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.