CONSIDERATION
33 As set out at [1] above, the only question before the Court is the date of service of the 26 April 2022 Letter which enclosed the Second Statutory Demand and the Greer Affidavit.
34 So far as that question is concerned it was not in dispute, insofar as the 26 April 2022 Letter is concerned, that the matters required to raise the presumption under s 29(1) of the Acts Interpretation Act had been established. That is, the envelope: bore the correct name and address; contained the relevant documents to be served, bore the correct cost of postage; and it was placed in the post: see Chen at [43]. That being so, a presumption arises that service of the 26 April 2022 Letter and its enclosures was effected at the time at which that letter would be delivered in the ordinary course of post, unless the contrary is proved. The ordinary course of post would, unless sufficient evidence to raise doubt about the presumption is adduced, be the day that is seven working days after the 26 April 2022 Letter was posted i.e. 5 May 2022.
35 However, in this case neither party contended for that date as the date for service. Each contends for an earlier date. It was not in dispute that the effect of the parties' respective positions is that Aussie Hoops, which contended that service was effected on 3 May 2022, bears the onus for the purpose of s 29(1) of the Acts Interpretation Act of establishing "proof to the contrary". If it is unable to meet that onus it will follow that, as Solos contended, the date for service must be 4 May 2022, which is the date the 26 April 2022 Letter came to Ms Bohl's attention.
36 Aussie Hoops submitted that, based on the authorities and in particular Chen at [47], service under s 109X of the Corporations Act of a document by posting it to the company's registered office is established, by way of statutory presumption or actual evidence, if the letter was delivered by the postal service to the letter box. It contended that service by post in accordance with s 109X of the Corporations Act does not require evidence that the letter was received in an office or by a person. So much is true. As the High Court observed in Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 97 in considering s 39(1) of the Acts Interpretation Acts 1956 (QLD), which was relevantly in the same terms as s 29(1) of the Acts Interpretation Act, it is "non-delivery" which is significant. That may be different from receipt by the intended recipient.
37 In this case the critical question is: when was the 26 April 2022 Letter delivered to Solos' registered office?
38 Aussie Hoops submitted that the threshold to displace the presumption under s 160 of the Evidence Act is low. It submitted that all it is required to do to displace the rebuttable presumption is to raise doubt and that the material produced by Australia Post did that. Aussie Hoops contended that, accordingly, s 160 of the Evidence Act could be put to one side, leaving s 29 of the Acts Interpretation Act. As to that, Aussie Hoops submitted that as there was no argument that it had satisfied the first limb, deemed service, it only had to address the second limb, namely that, unless the contrary was proved, the 26 April 2022 Letter was delivered in the ordinary course of post. Aussie Hoops submitted there was sufficient evidence before the Court to prove the contrary.
39 Solos submitted that Ms Bohl's evidence demonstrates that the 26 April 2022 Letter was delivered on 4 May 2022. It submitted that Ms Bohl's evidence is inherently plausible and consistent with contemporaneous documents that were generated well before any dispute arose between the parties as to the date of delivery. Solos contended that evidence from external accountants occupying a registered office should be regarded as reliable evidence as to when, or if, a statutory demand has been delivered to a registered office. Solos submitted that the email exchange between Ms Bohl and the building manager (see [17] above) establishes "mismanagement of mail by Australia Post" and demonstrates the Court should exercise caution before placing reliance on records produced by Australia Post.
40 I turn to consider whether Aussie Hoops has established "proof to the contrary" so as to displace the presumption in s 29(1) of the Acts Interpretation Act, having regard to the evidence which is before the Court.
41 Solos' registered office is at Evandale Place, Level 3, 142 Bundall Rd, Bundall QLD 4217.
42 Turning first to the document titled "Track your items - Australia Post". The 26 April 2022 Letter, being the item bearing the Tracking Number, was according to that document:
(1) first processed at "Melbourne Airport VIC" on 28 April 2022 at 9.28 pm;
(2) in transit to "Brisbane Airport QLD" on 28 April 2022 at 9.36 pm;
(3) processed at "Brisbane Airport QLD" on 1 May 2022 at 8.51 pm;
(4) "on board for delivery Bundall QLD" on 3 May 2022 at 9.18 am; and
(5) as set out at [24] above, recorded as "delivered Bundall QLD" on 3 May 2022 at 10.30 am.
43 Aussie Hoops submitted that the tracking history showed the item travelling from Melbourne Airport to Bundall, Queensland. That is so. However, it does not establish delivery at Solos' registered office. It does no more than establish that the 26 April 2022 Letter was delivered to "Bundall, QLD". In my opinion that of itself is not sufficient to displace the presumption in s 29(1) of the Acts Interpretation Act. However, it is sufficient to raise a doubt for the purposes of the statutory presumption in s 160 of the Evidence Act that the 26 April 2022 Letter was received by Solos on the seventh working day after it was posted, 5 May 2022.
44 A similar conclusion was reached in Re Crowe Consulting Pty Ltd (2019) 140 ACSR 450; [2019] NSWSC 1414. There the creditor, referred to as Management, relied on an online search of the Australia Post website, similar to that relied on by Aussie Hoops as proof of delivery. The search showed that the relevant item "was delivered to 'ERINA' on 22 July 2019". In relation to that evidence at [23]-[25] Gleeson J said:
[23] Next, Management relied upon the record of delivery recorded in the tracking receipt issued by Australia Post as proof of the actual date of delivery of the express post envelope containing the demand. Management submitted that the tracking record issued by Australia Post for item "090" proved delivery of the express post envelope to the registered office of the Company on 22 July 2019 at 11.29 am.
[24] In Re Shaolin Temple Foundation (Australia) Ltd at [6], Black J observed with reference to the analysis of Robb J in Futre Developments of Australia Post's contractual provisions in respect of the delivery of mail:
… in a particular case, where evidence of fact is led as to a delay in delivery of mail, and that evidence of fact is accepted, then at least one possible inference will be error or delay on the part of Australia Post, although no doubt other inferences may also be available. … I do not understand his Honour to be suggesting that a tracking receipt issued by Australia Post is determinative, in a manner that displaces other factual enquiry.
[25] Here there is no evidence from any employee of Australia Post that directly proved where and how the express post envelope was delivered. The notation on the Australia Post website does not specify that the express post envelope was placed into the receptacle established at the Company's premises for receipt of articles: see [26] below. And there is no evidence of Australia Post's practice in respect of recording the delivery of express post items or to explain the significance of the reference to "Erina" in the tracking record on which Management relies: In the matter of Edifice Australia Pty Ltd at [12] (Black J).
45 Notwithstanding those limitations about the document in question, Gleeson J was satisfied that the tracking receipt was sufficient to raise a doubt about the statutory presumption in s 160 of the Evidence Act: see Re Crowe at [27].
46 There are two further documents which were produced by Australia Post described at [23(1)] and [23(2)] above. Those documents contain the same information but do not, in my opinion, take the matter any further than the tracking information document. That is they do no more than describe the passage of the 26 April 2022 Letter from Melbourne Airport to the time it was "delivered" at "Bundall QLD" on 3 May 2022. My comments at [43] above apply equally to this evidence.
47 It is next necessary to consider the Australia Post GPS location document which is Annexure A to these reasons. It is tolerably clear, from its title, that Annexure A provides for a GPS location of the item which bears the Tracking Number, namely the 26 April 2022 Letter. To that end, Annexure A also includes a set of coordinates and the address "Evandale Place, 142 Bundall Rd, Bundall QLD 4217". I would infer that they are the coordinates for that address. Those coordinates are also included in the Salesforce Document which is described at [23(4)] above.
48 It might be open to infer from these two documents taken together that the 26 April 2022 Letter was delivered on 3 May 2022 at 10.30 am to the address which is located at the GPS coordinates included in Annexure A and repeated in the Salesforce Document. No evidence has been provided about the meaning of any of the documents produced by Australia Post. For example, insofar as Annexure A and the Salesforce Document are concerned, no evidence has been provided to explain the purpose of Annexure A: is it given to an Australia Post employee to locate the address for delivery of an item; is it generated by the employee responsible for the delivery or another person and so on. Insofar as the Salesforce Document is concerned, similarly no evidence has been given about its purpose and why it was created approximately one month after the event with which it appears to be concerned or about the meaning of some of its content. For example there was no evidence about the meaning of the event type "DD-ER13", which is also a term used in some of the other Australia Post documents which are in evidence. Accordingly, I am not satisfied that delivery occurred on 3 May 2022 based on these documents alone, or in combination with the other documents produced by Australia Post.
49 Aussie Hoops relied on the decision in In the matter of Myao Travel Pty Ltd (2020) 148 ACSR 563; [2020] NSWSC 1219 which also concerned the determination of the date of service of a creditor's statutory demand. As is the case here, the creditor relied on material produced by Australia Post in response to a subpoena to establish that the envelope containing the demand had been delivered to the relevant address on a specified date, rather than relying on the statutory presumption as to time of service. Among the documents produced by Australia Post was a document in the form of Annexure A. The concern raised with that document was that the "pin" appearing on it was located at a neighbouring property and not at the address of the registered office. At [19] Rees J said the following about the document:
The fact that the Google Maps pin appearing on the GPS map sits outside the neighbouring property does not mean that the postal item was delivered to the neighbouring property. The documents produced by Australia Post indicate that the driver was at the location of the Google Maps pin when they activated the device which recorded that the item had been delivered. As mentioned, the Google Maps pin is in the middle of a road. There is no suggestion in the documents produced by Australia Post that it has formed the view at any time that the item of post has been misdelivered to the neighbour. Whilst these things do happen, it is more likely that a mail item correctly addressed to the registered office would be delivered to that address.
50 There was evidence before her Honour from Australia Post explaining how the document in the form of Annexure A was created and, in particular, how the "pin" might have come to be located at the adjacent property. There is no evidence of that nature before me. In Myao Travel the factual issue to be determined, which affected the question of the time of delivery, was whether the demand had been delivered to the address of the registered office or the property adjacent to that address. Here, both parties accept that there was delivery to the registered office but the factual issue to be determined is the date on which that delivery was effected. In Myao Travel the defendant company denied receipt of the demand and contended that the envelope in which it was posted was misaddressed. Here Solos' evidence is that it received the 26 April 2022 Letter on 4 May 2022 (not 3 May 2022). It contended that, given the inconclusive nature of the documents produced by Australia Post, the date of its receipt should be taken to be the date of delivery and thus of service.
51 I accept that considered on their own the documents produced by Australia Post are inconclusive and do not "prove the contrary" for the purposes of s 29(1) of the Acts Interpretation Act. However, those documents must be considered together with the further available evidence about delivery of post to MJG Partnership. When that is done, I am satisfied that Aussie Hoops has "proved the contrary" as required by s 29(1) of the Acts Interpretation Act and has discharged its onus of proving delivery on 3 May 2022. That is because, when considered as a whole, the evidence establishes that:
(1) according to its records Australia Post ceased handling the 26 April 2022 Letter, and delivery was completed on, 3 May 2022;
(2) as I have already observed, it is open to infer and I would infer given the other surrounding facts, that the 26 April 2022 Letter was delivered on 3 May 2022 at 10.30 am to the address which is located at the GPS coordinates included in Annexure A and repeated in the Salesforce Document. I would also infer, having regard to Annexure A, that those GPS coordinates were for Evandale Place, 142 Bundall Road, Bundall, QLD 4217;
(3) it is not in dispute that the 26 April 2022 letter was received by Ms Bohl on 4 May 2022. She cannot recall how she received it, although she does not believe it was hand delivered by Australia Post on that day;
(4) Ms Bohl's evidence is that Australia Post on most occasions delivers mail for MJG Partnership to one of four specified places set out at [13] above. Delivery to level 3 is rare;
(5) the places for delivery are:
(a) the MJG Partnership mailbox, which is checked twice per week. As the 26 April 2022 Letter was not addressed to MJG Partnership but to the street address simpliciter, I would not comfortably infer that the letter was delivered to the MJG mailbox on 3 May 2022;
(b) the P.O. box, but, as the 26 April 2022 Letter was not addressed to the P.O. box, the parties were agreed that it has no relevance;
(c) on the building lobby's desk; or
(d) in a mailbox labelled "other tenants" which is also cleared twice per week; and
(6) given the methods set out above and Ms Bohl's evidence that the 26 April 2022 Letter was not hand delivered, I would infer that it was delivered either to the building's lobby desk or the "other tenants" mailbox on 3 May 2022.
52 MJG Partnership had a system in place for the "safe and secure reception of documents delivered by post" which involved more than one possibility for the delivery of postal items. In short, I am satisfied that it is more probable than not that the 26 April 2022 Letter was delivered on 3 May 2022 to one of two places identified by Ms Bohl (set out at [51(5)(c)-(d)] above) for the delivery of mail and that service was effected on that date. That it may not in fact have been delivered to level 3 does not alter my conclusion given Ms Bohl's evidence that there are a number of ways by which Australia Post achieves delivery at the office of MJG Partnership (see [13] above).