Deputy Commissioner of Taxation v Media Press Computer Supplies Pty Ltd [2004] NSWSC 1271

Reported Decision : 53 ACSR 517

New South Wales Supreme Court

CITATION : Deputy Commissioner of Taxation v Media Press Computer Supplies Pty Ltd [2004] NSWSC 1271 HEARING DATE(S) : 15/12/04 JUDGMENT DATE : 15 December 2004

JURISDICTION: Equity Division Corporations List JUDGMENT OF : Young CJ in Eq DECISION : Order made by Registrar set aside.

CATCHWORDS : CORPORATIONS [147]- Registered office- Non receipt or accidental non recording of notice of change- Effect. EVIDENCE [182]- Presumptions- Receipt of letters. Corporations Act 2001 (Cth) ss 9, 121, 142, 351, 451D, 459R, 1322 LEGISLATION CITED : Evidence Act 1995 (Cth) s 160 Supreme Court Rules Part 40 rule 9 CASES CITED : Milankov Nominees Pty Ltd v Roycol Pty Ltd (1994) 12 ACLC 734 Re Otway Coal Company Ltd [1953] VLR 557 Deputy Commissioner of Taxation (P) PARTIES : Media Press Computer Supplies Pty Ltd (D) Jamal Charara (Applicant) Steven Nicols (Official Liquidator) FILE NUMBER(S) : SC 5452/03 P Rodionoff (P) COUNSEL : J Charara (Applicant) In Person S Nicols (Official Liquidator) In Person SOLICITORS : ATO Legal Practice (P)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

YOUNG CJ in EQ

Wednesday 15 December 2004

5452/03 – DEPUTY COMMISSIONER OF TAXATION v MEDIA PRESS COMPUTER SUPPLIES PTY LTD JUDGMENT 1 YOUNG CJ in EQ: On 16 April Registrar Berecry wound up the defendant company. He did so ex parte because the defendant did not appear. The matter presently before the court is an application by a contributory that the order be set aside under Pt 40 r 9 of the Supreme Court Rules. That application was made by interlocutory process filed on 18 October this year. 2 The contributory, Mr J Charara, appeared in person. The application was opposed by the original applicant, the Deputy Commissioner of Taxation, who appeared by her counsel, Mr Rodionoff. The liquidator which the Registrar appointed, Mr Steve Nicols, appeared in person. 3 There are a number of matters which Mr Charara put as to why the winding up order should be set aside. I consider that it is only necessary to focus on one of these and that is that the statutory demand and the winding up proceedings had never been properly served on the company. 4 The evidence before the learned Registrar was that a search under s 127B of the Corporations Act of the company disclosed that its registered office was unit 27, 514 Botany Road, Alexandria. The search in evidence bears the date 24 October 2003. The evidence shows that at least on 29 October 2003 the office at that address was unoccupied, so that the process server served documents by placing them under the front door. There was obvious doubt in the minds of the solicitors for the plaintiff as to the company knowing about the winding up petition because the solicitors took steps to notify the directors in a letter addressed to Mr Charara of 12 November. The plaintiff's solicitors wrote to him at unit 29, 506 Botany Road, Alexander: "Whilst we believe that service on the registered office ... is effective we enclose a copy of the above document served on the company on this date." 5 However, Mr Charara had not been at that address for some time. He was living at Canterbury and his family was living in Punchbowl. 6 Mr Charara has sworn an affidavit that he signed a notice of change of registered office on 2 July 2003. Ms Hamieh swore that she telephoned ASIC to find the correct form. She was told to use form 489. She filled it in, had Mr Charara sign it, and then posted it at a Post Office in Mascot. She annexed to her affidavit a photocopy of her diary for that day. Later the original diary sheet was tendered and it bears a notation: "Posted change of address to ASIC Melbourne Vic by Rona at Australia Post."