumption of service will operate even if there is no receipt of the documents for it is for the corporation to maintain a satisfactory address but proof of non-delivery to that address will rebut the presumption. I have concluded that there was no delivery of the statutory demand to the respondent at its registered address in Ultimo because of the physical impossibility of doing so.

74 The Company relied upon this case before the Associate Judge to support the proposition that a court may be satisfied that delivery has not been effected if it is physically impossible to deliver the document to the registered office. The Associate Judge distinguished it on the basis that the respondent had done all that the corporations' legislation required it to do to register a change of address. On one reading of the passage quoted above, this was also part of to the reasoning of White J.

75 As discussed above, I do not see how the taking of steps to amend that address is necessarily relevant to the question of delivery. Risks associated with a plaintiff attempting service by post, or with a company not amending ASIC's records are not to the point. Whether or not the address of the registered office has been amended, delivery can still be effected.[51]

76 There is, rather, a fact of critical significance which explains the outcome in Commonwealth Broadcasting Corporation and is consistent with the authorities discussed above_._ That fact is absent here and fatal to the Company's appeal. In that case, like CGU Workers Compensation, but unlike A/S Cathrineholm and Fancourt, there was evidence that the demand had been returned to the applicant undelivered. White J explained:[52]

The statutory demand dated 26 May 2008 was not served upon the registered office of the respondent because it was returned by Australia Post to the sender on 27 May 2008;

...

Bich Ngoc Thi Nguyen, a solicitor employed at Hall Lawyers, deposes that on 27 May 2008 he received an express post envelope addressed to the respondent at Suite 311, 3 Smail Street, Ultimo, New South Wales 2007 marked "Return to Sender" with the box against "Left Address/Unknown" ticked. The options available to the post office authorities on the pro forma "Return to Sender" sticker are "Insufficient Address", "Refused" and "Unclaimed" in addition to the one which was ticked.

77 The Company submits that the impossibility of delivering a postal article to the registered office must lead to the conclusion that the Demands were not physically delivered to that address. There was no further evidence before the Associate Judge of non-delivery. The question is then whether it is legitimate to draw an inference of non-delivery from the fact the registered office was situated on a vacant lot. I am of the view that it is not.

78 The office building at 60 Eastern Road had been demolished for a property development project in November 2018. As at January 2019, the property at 60 Eastern Road was a vacant site, protected by temporary safety fencing on its boundaries. There was no letter box located on the site into which mail could be deposited in January and February 2019. The Company submits that delivery could only have been achieved:

by an employee of Australia Post either throwing the envelopes containing the Demands over the temporary fencing, on to the vacant land on the other side, or attempting to stuff them into whatever holds existed in the temporary safety fencing erected on the boundaries of the site.

79 The Company highlighted the much more likely, it was submitted, 'inferential possibilities' of where the Demands may have ended up. These included different letterboxes or properties adjacent to the registered office or redirection address. The Demands might otherwise have been lost by Australia Post.

80 The Company sought to characterise these possibilities as matters 'which every person has had common experience of', however, equally so, every person has common experience of having walked past a vacant lot to observe an accumulation of mail on the lot. Further, it is perhaps telling that the Company's submissions describe these possibilities as matters of 'common experience', being the language of factual presumptions or subjects of which judicial notice should ordinarily be taken. This highlights the fact that the Company has failed to adduce evidence in support of the possibilities in relation to these matters.

81 There is no evidence conclusively demonstrating where the Demands ultimately ended up. They may well have been delivered to the milk bar neighbouring the registered office. They may have been placed in a hole in the temporary fence and could still remain there today or have later been removed by a passer-by. The mailman may have observed that the lot was vacant and thrown the Demands in the bin. There are a potentially infinite number of possibilities as to where the Demands might have gone, but the Company submits that non-delivery is the most likely factual inference to be drawn out of the conceivable or competing possibilities.

82 However, the Company has not articulated why non-delivery is the most likely inference to be drawn in the circumstances. That is, the Company asserts that non-delivery is impossible and therefore unlikely, but has adduced no evidence to explain why the other competing possibilities are more likely. The Company could have adduced evidence from Australia Post pertaining to their policy and practice of delivering mail to addresses which are now vacant, or the probability of Australia Post of having lost the Demands. An agent of the company could have deposed to having attended the lot to have found no mail at the premises. The Company has not adduced anything that would shed light on the issue.

83 In other words, the Company has not provided the factual foundation that would have permitted drawing an inference that delivery to the registered office was inherently unlikely. There are, simply put, an infinite number of possibilities. Each possible outcome is, on the evidence before the Court, equally likely. In the particular circumstances of this case, the outcome must ultimately depend on who bears the onus of proof. By virtue of s 29(1) of the AIA Act, the Company bears the onus of rebutting delivery by direct evidence or inference from the evidence. It has not done so.

84 Ultimately, the position is as follows. As noted, the Demands did not go to the redirection address. The Company submits that I do not need to be satisfied of where the Demands have been delivered, only that they were not delivered to the registered office. It points to various 'inferential possibilities' of where the Demands may have gone, each of which it submits is more likely than delivery to a vacant lot. The Company has not, however, adduced evidence to support its various hypotheses. There is no evidence of actual delivery to an alternative address, or evidence sufficient to found an inference that delivery to the registered office was improbable. Further, the Demands were not returned to Hunt & Hunt by Australia Post with notations that the Demands were "undeliverable", "returned to sender" or that the recipient was "not known at this address". This is the only evidence in this appeal as to whether or where the Demands were delivered. In light of the authorities discussed above, the absence of a notice from Australia Post marking the Demands as undeliverable is a significant indication as to whether or not delivery has occurred. Fortifying the position of the plaintiff is that they have the benefit of the s 29(1) presumption in their favour. The Company is not permitted to rebut this presumption by reference to 'inferential possibilities' of alternative delivery, or in common parlance, speculation.[53]

85 The Company has not succeeded in rebutting the presumption of service raised by s 29(1) of the AIA Act. No issue was taken on the appeal as to the time of service or the meaning of the 'ordinary course of post'.[54] The Associate Judge found that service was presumed effective on Wednesday, 23 January 2019. There is no reason to disturb that finding.

[1] Xiang Club is the supporting creditor to the winding-up application.

[2] The registered office disclosed by an ASIC search is the Company's Victorian solicitor's previous address. Mr Nguyen's residential address, to which mail was redirected, is referred to in these reasons as the 'redirection address'.

[3] The background, much of which is uncontroversial, is respectfully adopted from the Reasons of the Associate Judge: In the matter of AXF Group Pty Ltd (Unreported, Efthim AsJ, 9 July 2019) (Reasons).

[4] The street number is omitted from these reasons as the address is Mr Nguyen's residential address.

[15] The Demands were not delivered to the redirection address. It is therefore unnecessary to consider this ground or the hypothetical legal position, had the Demands been delivered there. See paragraphs [57] to [58].

[16] [2007] NSWSC 278; (2007) 70 NSWLR 176 (Scope Data).

[17] Bellway Corporation v Ausdrill Ltd (1995) 13 ACLC 1663, 1668 (Owen J); Citystart Pty Ltd v Deputy Commissioner of Taxation [2006] WASC 35 [31] (Master Newnes); Advanced Mining & Civil Pty Ltd v Wescat Plant Hire Pty Ltd [2016] WASC 413 [45]-[46] (Acting Master Stark).

[18] Wilson v Building Commission of Victoria [2015] VSC 629 [8] (John Dixon J) quoted in Oswal v Australia & New Zealand Banking Group [2016] VSC 134 [36] (Sifris J); Efektiv Pty Ltd v Hodge [2019] VSC 636 [9] (Forbes J).

[19] See Evidence Act 2008 (Vic) s 160.

[20] Fancourt v Mercantile Credits Limited [1941] ArgusLawRp 85; (1983) 48 ALR 1, 8 (Mason, Murphy, Wilson, Deane and Dawson JJ) (Fancourt); Formosa House Pty Ltd v Chang [2010] VSC 474 [8] (Ferguson J) (Formosa House).

[22] In other words, the mail redirection form covered Asia Pacific Lawyers. There was no evidence before the Associate Judge which demonstrated that Australia Post would have regard to a redirection to the second addressee (Asia Pacific Lawyers) listed on a piece of mail, if there was no redirection in place for the first addressee (the Company). It is not necessary to resolve this issue.

[24] [2006] NSWCA 259.

[26] Scope Data [2007] NSWSC 278; (2007) 70 NSWLR 176, 198-9 [91]-[96] (White J).

[27] A question raised in passing in this appeal was whether it is necessary for the Company to have authorised the mail redirection, or whether its knowledge of the mail redirection without such authority would be sufficient to raise this estoppel. It is unnecessary to consider this question. The Company did not authorise or have knowledge of the mail redirection.

[28] [2010] VSC 474.

[29] In other words, there was no presumed service according to ordinary postal practises, because proof to the contrary comprised proof of the demands having been redirected to, and received at, an alternate address. They were delivered to the registered office at a later time and that was when service was effected. Service and delivery was proven by the evidence and not by presumption. Those cases are distinguishable, for here, the demand was never delivered to redirection address.

[30] Formosa House [2010] VSC 474 [11] (Ferguson J).

[34] See paragraph [38].

[35] [2009] VSCA 179; (2009) 25 VR 366, 373 [21] (Ashely JA) (von Risefer).

[36] von Risefer [2009] VSCA 179; (2009) 25 VR 366, 374 [21] (Ashley JA).

[37] [2011] NSWSC 6 [15] (Barrett J).

[39] There indeed was no evidence that the Demands could not be delivered or that such delivery was physically impossible. The submission to such effect was pure speculation. Ground 3 much fail. See paragraph [77] onwards.

[41] [1972] 2 Q.B. 314

[43] [1956] 1 QB 682, 694 (Salmon LJ).

[44] A/S Cathrineholm [1972] 2 Q.B. 314, 322 (Lord Denning).

[45] [1941] ArgusLawRp 85; (1983) 48 ALR 1, 7 (Mason, Murphy, Wilson, Deane and Dawson JJ).

[46] [1999] VSC 227; (1999) 151 FLR 270.

[47] Ibid 272 [24] and 274 [38] (Gillard J).

[49] [2008] QSC 210; (2008) 219 FLR 422 (Commonwealth Broadcasting Corporation).

[51] See paragraph [64].

[52] Commonwealth Broadcasting Corporation [2008] QSC 210; (2008) 219 FLR 422 423 [1] and 425 [11] (White J).

[53] Accordingly, Ground 5 is not made out.

[54] See Evidence Act 2008 (Vic) s 160.