John Hawkins Real Estate (Holdings) Pty Ltd and ors v Cassaniti [2002] NSWSC 1212

New South Wales Supreme Court

CITATION : John Hawkins Real Estate (Holdings) Pty Ltd and ors v Cassaniti [2002] NSWSC 1212 revised - 5/03/2003 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3312/02; 3313/02; 3314/02 HEARING DATE(S) : 9 October, 5, 14 November 2002 JUDGMENT DATE : 17 December 2002

John Hawkins Real Estate (Holdings) Pty Limited (Plaintiff 3312/02) PARTIES : Pan.Min Developments Pty Limited (Plaintiff 3313/02) 8 Tosari Pty Limited (Plaintiff 3314/02) Sam Peter Cassaniti, trading as Cassaniti & Associates (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : J.Johnson (Plaintiffs) P. Barham (Defendant) SOLICITORS : Dibbs Barker Gosling Lawyers (Plaintiffs) Mark Rumore Solicitors (Defendant) CATCHWORDS : Corporations - Statutory demand - Application to set aside - Service by post - Date of service of demand - Whether application has been made within prescribed period - Whether there is a genuine dispute as to existence of debt. LEGISLATION CITED : Corporations Act 2001 Evidence Act 1995 DECISION : (1). I make orders as sought in prayers 1 and 2 in the originating process. (2). The exhibits may be returned.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 17 December 2002

3312/02 JOHN HAWKINS REAL ESTATE (HOLDINGS) PTY LIMITED -v- CASSANITI

3313/02 PAN.MIN DEVELOPMENTS PTY LIMITED -v- CASSANITI

3314/02 8 TOSARI PTY LIMITED -v- CASSANITI JUDGMENT 1 MASTER: These three proceedings were heard sequentially. 2 In each proceeding the Plaintiff seeks to set aside a statutory demand served upon it by the Defendant. 3 By originating process 3312 of 2002, filed on 25 June 2002, John Hawkins Real Estate (Holdings) Pty Limited (to which I shall refer as "John Hawkins Real Estate") seeks to set aside the statutory demand dated 30 May 2002 served upon it by Sam Peter Cassaniti, trading as Cassaniti & Associates (who is the Defendant to the proceedings). By that demand the Plaintiff claimed the sum of $5,060, being the amount of the debt described in the schedule to that demand, as follows, Amount of moneys due and payable by the company to the creditor for cost of managing taxation affairs and other accounting matters as at 10 January 2002 $5,060 4 By originating process 3313 of 2002 filed on 25 June 2002 Pan.Min Developments Pty Limited (to which I shall refer as "Pan.Min") seeks to set aside the statutory demand dated 30 May 2002 served upon it by Sam Peter Cassaniti, trading as Cassaniti & Associates (who is the Defendant to the proceedings). By that demand the Defendant claimed the sum of $5,005, being the amount of the debt described in the schedule to that demand, as follows, Amount of moneys due and payable by the company to the creditor for cost of managing taxation affairs and other accounting matters as at 10 January 2002 $5,005 5 By originating process 3315 of 2002 filed on 25 June 2002 8 Tosari Pty Limited (to which I shall refer as "8 Tosari") seeks to set aside the statutory demand dated 30 May 2002 served upon it by Sam Peter Cassaniti, trading as Cassaniti & Associates (who is the Defendant to the proceedings). By that demand the Defendant claimed the sum of $6,050, being the amount of the debt described in the schedule to that demand, as follows, Amount of moneys due and payable by the company to the creditor for cost of managing taxation affairs and other accounting matters as at 10 January 2002 $6,050 6 Each of the proceedings is brought pursuant to the provisions of Part 5.4 Division 3 of the Corporations Act. In each case the Plaintiff asserts that there is a genuine dispute as to the existence of the debt alleged in the statutory demand, and that, in consequence, the demand must be set aside pursuant to section 459H of that statute. The Defendant, however, asserts that proceedings 3312 of 2002 brought by John Hawkins Real Estate and proceedings 3313 of 2002 brought by Pan.Min Developments were not instituted within the twenty-one day period required by section 459G(2) of the Act, and that, in consequence, the proceedings must be dismissed (consonant with the decision of the High Court of Australia in David Grant & Co. Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265). 7 The Defendant did not dispute that proceedings 3314 of 2002 brought by 8 Tosari Pty Limited had been instituted within time. 8 It is appropriate, therefore, that I should firstly in the proceedings instituted by respectively John Hawkins Real Estate and Pan.Min Developments deal with the foregoing assertion on the part of the Defendant that the proceedings were not instituted within the twenty-one day period required by section 459G(2) of the Act. If the Defendant is successful in establishing that the proceedings were not instituted within that period, then that is the end to each of proceedings 3312 of 2002 and 3313 of 2002, and it will not be necessary for the Court to proceed to a consideration of the question of whether or not there is a genuine dispute as to the debt asserted in the statutory demand served upon each of John Hawkins Real Estate and Pan.Min Developments. 9 At the outset of the hearing on 9 October 2002 the Defendant relied upon the notice to admit facts dated 12 September 2002 which had been served by the Defendant upon the Plaintiff in each of those two proceedings, and the admission consequent upon the failure of each such Plaintiff to respond to that notice. 10 After receiving evidence (including oral evidence from the solicitor for the Plaintiff), I granted to the Plaintiff leave (pursuant to Part 18 rule 5(3) of the Supreme Court Rules) to withdraw the admission consequent upon the failure of the Plaintiff to respond to that notice to admit facts (pursuant to Part 18 rule 5(2)), and made certain directions concerning the further progress of the proceedings. 11 When the hearing resumed on 5 November 2002 it was necessary that I should first deal with the question of whether the proceedings were instituted within the twenty-one day period to which I have already adverted. 12 It was not in dispute that if the demand was served on or before 4 June 2002 the proceedings were brought out of time, and that, in consequence, the proceedings, not having been constituted in accordance with the statutory regime prescribed by section 459G of the Corporations Act, must be dismissed. It was also not in dispute that if, as asserted by each of those Plaintiffs, the demand was served on 5 June 2002, the proceedings were instituted within time. 13 The issue between the parties was in respect to the timing of the service of the statutory demand. (There was no suggestion of non-delivery of the demand by the Defendant or of non-receipt of the demand by the Plaintiff.) 14 In each case the statutory demand was served by Express Post, under cover of a letter dated 3 June 2002 from the Defendant. It was addressed to the Plaintiff at 84 Wentworth Road, Vaucluse NSW 2030, that being the address of the registered office of the Plaintiff. According to John Campbell Hawkins, director of the Plaintiff company, the address of 84 Wentworth Road, Vaucluse is a residential address, being the registered office of the Plaintiff, at which Mr Hawkins resides. At the front of the property is what Mr Hawkins described as being a security wall, with a postbox enabling delivery of mail from the outside, so that it may be collected on the inside. Mr Hawkins stated that it was his practice to collect all mail which is deposited in the postbox at those premises on a daily basis in the afternoon. He said that it was his practice to open such mail immediately after collection. Under cross-examination Mr Hawkins said that it was his usual practice to leave home at nine o'clock, and that he usually returned between six o'clock and eight o'clock in the evening. 15 According to Mr Hawkins, on the afternoon of Wednesday, 5 June 2002, he collected the mail from the postbox at those premises, and found two envelopes, apparently being Express Post envelopes, in the postbox, one addressed to John Hawkins Real Estate (Holdings) Pty Limited, and the other to Pan.Min Developments Pty Limited, each addressed to the same address. 16 Mr Hawkins said that he opened the envelope addressed to John Hawkins Real Estate and found the letter and enclosures which are now Exhibit C in the proceedings. The handwriting which appears on the first page of the exhibit, "Rec'd 5/6/02", is in Mr Hawkins' handwriting, which he said he placed on the letter a few minutes after opening the envelope. 17 Mr Hawkins also said that, having contacted his solicitor, Martin English (who also acts for each Plaintiff in the proceedings), he delivered each envelope and its respective enclosure to Mr English's office, for the purposes of obtaining advice and for the purposes of the commencement of proceedings to set aside each statutory demand. 18 Mr Hawkins said that he had previously cleared the mail from the postbox at the Wentworth Road premises on 4 June 2002, and that after clearing it that postbox was empty, and, further, that the Express Post letters were not in the letter box at that time. 19 It will be appreciated that where, as here, service is effected by post (as is permitted by section 109X(1) of the Corporations Act), it is unusual that direct evidence of the date or time of service can be given on behalf of the party which caused the document to be served. Usually the most that that party can offer is evidence of the consignment to the post of the document to be served. By the very nature of the situation it is unusual that that party can proffer any direct evidence as to the date of the receipt of the document by the party upon whom the document is to be served. 20 In the instant cases the Defendant adverted to section 160 of the Evidence Act 1995, which provides, relevantly, that there is a rebuttable presumption that a postal article sent by pre-paid post addressed to a person at a specified address in Australia or an external Territory was received at that address on the fourth working day after it had been posted. In each of the instant cases the Defendant submits that that presumption is rebutted, on account of the evidence of the Defendant set forth in his affidavit of 9 August 2002. (In each of these two matters the affidavit is in almost identical terms). That affidavit annexes a copy of the covering letter dated 3 June 2002 with which the statutory demand was enclosed. The Defendant states the number of the Express Post envelope in which that letter was sent. To that affidavit is also annexed a communication from Australia Post enclosing the barcode match for the same Express Post envelope number scanned at the Rose Bay Mailing Centre at a time and date therein stated. That letter from Australia Post contains the following, The status "scanned on" is the date that Australia Post would have delivered the express post. The WCID 254860 Rose Bay DC is the delivery centre that the express post would have been delivered from.