BANKRUPTCY AND INSOLVENCY – control of trustees – appeal against trustee’s decision – election to prosecute or discontinue bankrupt’s proceedings – whether just and equitable to make orders – Bankruptcy Act 1966 (Cth) ss 60, 178
CORPORATIONS LAW – winding up – statutory demands – application to set aside – whether genuine dispute about existence or amount of debt
CORPORATIONS LAW – winding up – statutory demands – application to set aside – affidavit in support – need for affidavit in support to be filed within 21 days of statutory demand – admissibility of affidavits filed outside that time – proper characterisation of affidavits filed late – Corporations Act 2001 (Cth) s 459G
EVIDENCE – types of evidence – company books and accounts – admissible without proof – meaning of “prima facie” – rebuttability of presumption – Corporations Act 2001 (Cth) s 1305
EVIDENCE – statutory presumptions – time for receiving prepaid post – absence of evidence to contrary – Evidence Act 1995 (Cth) s 160
ADMINISTRATIVE LAW – Application for extension of time to appeal –decision to cancel disability support pension under the Social Security Act 1991 (Cth) – appeal from Administrative Appeals Tribunal – Administrative Appeals Tribunal Act 1975 (Cth), s 44 – discretion to extend time to appeal – matters to be taken into account – explanation for delay – whether there is a question of law – whether any merit in proposed appeal – procedural fairness – whether AAT decision infected by actual or apprehended bias.
PRACTICE AND PROCEDURE – Application for extension of time to appeal – reasons for delay – whether appeal disclosed question of law – Legal Aid Commission Act 1979 (NSW), ss 56, 57.
BANKRUPTCY AND INSOLVENCY – consideration of an application to set aside a winding up order on the ground of irregularity in the service of a statutory demand under the Corporations Act 2001 (Cth) and in service of the originating proceedings together with supporting material – consideration of the presumptions arising under the Evidence Act 1995 (Cth) and the Acts Interpretation Act 1901 (Cth) – consideration of s109X of the Corporations Act 2001 (Cth) as to service
CORPORATIONS – consideration of the requirements in relation to service of a statutory demand issued under the Corporations Act 2001 (Cth) and service of originating proceedings seeking an order that the company be wound up in insolvency by the Court – consideration of the consequences of an irregularity in effecting service
“1. This is an interlocutory application filed on 17 April 2012 under which Ms Kay Hewitt a former director of the defendant company (Revolve Limited) seeks leave pursuant to s 471A(1A)(d) of the Corporations Act 2001 (Cth) to cause the defendant to commence and proceed with the review of a winding up order made by Registrar Hedge on 16 March 2012.
2. The application also seeks the setting aside of the winding up order and dismissal of the plaintiff’s application for the winding up. The plaintiff (the Deputy Commissioner of Taxation) opposes leave to extend time for the making of the application.”
CORPORATIONS – Winding up – Statutory demand – Application to set aside statutory demand – Whether there is a “genuine dispute” as to the amount claimed in the statutory demand.
COSTS – Indemnity costs – Application for indemnity costs in circumstances where there were significant deficiencies in respect of statutory demand, a very substantial defect in the affidavit verifying the statutory demand, and a finding that the statutory demand was not a proper use of the statutory demand procedure.
CORPORATIONS – winding up – statutory demand – whether compliance with statutory requirements for postal service pursuant to s 109X of the Corporations Act 2001 (Cth) – statutory demand sent by Commissioner though never received at company’s registered office – held non–compliance with s 109X of the Corporations Act 2001 (Cth)
EVIDENCE – presumptions pursuant to s 160 and s 163 of the Evidence Act 1995 (Cth) and s 29 of the Acts Interpretation Act 1901 (Cth) – service of documents on companies by post – statutory presumptions as to time of service where document posted to registered office – only generic evidence led of postal delivery times to support presumption – express evidence of non–receipt – held presumption rebutted
CORPORATIONS – solvency and insolvency – whether company is insolvent pursuant to s 95A of the Corporations Act 2001 (Cth) – no evidence led by Commissioner as to resources company may command in a reasonable time to meet debts already due and such as may fall due – held failure to prove insolvency
CORPORATIONS – winding up – statutory demand – proof of service by post where registered office of corporation included a post code – where post code was obscured on envelope containing statutory demand – whether compliance with statutory requirements for postal service pursuant to s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth) considered
Held: non-compliance with s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth)
EVIDENCE – presumptions pursuant to s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 and s 163 of the Evidence Act 1995 (Cth) – service of documents on companies by post – statutory presumptions as to time of service where document posted to registered office – no evidence led as to when documents were delivered – proof of non-receipt
Held: presumptions rebutted
CORPORATIONS – Winding up – Application for order under s 461(1)(a) of Corporations Act 2001 (Cth) to wind up Defendant company – Whether requirements for order are satisfied.
CORPORATIONS – Winding up – statutory demand – Court lacks jurisdiction to set aside statutory demand where application to set aside and supporting affidavit not filed and served within time – Whether offsetting claim established.
CORPORATIONS — Appeal against decision of an Associate Justice — Rehearing de novo on the merits — Statutory demand— When statutory demand served — Service by post — Whether the deemed service provisions in the Acts Interpretation Act 1901 (Cth) and Evidence Act 2008 (Vic) rebutted by evidence — Corporations Act 2001 (Cth) ss 109X, 459G, Acts Interpretation Act 1901 (Cth) s 29, Evidence Act 2008 (Vic) s 160
COURTS AND JUDICIAL SYSTEM – delegation of powers to Registrar – application to review “exercise of power” by Registrar – winding up application – preliminary issue decided by Registrar – factual finding regarding the compounding of a debt – whether application for review competent – whether conclusions of Registrar correct – application dismissed as incompetent
BIAS – whether reasonable apprehension of bias – recusal application refused.
CORPORATIONS – practice and procedure – statutory demand – application to summarily dismiss plaintiff’s application to set aside statutory demand – whether application to set aside validly served within 21 day period required by s 459G, Corporations Act 2001 (Cth) – an application under s 459G, Corporations Acts 2001 (Cth) to set aside statutory demand and a copy of the supporting affidavit can be served by the documents being serve at the address for service stated in the demand – service at the address for service is effective whether or not the document is received by a person – service by facsimile – service effective on the day the facsimile was received and printed at the office of the address for service
CORPORATIONS – practice and procedure – statutory demand – application to summarily dismiss plaintiff’s application to set aside statutory demand – Graywinter principle – whether supporting affidavits meets minimum requirements of supporting affidavit
CORPORATIONS – practice and procedure – observations on undesirability of a party applying for summary dismissal of an application under s 459G
BANKRUPTCY AND INSOLVENCY – inquiry sought into conduct of trustee in bankruptcy in the administration of two bankrupt estates – allegation that trustee engaged in unnecessary litigation – allegation that trustee unduly delayed the administration of the two estates – allegation that the trustee unjustifiably failed to disclose information in legal proceedings in which the bankrupts and the trustee were parties – whether inquiry warranted in the circumstances
Held: Limited inquiry ordered.
REAL PROPERTY – general principles – caveats – lapsing notice – when notice takes effect – Land Titles Act 1925 (ACT), s 106.
REAL PROPERTY – general principles – caveats – principles for extending caveats.
Evidence Act 1995 (Cth) s 160
CLAIM FOR POSSESSION OF LAND – defence based on Consumer Credit Code – whether default notice complied with provisions of section 80 of Code – effect of failure of notice to comply with section 80 – whether statement of claim should be dismissed – power of Court to authorise beginning of proceedings nunc pro tunc.
CORPORATIONS – whether applications made pursuant to s 459G of the Corporations Act 2001 (Cth) (the Act) to set aside two Creditor’s Statutory Demands were made within the time limited by s 459G(2) of the Act – discussion of the effect of s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the Evidence Act 1955 (Cth) on the Court’s determination of the date of service of several Creditor’s Statutory Demands – whether there is a genuine dispute about the existence or amount of the debts claimed in several Creditor’s Statutory Demands – whether the lawyers for the plaintiff in two sets of proceedings were validly retained – whether lawyers whose retainer is successfully challenged should pay the costs of the proceedings
CONTRACTS – construction of margin lending loan and security agreement – margin calls – whether validly made pursuant to agreement – whether failure to comply with margin call constituted an event of default under the agreement – whether sale of borrower’s securities by lender valid under the agreement
CONTRACTS – construction of margin lending loan and security agreement – whether prospective authorisation of novation by borrower when terms of agreement entered into – whether agreement validly novated unilaterally by lender without further consent of borrower
CONTRACTS – assignment – margin lending loan and securities agreement – assignment of debt or chose in action to third party – whether rights capable of assignment – whether actual notice under s 12 Conveyancing Act 1919 (NSW) required – whether service of notice under s 170 of the Conveyancing Act sufficient notice
BANKING AND FINANCIAL INSTITUTIONS – margin lending facility – margin lending loan and security agreement – whether margin calls valid – minimum period of notice for margin call under the agreement – right of lender to sell borrower’s secured property after default by borrower
BANKING AND FINANCIAL INSTITUTIONS – margin lending facility – margin lending loan and security agreement – whether agreement validly novated from one lender to another – whether agreement validly assigned from one lender to another
BANKING AND FINANCIAL INSTITUTIONS – whether unconscionable conduct within the meaning of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) – meaning of financial services – where lender enforces its legal rights to protect itself against a fall in value of its security
EVIDENCE – whether primary judge’s factual conclusion was erroneous – Fox v Percy  HCA 22; (2003) 214 CLR 118 – presumption article sent by pre-paid post received under s 160 Evidence Act 1995 (Cth) – primary judge’s preference for demeanour evidence
Evidence Act 1995 (Cth) s 160
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.
BANKRUPTCY AND INSOLVENCY – Winding up – Application by Deputy Commissioner of Taxation to wind up a company for failure to comply with a statutory demand – Whether statutory demand and accompanying affidavit were served in accordance with s 109X of the Corporations Act 2001 (Cth) – Whether inferences could be made from affidavit of service of demand as to compliance with s 109X of the Corporations Act 2001 (Cth)
Evidence Act 1995 (Cth) ss 3, 160, 163, 183
Evidence Act 1995 (NSW) s 160
Evidence Act 2008 (Vic) s 160
CORPORATIONS – Statutory demand – Whether Court had jurisdiction to hear application to set aside – When statutory demand served – Service by post – Corporations Act 2001 (Cth) ss 109X, 459G, Acts Interpretation Act 1901 (Cth) s 29, Evidence Act 2008 (Vic) s 160.
CORPORATIONS – Statutory demand – Whether Court had jurisdiction to hear application to set aside – When statutory demand served – When application to set aside served – Whether good service by facsimile transmission – Affidavit served without exhibits – Corporations Act 2001 (Cth) ss 109X, 459G, Acts Interpretation Act 1901 (Cth) s 29, Evidence Act 2008 (Cth) s 160, Judiciary Act 1903 (Cth) s79.
Building and Construction – Building and Construction Industry Security of Payment Act 1999 – whether adjudicator’s determination void for alleged failure of receipt of adjudication application – whether presumption of receipt of postal article – whether a denial of natural justice
CORPORATIONS – application to set aside statutory demand under Corporations Act, s 459H – whether application brought within time – whether payment by plaintiff made by way of accord and satisfaction of all debts due by it to defendant – whether defendant has offsetting claim for damages exceeding amount claimed in statutory demand – costs
Evidence Act 1995 (NSW)
5 It is common ground that the application and the affidavit supporting the application were filed and served on 15 April 2010. The application was filed and served within time if the statutory demand was served on the plaintiff on or after 25 March 2010. If it were served on the plaintiff before 25 March 2010 then the application is out of time and would have to be dismissed. The statutory demand was served by post.
6 Mr Rice, the sole director of the defendant, deposes that he posted the envelope enclosing the statutory demand and affidavit in support of it in a letterbox outside 333 Collins Street, Melbourne. The envelope was addressed to the defendant at its registered office at level 30, 60 Castlereagh Street, Sydney. The envelope bore the appropriate postage. Mr Rice did not say on what day he placed the envelope, including those documents, in the letterbox.
7 The letterbox contained a sign advising that mail posted before 6 pm would be delivered to interstate metropolitan areas by the second business day. The defendant has produced a brochure published by Australia Post which states as a guideline, based on reasonable expectations and experience, that the maximum number of business days to deliver letters by regular post within Australia between metropolitan areas of capital cities in different States is two business days.
8 The sole director of the plaintiff, Mr Damien Hodgkinson deposes that the demand, together with the supporting affidavit, were delivered to the defendant by ordinary post on 26 March 2010. The registered office of the plaintiff is not its principal place of business. Its principal place of business is in Flinders Lane, Melbourne where it carries on its business of operating the Adelphi Hotel. There is other evidence that at the time in question the plaintiff company did not occupy the premises which are its registered office.
9 Mr Hodgkinson did not explicitly state that the demand and supporting affidavit were delivered to the company’s registered office on 26 March 2010. It may be inferred that he is not an occupier of the registered office. If he was intending to convey that the documents were delivered to the registered office on 26 March, he did not state the source of the knowledge or information as to when documents were so delivered. On the other hand, there is no suggestion in the evidence that the documents were redirected through the post to the defendant’s principal place of business.
10 As the statutory demand and supporting affidavit are both dated 23 March 2010, it is clear they were not posted before 23 March 2010. The advice issued by Australia Post would indicate that if the documents were posted on 23 March, they would ordinarily be delivered on either 24 or 25 March. If they were posted on 24 March, then they would ordinarily be delivered on 25 or 26 March.
11 The plaintiff relied upon the presumption in s 160 of the Evidence Act 1995 (NSW). That section relevantly provides:
“160 Postal articles
(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.”
That presumption arises unless there is evidence sufficient to raise doubt about the presumption.
12 I think the evidence of the statements made by Australia Post is sufficient to raise doubt about the presumption in this case. I do not think that I should find, on the basis of s 160 of the Evidence Act , that the documents were received at the postal address four working days after being posted. Indeed, that would be inconsistent with Mr Hodgkinson’s evidence.
13 Counsel for the plaintiff did not dispute that the onus would lie upon the plaintiff to establish that the application was made within time (see Derma Pharmaceuticals Pty Limited v HSBC Bank Australia Limited  SASC 48; (2005) 188 FLR 373). Although there are deficiencies in the evidence of Mr Hodgkinson as to how he was in a position to say that the demand was served on 26 March 2010, his evidence to that effect was read without objection.
14 I do not think the evidence is rebutted by the possibility, arising from the evidence of Mr Rice, that the documents may have been delivered on 24 March. That possibility only arises if the documents were posted on 23 March. There is an evidentiary onus on the defendant to say on what day the documents were posted. I could not be satisfied that they were posted on the 23rd, as distinct from the 24th of March. Even if the documents were posted on 23 March, the evidence of Australia Post is equally consistent with their being delivered on the 25th as it is with their being delivered on the 24th of March.
15 That being the state of the evidence, and having regard to the statement made by Mr Hodgkinson, I am satisfied, on the balance of probabilities, that the documents were delivered to the registered office of the plaintiff by no earlier than 25 March. Hence, I conclude that the application is within time.
MIGRATION – RRT decision – failure to respond to invitation for additional information – validity of invitation – date when invitation received – effect of invalidity of Reg.5.03 – jurisdictional error in failure to appoint a hearing – four years unexplained delay in seeking judicial review – relief refused.
Evidence Act 1995 (Cth) ss.5 , 160(1)
Service on a corporation
TAXES AND DUTIES – income tax and related legislation – collection and recovery of tax – recovery of penalty from director of companies – notices sent to director – when plaintiff gave defendant the notices required to be served, when notices posted or when received – construction of section 222AOG of the Income Tax Assessment Act 1936 (Cth) – judgment in favour of plaintiff – costs
BUILDING AND CONSTRUCTION – adjudication under Building & Construction Industry Security of Payment Act 1999 (NSW) – validity of adjudication – claim that adjudicator’s determination invalid because receipt of notice of adjudicator’s acceptance alleged not to have been received – establish that notice was posted and accepted that notice did not come to the attention of the plaintiff – distinction between non-delivery and not coming to the attention of the recipient – defendant has benefit of presumption of delivery which plaintiff did not rebut by showing non-receipt by recipient, as opposed to non-delivery – adjudication valid
MIGRATION – application for protection visa – notification of decision of Minister given by registered pre-paid mail – notification not in fact received by visa applicant until some months later – postal article inadvertently misplaced at post office – whether notification in that manner is notification under reg 2.16(1) by sending notice of decision to visa applicant’s address – whether notification deemed by reg 5.03 to have been received seven days after it was dated – whether application for review within time prescribed by s 412 and reg 4.31.
MIGRATION – Migration Regulations – s 412 provides for time within which application for review of decision of Minister to be prescribed – reg 4.31 prescribes time limits for such applications – reg 5.03 deems notification of Minister’s decision to have been received seven days after it was dated in certain circumstances – whether reg 5.03 may operate to abridge time periods prescribed by reg 4.31 – whether reg 5.03 may operate effectively to nullify right of review granted by s 412 –whether reg 5.03 valid exercise of regulation making power.
Evidence Act 1995 (Cth) ss 4, 160, 160(1)
 FCA 776
CORPORATIONS – winding up in insolvency – service of statutory demand – statutory demand posted to company’s registered office – no facility there for receipt of postal articles, but company had box at Post Office – company’s arrangement with Post Office that postal articles addressed to the company would be deposited in company’s Post Office box – evidence of company’s business practice for its employee to collect mail from Post Office box and deliver it to company’s registered office – director’s evidence that he did not receive statutory demand – whether evidence rebutted presumption as to time of service – distinctions between service and time of service, and between delivery and receipt – anomaly that “presumption” as to service is effected by posting, but presumption as to time of service rebuttable. Held: (1) presumption as to time of service not rebutted on the evidence; (2) it does not rebut the presumption to prove that delivery to the registered office was effected by company’s employee, rather than by Australia Post.
Evidence Act 1995 (Cth) s 160
CORPORATIONS – winding up – challenge to winding up order – choice among various procedural avenues – insufficient service alleged – application dismissed – STATUTES – interpretation – Acts Interpretation Act 1901 determines deemed time of service of posted document under s.109X of Corporations Act 2001 – Evidence Acts not relevant
CORPORATIONS – winding up in insolvency – statutory demand – statutory demand served by post to old address on the day before a notice of change of address of registered office took effect – whether service effective
Evidence Act 1995 (Cth) ss 4, 160
EVIDENCE – presumption of delivery in course of post – relationship of Evidence Act 1995 (Cth) to other Acts – Evidence Act 1995 (Cth), ss 160 and 163
NOTICE – service by post – letter from Commonwealth agency – evidence of non-delivery or non-receipt – Acts Interpretation Act 1901 (Cth) s 29 – Income Tax Assessment Act 1936 (Cth) s 222AOF – Evidence Act 1995 (Cth) ss 160 and 163
TAXATION – liability for failure to remit tax withheld from salary entitlements – Income Tax Assessment Act 1936 (Cth) s 222AOE
WORDS & PHRASES – “contrary intention” in statute – “give”, “serve”, “send” a notice – “sending it by post”
[<i>Evidence Act</i>] 1995 (Cth), ss 4, 5, 160, 163, 182
winding up in insolvency
requirements for service of statutory demand and originating process
effect of tender of payment of creditor’s claim
presumption of insolvency from non-compliance with statutory demand
requirements for proof of solvency
TAXATION -Appeals against assessments – appeals lodged out of time -whether the Court has power to grant an extension of time – need for law reform – service of the objection decision.
Evidence Act 1995 (Cth.), ss 160, 161, 163
MIGRATION – visa – bridging visa – to expire 28 days after applicant notified of decision on substantive visa – letter of delegate of Minister advising of the refusal to grant substantive visa – statement of time for review calculated by reference to regulation – whether regulation invalid – whether letter stated time for review – whether applicant notified of decision – whether notification – whether bridging visa still in force – whether applicant’s continued detention lawful – whether discretion not to order release
WORDS AND PHRASES – `notified’, `notify’, `notification’
BUILDING AND ENGINEERING CONTRACTS – Progress payments – Payment claims – Whether successive payment claims, claiming the same amount, can be served – Payment schedules – Time limit for provision of payment schedules – Whether adjudication application can be made if payment schedule provided outside the time limit – Whether s.109X of the Corporations Act 2001 (Cth) applies to provision of payment schedule to a corporation – Effect of s.29 of the Acts Interpretation Act 1901 (Cth) – Whether “provide” means anything different from “serve” in the Building & Construction Industry Security of Payment Act 1999, and is governed by s.31 of that Act.
Evidence Act 1995 (NSW), s.160
DEFAMATION – date of publication – limitation period – proceedings commenced out of time.
tax withheld but not remitted by company
liability of director
service of penalty notice
PRACTICE AND PROCEDURE – estimate of costs made by Registrar – no notice of objection to estimate filed – certificate of taxation issued – respondent claimed certificate not received – respondent seeks to set aside order of Registrar – email service originally relied on for order but no email consent given under Form 12 – subsequent reliance on postage – deeming provisions – serious consequences – degree of certainty of evidence as to actual postage
Held: The order of 31 October 2007 be set aside.
Evidence Act 1995 (Cth) s 160, 160(1), 163
CORPORATIONS – Statutory demand – Service of documents – Application to set aside or vary statutory demand on grounds of offsetting claim by post – Whether application to set aside made within 21 days of service of statutory demand – Service of statutory demand under s 109X (CTH) Corporations Act – Where mail addressed to registered office diverted to post office box – Where evidence rebuts presumption in s 29 of (CTH) Acts Interpretation Act that statutory demand served in the ordinary course of post – Applicability of s160 of the (NSW) Evidence Act – Section 160 of the (NSW) Evidence Act not displaced by s 109X of (CTH) Corporations Act and s 29 of the Acts Interpretation Act (Cth) – No presumption that statutory demand received in post office box on fourth working day after posting where that was not the specified address – Whether receipt in post office box effective as service at registered office – Whether possible to rebut presumption of delivery in ordinary course of post if mail diverted to post office box – Held demand not served until taken to registered office after being collected from box – Plaintiff’s application to set aside statutory demand filed and served within time prescribed by s 459G (CTH) Corporations Act – Offsetting claim genuine.
ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – whether either s 160 or s 163 of the Evidence Act 1995 creates a presumption of receipt of notice – misapprehension as to correct law – what constitutes “effective service” under s 28A of the Acts Interpretation Act 1901 – what constitutes the giving of written notice in accordance with s 155AA of the Veterans’ Entitlements Act 1986 (Cth)
PRACTICE AND PROCEDURE – appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether notice of appeal complies with the requirements of Order 53 rule 3 of the Federal Court Rules – what constitutes a question of law
Evidence Act 1995 ss 5, 160, 163