New South Wales Supreme Court CITATION : Allianz v Woodfast [2003] NSWSC 587 HEARING DATE(S) : 30/06/03 JUDGMENT DATE : 30 June 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : CATCHWORDS : Corporations Law. Application for a declaration that statutory demand was not served. Held demand was served notwithstanding evidence of non-receipt of demand. Company wound up. PARTIES : Allianz Australia Workers' Compensation (NSW) Limited v Woodfast Joinery (Aust) Pty Ltd FILE NUMBER(S) : SC 1211/03 COUNSEL : Mr Quinn for defendant SOLICITORS : Mr P.M. Day for plaintiff Nemes Thomas & Co for defendant - 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER MACREADY MONDAY 30 JUNE 2003 1211/03- ALLIANZ AUSTRALIA WORKERS' COMPENSATION (NSW) LTD v WOODFAST JOINERY (AUST) PTY LTD JUDGMENT: 1 MASTER: This is a hearing of an interlocutory process filed on 14 May 2003. Order 1 is put forward on the basis that it is really sought to seek a declaration that the Statutory Demand dated 9 December 2002 was never served on the plaintiff. Order 2 seems to be an application under section 459 S of the Corporations Act. That matter is not proceeded with because there is no evidence that has been read on the application which would enable the Court to be satisfied that the ground is material for proving that the company is solvent. In this case there could be, therefore, no order. 2 The matter of question of service falls to be determined in accordance with a number of different affidavits. The principal affidavit of service is the affidavit of Narelle Carr sworn on 23 January 2003, in which she deposes as to the registered office of the defendant, proved by appropriate searches, being at 75 Rosedale Avenue, Greenacre, New South Wales, 2190. She also deposes by having sent by ordinary prepaid post on 12 December 2002 the creditor's statutory demand and the affidavit accompanying the statutory demand. In the ordinary course that would prove the service of the demand. The only evidence to the contrary is evidence of Mr Tony Amyouni in his affidavit of 14 May 2003 in which he deposes in paragraphs 3 and 4: "I did not receive the Statutory Demand allegedly served on the Company by pre-paid post on 12 December 2002. I believe that this is due to the fact that the company was not receiving mail posted to it being delivered by the post office, we being removed and thrown up and down the street by "gang members". "The gang members are of middle eastern appearance and have been active in Greenacre and the Bankstown area. I went to the Post Office in Greeenacre in early December, 2002 and spoke to the manager, who informed me that gang members had been actively stealing mail near the vicinity of my factory in Greenacre because of the Christmas mail and cheques. I become aware of the applicant's claim when I received the originating process together with the supporting affidavits on the date, I cannot now recall, in the first week of February 2003. This was delivered by mail." 3 The question of delivery and proof of service has been dealt with in a number of cases. I myself have referred to the proper proof in a number of cases, including Nemoto International Trading Pty Ltd v Vodac Pty Ltd 10 November 1998, Murphy v Teakbridge in November 1999 and others. The law has recently been restated again by Barrett J in Lane Cove v Geebung (No 2) (2002) NSWSC 118. In that decision his Honour particularly refers to the case which I have always referred to, which is the High Court decision of Fancourt v Mercantile Credit Limited (1983) 154 CLR 87. That case indicates that, of course, the proof of non-delivery is as effective as proof of non-service, but it also points out that simply proof of non-receipt does not amount to proof of non-delivery. 4 In the current matter the actual evidence of Mr Amyouni simply goes to saying that he did not receive it. It does not touch on whether in fact it was delivered by post. 5 In the circumstances, it is not appropriate to make an order that the demand has never been served and clearly there is evidence that there is sufficient proof of service of the demand. Accordingly, I dismiss the interlocutory process and I now proceed to deal with the substantive matter. 6 I have now read the substantive affidavits in respect of the matter. There has also been read an affidavit by Mr Amyouni, which I have previously read on the interlocutory application, and I have been referred to paragraph 13 which is a statement that the deponent thought that the amount was somewhat less than that in the demand. That, however, is a matter which, because there was no application to set aside the demand, cannot be relied upon in these proceedings. 7 I am satisfied that the company is insolvent and I order that the company be wound up pursuant to the Corporations Act. I appoint Schon Gregory Condon as the liquidator of the company. 8 I order that the costs of the application be paid in accordance with the Corporations Act. 9 I order that in respect of the interlocutory process, that the costs of the plaintiff in respect of that interlocutory process also be costs in the winding up to be paid in accordance with the Corporations Act. ********** Last Modified: 07/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.