Steel v Beks [2010] NSWSC 1405

New South Wales Supreme Court

CITATION : Steel v Beks [2010] NSWSC 1405

HEARING DATE(S) : 03/11/2010

JUDGMENT DATE : 6 December 2010

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : I dismiss the proceedings with costs.

CATCHWORDS : Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. - Proceedings not commenced in time. Discussion of whether s29 of Acts Interpretation Act 1901 or s160 of Evidence Act applies.

PARTIES : Steel Building Systems Pty Ltd v Beks Constructions (NSW) Pty Ltd

FILE NUMBER(S) : SC 2010/275775

COUNSEL : Mr MJ Watts for plaintiff Mr F Assaf for defendant

SOLICITORS : MJ Woods & Co for plaintiff DPH Lawyers for defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Associate Justice Macready

Monday 6 December 2010

2010/275775 STEEL BUILDING SYSTEMS PTY LTD v BEKS CONSTRUCTIONS (NSW) PTY LTD JUDGMENT 1 His Honour: This is an application under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand served by the defendant on the plaintiff. The statutory demand is dated 26 July 2010 and claims the amount of $174,005.13. The description of the debt in the schedule to the demand refers to judgment debts obtained in the District Court of New South Wales that resulted from the registration of adjudication certificates dated 2 July 2010. The certificates were made under the Building and Construction Industry Security of Payment Act 1999. 2 There are two matters that arise on the hearing of these proceedings. The first is whether the proceedings were commenced within time and if that question is answered in the affirmative then the court will need to determine whether there is an off-setting claim or a genuine dispute as asserted by the defendant. I will consider the first matter. Commencement and service of the proceedings and affidavit in support 3 The evidence before me demonstrates that the solicitor for the defendant attended to the service of the creditors statutory demand. The original statutory demand, a copy of each of the two registrations of certificate of judgment that supported the demand, together with a letter, were inserted in an express post envelope addressed to the plaintiff's registered office at 174B Grange Avenue, Schofields, NSW 2762 and the details of the solicitor's office address was placed on the back in the space provided. The solicitor placed the express post envelope in a yellow express post box on Railway Parade, outside the Kogarah train station at 5.30pm on 26 July 2010. 4 In addition, a copy of the same documents was placed in an ordinary envelope addressed to the plaintiff at their mailing address at a Post Office Box at Riverstone, New South Wales. The ordinary envelope was deposited into a red post box at the time the express post envelope was deposited in the yellow express post box (which sat next to the red box). The collection time on both boxes was 6pm. 5 If the statutory demand had been served on 27 July 2010, the 21 day time limit to make an application to set it aside expired on 17 August 2010. 6 The originating process in this matter and the affidavit in support were affirmed by Mr Matthew Young on 19 August 2010 and filed with the court on that day. 7 The evidence shows that a copy of the summons and the affidavit in support was served by way of facsimile transmission to DPH Lawyers at a time commencing at 6.16pm on 19 August 2010. The address of the creditor for service of copies of any application and affidavit shown in the statutory demand was "DPH Lawyers, Suite 53, 2-8 Bridge Street, Hurstville, NSW 2220 (Attention Daniel Peter Harb). No facsimile number was shown. 8 However, the plaintiff's evidence from Mr Young states that the statutory demand was received on Friday 30 July 2010. If the statutory demand were served on this date, the 21 day time limit provided by section 459G(2) Corporations Act would have expired on 20 August 2010. 9 The facsimile number to which the summons and affidavit were sent was in fact the facsimile number of DPH Lawyers and, indeed, the solicitor for the defendant gave evidence that when he attended the office on 20 August 2010 he found the facsimile with the documents which had apparently been sent and received the day before between 6.16pm and 6.26pm after his office had closed. 10 Given that the facsimile was received it is clear that this is service: see Austar Finance v Campbell [2007] NSWSC 1493 at [49] to [50] and Medeco Group Pty Ltd v Cripps [2009] NSWSC 927 at [21]. If in fact the statutory demand had been served on 30 July 2010 then the application to set aside the statutory demand is within time. 11 However, the defendant maintains that the service of the statutory demand was earlier than 30 July 2010. They relied upon a combination of s 109X of the Corporations Act 2001 (Cth) and s 29(1) of the Acts Interpretation Act 1901 (Cth) the latter of which provides as follows: "Where an Act authorizes 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 unless the contrary intention appears 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." 12 Section 109X of the Corporations Act provides: "109X Service of documents (1) For the purposes of any law, a document may be served on a company by: (a) leaving it at, or posting it to, the company's registered office; …"