In the matter of Smith & Young Pty Ltd [2016] NSWSC 1081 the Plaintiff attempted to windup the Defendant company on the basis of a presumption as to insolvency for failing to respond to a Statutory Demand.
A critical issue before the Court was whether or not there was valid service of the Statutory Demand. The plaintiff relied on affidavit evidence to try and prove service in putting forward the usual practice at the firm.
The Court referred to the decision in Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869 in which it was said that: -
“The requirements for proof of service by post have been described in a number of recent cases to which Mr Hughes, counsel for the defendant, referred, specifically, Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216, Dwyer v Canon Australia Pty Ltd [2007] SASC 100, Pearlburst Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126 and Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd [2009] QSC 262.
In order to prove service by post, it is necessary that the evidence of one or more witnesses establish a number of core and indispensable matters: that the document said to have been served by posting of it to a given address was placed inside an envelope, that the envelope had that address written or typed on its face, that a postage stamp or franking of the necessary amount was affixed to the envelope and that the envelope so addressed and stamped or franked was physically deposited in the post either at a post office or by being dropped into a post box for the reception of mail articles.”
In applying the principles the Court found that service was not validly proved and as such the application by the Plaintiff should be set aside. The plaintiff would have been better off getting an administrative assistant to put on an affidavit of service. For help with making a statutory demand or setting it aside please contact our commercial litigation lawyers.
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