IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2024 00174

IN THE MATTER of ROXTON COMMERCIAL BUILDERS PTY LTD (ACN 616 908 073)

BETWEEN:

THOMAS PATTERSON T/AS TOM PATTERSON ROOFING AND CARPENTRY 
(ABN 55 206 506 305)	Plaintiff	
		
v  		
		
ROXTON COMMERCIAL BUILDERS PTY LTD 
(ACN 616 908 073)	Defendant	

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JUDGE:	Hetyey AsJ	
WHERE HELD:	Melbourne	
DATE OF HEARING:	21 May 2024 	
DATE OF JUDGMENT:	Oral reasons for decision delivered on 30 May 2024, revised on 6 June 2024	
CASE MAY BE CITED AS:	Re Roxton Commercial Builders Pty Ltd 	
MEDIUM NEUTRAL CITATION:	[2024] VSC 289	

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CORPORATIONS – Corporations Act 2001 (Cth) (‘Act’) – Part 5.4 – Insolvency – Winding up – ss 459A and 459P – Service of statutory demand - Acts Interpretation Act 1901 (Cth) - s 29(1) – Whether presumption of service by post available – Whether presumption of service rebutted – Delivery by post most probable inference available on the evidence – Whether effective informal service of demand by email to company’s solicitor – s 105A – When electronic communication sent and received – s 459C(2)(a) of the Act – Presumption of insolvency – No evidence led by company to displace presumption – s 467(1) – No basis to dismiss winding up proceeding as a matter of discretion – Company wound up.  
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr M Thomas	JHK Legal	
			
For the Defendant	Mr B Murphy	Christopher Dale Solicitor	

Samco Steel & Precast Pty Ltd (as supporting creditor)	Georgina Wu, solicitor	Dandanis & Associates	
			
For PC Infrastructure Pty Ltd (as supporting creditor)	Matthew Carlei, solicitor 	HWL Ebsworth Lawyers	
			
For DEA Concreting Pty Ltd (as supporting creditor)	Ms M Skinner, solicitor	O’Hearn Lawyers	

TABLE OF CONTENTS
Introduction
Background
Procedural history
Defendant’s application to adjourn final hearing
Material relied upon
Service of statutory demand
Legislation and legal principles
Plaintiff’s evidence
Defendant’s evidence
Plaintiff’s further evidence
Defendant’s further evidence
Documents produced under Australia Post subpoena
Submissions on service of statutory demand
Was there service of statutory demand by pre-paid registered post?
Was there effective informal service of statutory demand by email?
Solvency
Other matters and the Court’s discretion
Conclusion

HIS HONOUR:
	Introduction
1	Before the Court is an application by Mr Thomas Patterson (trading as Tom Patterson Roofing and Carpentry) for the winding up in insolvency of Roxton Commercial Builders Pty Ltd (‘Roxton’ or ‘defendant’) pursuant to ss 459A and 459P of the Corporations Act 2001 (Cth) (‘Act’).  The plaintiff relies on the statutory presumption of insolvency found in s 459C(2)(a) of the Act, which arises because of Roxton’s failure to comply with a statutory demand dated 20 December 2023 for the total sum of $51,891.17 (‘statutory demand’ or ‘demand’).  The demand is based upon orders made by the Victorian Civil and Administrative Tribunal on 8 March 2023 (‘VCAT orders’) in proceeding BP18/2021 (‘VCAT proceeding’), and is accompanied by an affidavit affirmed by Mr Patterson dated 14 December 2023.
	Background
2	The VCAT proceeding concerned a debt claimed by the plaintiff, a roofing subcontractor, from Roxton, a builder, in relation to the supply and installation of roof sheeting and plumbing.  At the hearing of the VCAT proceeding on 8 March 2023, the plaintiff appeared in person and the defendant was represented by Mr Christopher Dale, solicitor.  
3	The plaintiff was awarded damages in the sum of $42,667.90 ‘through the loss of use of his money’, caused by the defendant’s failure to pay the plaintiff’s claim from the date the proceeding commenced, as contemplated by s 184(2)(b)(ii) of the Australian Consumer Law and Fair Trading Act 2012 (Vic).  Interest was also awarded in the sum of $9,223.27.  The orders were accompanied by detailed oral reasons given by Member Horan.  Mr Dale later requested written reasons, which were subsequently published on 7 August 2023.  The written reasons record that following the delivery of oral reasons, Mr Dale applied for a stay of the VCAT orders, which was refused.  The Member did not see any exceptional special circumstances to warrant a stay, noting the plaintiff had been ‘out of pocket for the judgment sum for some years’ and the defendant was unsuccessful in pursuing a counterclaim for liquidated damages.
	Procedural history
4	On 15 January 2024, the plaintiff commenced the winding up proceeding by way of originating process.  On 8 February 2024, the plaintiff’s former solicitors, BlueRock Law, filed a notice of ceasing to act and JHK Legal filed a notice of change of solicitor in their stead.  
5	The defendant filed a notice of appearance on 13 February 2024, opposing the winding up application on the following grounds:
(a)	service of the statutory demand was defective and the defendant had no notice of the demand;
(b)	accordingly, there is no available statutory presumption of insolvency; 
(c)	the defendant is otherwise solvent; and
(d)	the Court should otherwise exercise its discretion not to order the winding up of the defendant.
6	The winding up application was first returnable on 14 February 2024.  Orders were made by Gitsham JR on that date adjourning the hearing and setting a timetable for the filing of further affidavit evidence.  Any further request for an adjournment by the parties was required to be supported by an affidavit to be filed and served by 1 March 2024.  The defendant was also required to file any affidavit material on which it intended to rely by 15 March 2024.  It did not do so.
7	Instead, on the morning of the adjourned hearing on 3 April 2024, the defendant filed and served an affidavit sworn by its solicitor, Mr Dale (‘first Dale affidavit’).  Mr Dale deposes, among other things, that Roxton’s sole director, Mr Andrew Nadinic, informed him that Roxton was not served with the statutory demand and had moved from its registered office before the purported service of the demand.  On the defendant’s behalf, Mr Dale then sought an adjournment to obtain further evidence from Australia Post about the alleged non-delivery of the demand, and to file evidence proving the defendant’s solvency.  This request for an adjournment was more than a month late.  
8	At the hearing on 3 April 2024, orders were made by Gitsham JR further adjourning the hearing and listing the proceeding before me for final hearing on 21 May 2024.  Importantly, the defendant was granted additional time to file and serve any further affidavit evidence, including as to solvency, by 24 April 2024.  The plaintiff was entitled to file responsive affidavit material by 8 May 2024 and written outlines of submissions were to be exchanged and filed by 15 May 2024.  
9	At all events, the defendant did not file any further affidavit material within the permitted time, including on the question of the company’s solvency.  
10	On 14 May 2024, the plaintiff served a subpoena to produce documents under Order 42AA of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) upon the proper officer of the Legal Department at Australia Post (‘Australia Post subpoena’).  The last date for compliance with the subpoena was 21 May 2024 (the date of the final hearing).  The subpoena called for documents pertaining to the tracking of the parcel containing the demand and accompanying affidavit and its delivery to the defendant at its registered office in South Yarra.  Further, on 20 May 2024, the plaintiff filed a supplementary affidavit and written submissions.  
11	The winding up proceeding is supported by three creditors: Samco Steel & Precast Pty Ltd; PC Infrastructure Pty Ltd (which claims to be a creditor in the sum of $516,189.65) and DEA Concreting Pty Ltd (which claims a debt of $106,235.88) (collectively, ‘supporting creditors’).
	Defendant’s application to adjourn final hearing
12	On the morning of the hearing on 21 May 2024, Mr Dale provided to Chambers an unfiled affidavit sworn by him that day (‘second Dale affidavit’).  The affidavit was made in support of a further application by Roxton for an adjournment.  Mr Dale complained the Australia Post subpoena was issued late.  Further, having only been made aware of the existence of the subpoena on 17 May 2024, he said he had not been afforded sufficient time to consider any documents produced under the subpoena.  Mr Dale also deposed to having a conversation with a representative of Australia Post later on 17 May 2024 who suggested that the relevant documents were returned to sender as they were never delivered to the designated South Yarra address, despite attempts at delivery.  He stated he was awaiting a written report from Australia Post to confirm those matters.  Mr Dale also observed that he was served with the plaintiff’s further affidavit affirmed by Mr George Sassine on 20 May 2024.  He said it contains evidence on information from a paralegal who attended at an Australia Post location.  Mr Dale said he needed to seek instructions in relation to the plaintiff’s late evidence, obtain further information from Australia Post and review any documents produced under the Australia Post subpoena.  The defendant’s counsel contended the defendant had been ‘ambushed’ by the late service of the plaintiff’s material and that it was not possible for the Court to hear the application until the defendant had an opportunity to thoroughly interrogate the records of Australia Post.  On the basis of these matters, the defendant sought an adjournment of two weeks.  
13	The application for the adjournment was opposed by the plaintiff and the supporting creditors, with the exception of PC Infrastructure Pty Ltd whose legal representative did not have instructions, given the late notice of the application.  Counsel for the plaintiff argued that prejudice to his clients and other creditors and the serial default by the defendant in complying with Court orders were matters that heavily weighed in favour of refusing the adjournment.
14	After hearing argument from the parties, I briefly stood the matter down to closely consider the second Dale affidavit and the arguments that had been advanced before delivering an ex tempore ruling, substantially in the following terms. 
15	Given the history of the proceeding, and the defendant’s repeated non-compliance with the Court’s previous orders, I refused the application for the adjournment.  
16	The defendant failed to file material in compliance with the Court’s previous orders of 14 February 2024 and 3 April 2024.  The affidavit filed by the defendant, pursuant to the 14 February 2024 orders, was two and a half weeks late.  It is not deposed to by its director, but rather by its solicitor, Mr Dale, and contains matters on the basis of information and belief.  Upon obtaining an adjournment of the proceeding, the defendant was required to file any further affidavit material, including as to solvency, by 24 April 2024 (almost one month prior to the 21 May 2024 hearing date).  At no point did the defendant contact the Court to advise of any difficulty in complying with that order or seek an extension of time.  This is despite email correspondence sent from my Chambers on 16 May 2024 noting that the parties had not filed their written submissions and requesting an explanation for the delay.  The plaintiff’s lawyers responded to this correspondence on the same day and noted the defendant’s non-compliance with the 3 April 2024 orders in respect of the filing of affidavit material.  The plaintiff’s lawyers said that they had written to Mr Dale requesting that he indicate when the defendant would file additional material but that the correspondence had gone unanswered.  
17	The defendant’s repeated and significant non-compliance with the Court’s orders was simply unexplained.  Although the plaintiff filed its responsive affidavit material and written submissions late (due on 8 May 2024 and 15 May 2024, respectively), the 3 April 2024 orders required the defendant to file any further affidavit material first but it failed to do so.  Whilst I did not excuse the plaintiff’s own late compliance with the Court’s orders, I understood the plaintiff may have been somewhat reluctant to risk filing material, only to have it overtaken by new material filed by the defendant out of time (as occurred at the hearing on 3 April 2024).    
18	I noted the operation of s 29 of the Acts Interpretation Act 1901 (Cth) as regards the presumption of service by post (which I set out and discuss further below).  I also observed that a party can seek to displace the statutory presumption by establishing, on the balance of probabilities, that there has been non-delivery.  Critically, the defendant has the onus of doing this.  The defendant did not explain why it had not made its own further enquiries of Australia Post until 17 May 2024.  Regardless, these late inquiries were undertaken before the plaintiff filed its own overdue material on 20 May 2024.  The defendant’s complaint that it was ‘ambushed’ by the late service of the plaintiff’s material rings hollow.  
19	This was the second time the defendant made a last minute request for an adjournment without sufficient prior notice.  The defendant had already been afforded ample opportunity to put the best version of its case before the Court.  There is, of course, a clear policy mandate found in Part 5.4 of the Act that insolvent companies should be promptly wound up as a matter of public interest.
20	In all the circumstances, I determined the winding up proceeding should not again be postponed on account of the defendant’s failure to properly engage with the process.  I stated that I would hear the winding up proceeding on the basis of all the material then before the Court.   
21	However, I stood the matter down for a period of time to enable the parties to uplift and inspect the documents produced to the Prothonotary by Australia Post.
	Material relied upon 
22	In support of its application, the plaintiff relies upon: 
(a)	the affidavit in support of the originating process of Thomas Patterson, affirmed 15 January 2024;
(b)	the affidavit of service of the statutory demand of Natasha Kozakis affirmed 15 January 2024 (‘first Kozakis affidavit’) and her later affidavit of service of the originating process affirmed 18 January 2024;
(c)	a consent to act as liquidator given by Mr Daniel P Juratowitch of Cor Cordis;
(d)	the affidavits of Ms Kozakis of lodgement and publication affirmed 22 January 2024 and 5 February 2024, respectively;  
(e)	the affidavit of Mr George Sassine affirmed 20 May 2024 (‘Sassine affidavit’); and
(f)	written submissions dated 20 May 2024.
23	In addition, the plaintiff tendered the documents produced under the Australia Post subpoena.  Initially, the defendant objected to the tendering of those documents, and to all other information obtained from Australia Post and exhibited to the Sassine affidavit.  However, during the course of submissions, the defendant’s counsel accepted that the Australia Post subpoena documents should be received into evidence and no longer pressed the objections to the other material.  Instead, the defendant made submissions about the content of the various Australia Post records.
24	In resisting the plaintiff’s application, Roxton relies on the first and second Dale affidavits.  As already noted, there is no affidavit filed by the director of the defendant, either as to service or on the question of solvency.  Nor has the defendant filed any written submissions in accordance with the previous orders.
	Service of statutory demand
25	The key issue that arises for consideration is whether there has been effective service of the statutory demand.
	Legislation and legal principles
26	Section 459C(2)(a) of the Act provides that a company is presumed to be insolvent if, during or after the three months ending on the day when an application for winding up was made, the company failed to comply with a statutory demand.  However, in the absence of evidence of proper service of the demand, the statutory presumption of insolvency is not enlivened.
27	Pursuant to s 109X(1)(a) of the Act, a document, including a statutory demand, may be served on a company by leaving it at, or posting it to, the company’s registered office.  
28	Section 29 of the Acts Interpretation Act 1901 (Cth) (‘AIA’) is another important statutory provision.  The section states:
(1)	Where an Act authorises 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 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. 
(2)	This section does not affect the operation of section 160 of the Evidence Act 1995.
29	Section 160 of the Evidence Act 2008 (Vic) (‘Evidence Act‘) relevantly provides:
(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 seventh working day after having been posted.
30	As the learned author of the text Assaf’s Winding Up in Insolvency explains, s 29(1) of the AIA has two limbs — the ‘deemed service limb’ and the ‘presumed time of service limb’.  To enliven the presumption of service under the deemed service limb, the serving party must prove the following matters, either by direct evidence or inference from the evidence:
(a)	the envelope bore the correct name and address;
(b)	the envelope contained the relevant document to be served;
(c)	the correct cost of postage was used to send the envelope; and
(d)	the envelope was placed in the post.
31	A party can displace the statutory presumption of service under s 29(1) of the AIA by proving, on the balance of probabilities, that there has been non-delivery, as distinct from non-receipt, of the document.  Similarly, a party seeking to rebut the presumption underpinning s 160 of the Evidence Act bears the onus of leading evidence sufficient to raise a ‘doubt’ as to receipt.  However, a ‘doubt’ does not need to be ‘proof to the civil standard of fact finding at trial as to actual non-delivery’.   
32	In Re Kornucopia Pty Ltd (No 1) (‘Kornucopia (No 1)’), Sifris J (as his Honour then was) discussed the evidentiary burden faced by a defendant seeking to negate the presumption of service under s 29(1) of the AIA:
The Company bears the onus of establishing ‘proof to the contrary’ pursuant to s 29(1) of the AIA Act [Re AXF Group [2019] VSC 671, [42]]. It does so by proving non-delivery of the statutory demand to the premises of the company’s registered office, or delivery to some address other than the registered office. If the company successfully proves alternative delivery or non-delivery, the presumption does not apply, and proof of non-delivery is effective as proof of non-service. However, ‘if there is no evidence of actual delivery or non-delivery, then the presumption will apply and the item will be deemed to be delivered in the ordinary course of post’ [Formosa House Pty Ltd v Chang [2010] VSC 474, [11] (Ferguson J) (‘Formosa House’)].
…
As I observed in Re AXF Group [[2019] VSC 671], ‘the absence of a notice from Australia Post marking the Demands as undeliverable is a significant indication as to whether or not delivery had occurred’ [[2019] VSC 671, [84]].  To this, I would add the observation of Colvin J in [Deputy Commissioner of Taxation v Melking Holdings Pty Ltd (2019) 137 ACSR 411]:
it is a question of fact in each case whether the circumstances indicate that there has been non-delivery at the relevant place (as distinct from an unwillingness to receive the documents at the place where they were delivered or a failure for the documents to be brought to the attention of a particular person despite being delivered to that place) [(2019) 137 ACSR 411, 426 [56] (‘Melking Holdings’)].
Furthermore, as Colvin J also said in Melking Holdings, ‘[t]he registered office of a company must be a location that accommodates the possibility of service by post’ [Ibid 425 [52]]. In Partners of Piper Alderman v Sharjade Pty Ltd, Barrett J said there is, implicit in the statutory regime, ‘an expectation that there will be in place at the registered office a system for the safe and secure reception of documents delivered by post’ [[2011] NSWSC 6, [18]]. 
…
I said in relation to the scenario in [Re AXF Group [2019] VSC 671 [83]], ‘an infinite number of possibilities’ and each of which was ‘equally likely’ [Re AXF Group [2019] VSC 671 [83]].  Where there are numerous such possibilities, but no evidence tending to suggest which is most likely, the Court may inevitably hold that service (that is, delivery) has been effective, for that is the default position by virtue of the presumption, and no evidence has been adduced to suggest that it has not occurred.
I reiterate that it is incumbent on the company to adduce proof of non‑delivery. If there is only proof that the statutory demands have not been received by the Company, the presumption is not displaced and service has been effective according to s 29(1).
…
The company does not need to adduce evidence that would exclude an inference of delivery, but must upon the evidence, establish that delivery is the most improbable inference to be drawn or conversely, that non-delivery is the most probable. [Bradshaw v McEwans (1951) 27 ALR 1, 5 (Dixon, Williams, Webb, Fullagar and Kitto JJ)].  In other words, the operative question may be phrased as follows: Has the company established actual non-delivery to the registered office address, actual delivery to some alternative address, or any other competing possibility which is more probable than the demand having been delivered to the registered office? [Woodgate (as trustee for the bankrupt estate of Fenton) v Garard Pty Ltd (2010) ACSR 468, 476 [42] (Palmer J)]
33	Having regard to the operation of s 109X of the Act and s 29(1) of the AIA, the requirement for a company and its agents to maintain adequate records with the regulator assumes paramount importance.  Creditors and other persons wishing to serve documents on a company should be entitled to rely upon the details of the company’s registered office in its records maintained by the Australian Securities and Investments Commission (‘ASIC’), without making further enquiries as to the company’s current address or any mail re-directions which may be in place.  Whilst a company has the obligation to maintain a current and satisfactory address, the legislative intent to provide an official public address for service would be defeated if a company could simply flout its obligations by failing to notify ASIC of any change to its registered office – whether deliberately or carelessly.
34	Notwithstanding the above policy considerations, it remains open to a company to rebut the presumption of service and prove non-delivery.  As Sifris J explained in Re AXF Group:
…a company cannot rely upon the fact that it has not received a statutory demand if it has moved addresses and the statutory demand has been delivered to its previous registered office, if that previous address remains on the ASIC register. It bears the consequences of non-receipt for it is the maker of its own misfortune. However, the company is still entitled to dispute whether the statutory demand was successfully delivered to its previous registered office. Failing to amend its registered office with ASIC, while imprudent, has no bearing on this factual issue. A document is either delivered to an address or it is not. 
35	Where a party employs a method of service on a company other than those methods contemplated by s 109X of the Act, the question of whether it is good service depends on the serving party proving to the Court’s satisfaction that the document actually came to the attention of a responsible officer of the company who was expressly or implicitly authorised by the company to deal with the document.  This is known as ‘the effective informal service rule’.  Service by email or facsimile are modes of service that fall within the scope of this rule.  However, the effective informal service rule does not operate as a saving mechanism to allow a creditor a second chance at service where it contends, in any correspondence accompanying the relevant document, that there has been effective prior service by conventional means.
36	In Kookaburra Educational Resources Pty Ltd v MacGear Ltd Partnership trading as MacGear Australia, Re Kookaburra Educational Resources Pty Ltd (‘Kookaburra’), Halley J held that email communications between the creditor’s solicitor and the debtor’s accountant established that a statutory demand was expressly brought to the attention of the debtor company by reason of the accountant first telephoning and then emailing the director with the demand.  His Honour considered that the director, as an officer of the company, ‘was at least implicitly authorised by the company to deal directly and responsively with the [d]emand’.  This was held to constitute effective informal service of the demand, notwithstanding any failure of the creditor to serve the demand at the registered office of the company. 
37	Similarly, in Re Caason Investments Pty Ltd (‘Re Caason’), Gardiner AsJ recognised there was informal effective service of a statutory demand by email from the plaintiff’s solicitor to the defendant’s in-house lawyer who had been involved in prior related proceedings concerning the parties and was closely engaged in the matter prior to the service of the demand.  
38	In Kornucopia (No 1), Sifris J considered that in the event he was wrong in holding there had been service of the demand in question by post upon a debtor company, there had nevertheless been effective informal service of the demand by email to the directors of the company.  The relevant email in that case was sent to the directors of the company and noted the documents had been posted to the debtor company, but had in fact been returned by Australia Post.  The writer of the email ‘strongly recommended’ the directors read the demand and accompanying affidavit, which were themselves attached to the email.  A subsequent email was also sent noting the posting of the relevant documents (but not asserting that service had occurred) and enclosing the demand as a courtesy.
	Plaintiff’s evidence
39	On 15 January 2024, Ms Natasha Kozakis, a solicitor who formerly acted for the plaintiff, affirmed an affidavit on the question of service of the statutory demand.  She says that on 20 December 2023, she caused the statutory demand and accompanying affidavit (‘documents’) to be served on the defendant at its registered office address of 50 Davis Avenue, South Yarra, Victoria (‘South Yarra address’) by registered post.  She consulted an ASIC company extract for the defendant dated 19 December 2023 to ascertain that the South Yarra address was the registered office.  Ms Kozakis deposes to having placed the documents into a registered post envelope (‘envelope’ or ‘parcel’) with tracking number 0201012330592006050991 (‘tracking number’) and addressing it to the defendant at the South Yarra address.  She then sealed the envelope and placed it into a post box located at 440 Collins Street, Melbourne at 4:26pm on 20 December 2023.  
40	Ms Kozakis further explains that at 3:35pm the same day, she emailed the documents to the defendant’s solicitor, Mr Dale (‘20 December email’).  Relevantly, her email noted the documents would be served by post at the defendant’s registered office in due course and that they were provided electronically to Mr Dale ‘as a courtesy’.
	Defendant’s evidence 
41	As previously noted, in the first Dale affidavit, Mr Dale relevantly deposes he is informed by Mr Andrew Nadinic, the defendant’s director, that:
(a)	in mid-December 2023, the defendant changed its registered office and principal place of business from the South Yarra address and moved to Level 1, 1087 High Street, Armadale, Victoria;  
(b)	‘the statutory demand was not delivered to [the South Yarra address] on 20 December [2023] or at all and as of 20 December [2023] the [d]efendant was no longer at [the South Yarra address]’;
(c)	accordingly, the defendant was never served with the demand and no application could have been made to set it aside within the mandatory 21 day statutory timeframe; and
(d)	the premises were unoccupied on 20 December [2023] and ‘it would have been evident to any postal employee that there was no point delivering the statutory demand, affidavit accompanying the statutory demand and the registered post envelope to that address’.
42	Mr Dale also says he has obtained a copy of a registered post tracking report from Australia Post using the tracking number.  The tracking report suggests that: 
(a)	on 22 December 2023 at 12:33pm, the documents were said to be delivered at South Yarra, but the report does not specify where;
(b)	on 29 December 2023 at 9:10am the documents were said to be on board for delivery at Abbotsford; and
(c)	at 10:16am on 29 December 2023, a notation on the tracking report stated ‘receiver not known at address, South Yarra Vic’.
43	In light of later evidence filed in the proceeding, it is apparent that the tracking report exhibited to Mr Dale’s first affidavit is incomplete and omits certain particulars (‘incomplete tracking report’).  
44	Mr Dale states that, on an unspecified date, he spoke to a staff member at Australia Post by the name of Laetitia (her surname was not disclosed), who indicated that following an initial attempt at delivery at the South Yarra address in 22 December 2023, the documents were remitted to the Abbotsford Postal Centre.  From there, the documents were sent for further attempted delivery at South Yarra on 29 December 2023, but were ultimately not delivered as the receiver was not known at that address.  The documents were then scanned as ‘return to sender’.  The documents did not apparently require a signature upon delivery.  
45	As regards the 20 December email sent to him by the plaintiff’s solicitors, Mr Dale deposes he was on leave at that time.  He observes that the 20 December email did not ask whether he had instructions to accept service of the documents, nor did it indicate it was intended to constitute service.  Instead, the email advised that the documents would be served by post at the defendant’s registered office in due course.  Mr Dale responded to the 20 December email when he returned to his office on Monday 15 January 2024.  His email in reply stated that he had been on leave and he would seek instructions on the matter and revert to the plaintiff’s solicitor during the week.  Mr Dale’s responsive email was sent from the address: cdale@christopherdale.com.au, which I understand to be the email address to which the 20 December email was sent (‘Mr Dale’s email address’).  No party suggested otherwise.
	Plaintiff’s further evidence 
46	By his affidavit of 20 May 2024, Mr George Sassine, solicitor for the plaintiff deposes that, on 14 May 2024, he instructed a paralegal, Ms Min Zhang, to attend the Australia Post office at 40 Collins Street Melbourne to make enquiries about the parcel with the tracking number.  Ms Zhang informs him that she attended at the relevant Australia Post Office and spoke to a customer representative who confirmed the parcel was delivered on 22 December 2023 at 12:33pm to a mailbox at the South Yarra address.  Ms Zhang took a screenshot of Australia Post’s internal tracking record for the parcel which confirmed delivery at this time.  The screenshot also indicates that the parcel was marked ‘Returned to sender - Receiver not known at address’ on 29 December 2023 at 1:47pm.  
47	Ms Zhang also informs Mr Sassine that on 14 May 2024, she called Australia Post’s business line and spoke to an operator by the name of Helen A (her full surname was not disclosed) about the tracking number.  Helen apparently confirmed the parcel was registered as delivered on 22 December 2023 at 11:22am, which means that the postal officer placed the parcel in the mailbox at the address labelled on the envelope in the suburb of South Yarra.  However, because more than two months had passed since delivery, the full tracking record had been archived and Helen was only able to provide a separate communication outlining the tracking record. 
48	In her subsequent email of 14 May 2024, Helen A relevantly stated:
On 22/12/2023 this article went on board with the postie for delivery and was deemed delivered at 11:22am.
However, on 27/12/2023 it appears the article had re-entered the postal network due to an address issue.  I can confirm that the delivery centre had attempted contact with the recipient with no success and they did try to redeliver the article on 29/12/2023.  The delivery was then refused at the address and deemed as “Receiver not known at the address”, as a result the article was then Returned to Sender due to an unsuccessful delivery.  
…
[emphasis added]
(’14 May Australia Post email’).
49	Ms Zhang then informs Mr Sassine that on 15 May 2024 she called the Australia Post business line again and spoke with another operator, by the name of Brandon (his surname was not disclosed).  Brandon provided an email that same day which relevantly said:
On the 22/12/23 at 12:33pm, our Driver delivered this item to the Mailbox, I have audited the driver and they appear to be in the vicinity of the correct location at the time of delivery, however further scanning indicates the driver scanned the items advising they need to check the address.  
It appears on 27/12/23 at 11:18am, we have a scan indicating we tried to call a phone number either on the envelope (Which could result in a call to either the Sender or Receiver) or by checking the customers details online, to confirm their address, finally on the 29/12/23 at 09:16am our Driver once again tried to attempt delivery, but was instructed that the Receiver of the item was not at this address following this item was returned to Sender.
…
[emphasis added]
(’15 May Australia Post email’)
50	Mr Sassine exhibits to his affidavit a complete tracking report which contains additional information to the version relied upon by the defendant (‘complete tracking report’).  The tracking report contains the following details:
Received by Australia Post
MELBOURNE VIC • Wed 20 Dec, 4.26pm
…
ABBOTSFORD VIC • Fri 22 Dec, 7.05am
Delivered
Delivered
SOUTH YARRA VIC • Fri 22 Dec, 12.33pm
Onboard for delivery
ABBOTSFORD VIC • Fri 29 Dec, 9.10am
Receiver not known at address
SOUTH YARRA VIC • Fri 29 Dec, 10.16am
Customer enquiry lodged
Thu 1 Feb, 5.29pm
[emphasis added]
51	Finally, Mr Sassine exhibits an updated ASIC extract for the defendant dated 20 May 2024.  The updated ASIC extract confirms the South Yarra address remains the defendant’s current registered office and principal place of business and has been so at all relevant times.  The record shows that the South Yarra address became the defendant’s registered office on 13 July 2023 (although it was recorded as the company’s principal place of business since November 2018).  Therefore, on the defendant’s own case, the South Yarra address was only used as its registered office for approximately five months (until mid-December 2023).  I was not asked to draw any inference in this regard.   
52	The updated ASIC extract addresses a latent problem with the plaintiff’s winding up application.  The earlier ASIC extract filed with the affidavit in support was dated 19 December 2023, which was more than seven days before the originating process was filed in non-conformity with r 2.4(2) the Supreme Court (Corporations) Rules 2023 (Vic).
	Defendant’s further evidence 
53	As already noted, in the second Dale affidavit, Mr Dale deposes to having a telephone conversation with a representative of Australia Post called Helen (her surname was not disclosed) on 17 May 2024.   Mr Dale says that he provided Helen with the tracking number and she checked the Australia Post records.  Helen apparently informed Mr Dale that based on the records of Australia Post, the envelope was not delivered to the South Yarra address, despite attempts, and that it was returned to sender having never been delivered.
	Documents produced under Australia Post subpoena
54	The Australia Post subpoena called for documents falling into the following categories: 
1.	Tracking extract and full delivery report for parcel with tracking number: 0201012330592006050991;
2.	A delivery report confirming delivery of the parcel with tracking number: 0201012330592006050991 to 50 Davis Avenue, South Yarra in Victoria 3141.
55	In responding to the Australia Post subpoena, the proper officer provided a covering letter dated 16 May 2024.  The letter states that documents are produced in answer to category one.  However, in relation to category two, the proper officer states that ‘no documents were found concerning the delivery of Article 0201012330592006050991 to [the South Yarra address]’.  He then refers to a specific document titled ‘Case 59878872’.
56	The document titled ‘Case 59878872’ is a log extracted from ‘Salesforce’ software and dated 16 May 2024 (‘Australia Post Salesforce log’).  The Australia Post Salesforce log expressly refers to the tracking number as a ‘Reference ID’ on the first page.  I am informed by the plaintiff’s counsel, and I accept, that Salesforce is a customer relationship management platform.  
57	The Australia Post Salesforce log records that on 1 February 2024, an employee from Australia Post Abbotsford Delivery Centre sent an internal message in the following terms:
Good morning team,
As per the scans - Item was taken out by our PDO and delivered on 22/12. It has then returned to the facility, held at facility. An attempt was made to contact the customer on 27/12 and subsequently, the item was then taken back out for delivery on 29/12 - to which the shop was vacated and there were only tradesmen on site, advising that there is no one at this address. Item was then RTS.
PDO has advised that this address is still vacant but signage in the window has recently changed from FOR LEASE to LEASED.
UPDATE:
We are unsure as delivery appears to have been complete in the first instance. The fact that it was held at facility and an attempt was made to contact the customer, suggests that something on the parcel was suggested that more information was required.
[emphasis added]
58	The document then records a series of communications between Australia Post representatives and Ms Laura-Ann Rullo, who I understand from the documentation in the proceeding was a legal practitioner working at BlueRock Law, the plaintiff’s former lawyers.  On 2 February 2024 at 8:20am, an Australia Post employee by the name of Quinn B (their surname was not disclosed) sent a message to Ms Rullo as follows:
Hi Laura,
RE: 0201012330592006050991
Thanks for your patience while we've investigated the recent return of this parcel you've sent.
Our delivery centre staff have responded to your query about the return this morning after speaking with the driver.
This item was taken out for delivery by our postie and delivered on 22/12.
It has then returned to the facility, held at facility. An attempt was made to contact the customer on 27/12 and subsequently, the item was then taken back out for delivery then returned to sender.
Our postie has advised that this address is still vacant but signage in the window has recently changed from FOR LEASE to LEASED.
…
[emphasis added]
59	Ms Rullo replied at 8:23am by asking who returned the documents and whether it was someone located onsite.  Quinn B responded at 8:39am stating they did not have specific information about who returned the documents and suggested the envelope ‘may have just been placed back in the street posting box’.  Later that day at 12:39pm, Quinn B sent a follow-up message:
Hi Laura,
I’ve just heard back from our delivery centre.
They can not recall how this was returned to the delivery centre as it was over 1 month ago, though from the history of the scans we can determine an attempt to contact the customer was made, this happens when important information is missing from a label or if we need to double check if changes need to be made to an address.
Who ever received it was at the correct location, but likely not the person intended for this envelope.
I am sorry that we don’t have further specifics at the moment, though we did make multiple efforts to deliver this item when it was with our delivery centre before returning.
…
[emphasis added]
	Submissions on service of statutory demand 
60	On the basis of the evidence before the Court, the plaintiff submits it has the benefit of the statutory presumption of service of the documents pursuant to s 29 of the AIA.  The plaintiff’s counsel emphasised that once the presumption of service is engaged, the burden rests with the defendant to prove non-delivery.  Following the assertions made in the first Dale affidavit, and the defendant’s reliance on the incomplete tracking report exhibited to it, the plaintiff undertook further enquiries of Australia Post to put the position beyond doubt.  The plaintiff submits that the complete tracking report, together with the 14 May and 15 May Australia Post emails and the Australia Post Salesforce log, demonstrate the demand and supporting affidavit were in fact delivered to the South Yarra address on 22 December 2023 and that service was effected.  Accordingly, the defendant cannot displace the statutory presumption of service.  However, in the event service by post is found to be ineffective, the 20 December email constituted effective informal service of the documents.  Service occurred on 20 December 2023 when the email was sent to the offices of the defendant’s solicitors, or at the latest on 15 January 2024 when Mr Dale responded to the email.  
61	In oral submissions, the defendant’s counsel argued the presumption of service in s 29 of the AIA was not established because the plaintiff had not produced a copy of the envelope which bore the correct name and address for the defendant or established that the correct cost of postage was used to send the envelope.  Further, counsel submitted that, having regard to the Australia Post Salesforce log, it may have actually been Ms Rullo of BlueRock Law who posted the documents, rather than Ms Kozakis (as the deponent of the affidavit of service of the demand).  However, even if the presumption applied, the most probable inference established by the evidence is that the documents were not delivered to the South Yarra address.  In particular: the covering letter accompanying the Australia Post subpoenaed documents confirmed ‘no documents were found concerning the delivery of [the parcel]’; Australia Post employee Helen informed Mr Dale on 17 May 2024 there was no record of the documents having been delivered to the South Yarra address; and the 15 May Australia Post email gives rise to the inference that Australia Post was unable to deliver the documents on Friday 22 December 2023 and instead retained possession of the documents over the weekend and public holidays, until delivery was again attempted on 29 December 2023.  Further, it was unclear what Helen A meant in the 14 May Australia Post email when she referred to the parcel as being ‘deemed delivered’ on 22 December 2023 at 11:22am.  There is also a discrepancy in the various Australia Post records between purported delivery times on 22 December 2023, with references made to 11:22am and 12:33pm.  Similarly, the Australia Post Salesforce log does not refer to any enquiries made by Mr Dale or Ms Zhang about the tracking number.  This undermines the reliability of the document.  
62	The defendant’s counsel further submitted that the 20 December email could not constitute informal service because it referred to service occurring by post in due course, was only sent as a courtesy, and the plaintiff’s lawyers did not first seek clarification as to whether Mr Dale continued to act for the defendant.  There was no certainty the email and its attachments would be directed to the defendant’s responsible officer and Mr Dale was not requested to do so.  In any event, Mr Dale was on leave at the time the email was sent and did not see the email until 15 January 2024.  Additionally, service by email is not referred to in the originating process.
	Was there service of statutory demand by pre-paid registered post?
63	In determining whether the statutory demand and accompanying affidavit were effectively served at the South Yarra address, it is first necessary to consider whether the plaintiff has successfully invoked the ‘deemed service limb’ of s 29(1) of the AIA.   
64	I am satisfied the matters necessary to enliven the statutory presumption of service are established by the first Kozakis affidavit.  I accept that Ms Kozakis attended to the relevant steps deposed to in her first affidavit.  In this regard, I reject the defendant’s submission that there is some doubt over whether Ms Kozakis or Ms Rullo sent the statutory demand.  It does not follow that because Ms Rullo made inquiries of Australia Post after the apparent return of the documents, she is the person who originally sent them.  In any event, Ms Kozakis was not cross-examined on her evidence.
65	Whilst the defendant argues there is no photograph of the envelope containing the documents, I consider that having regard to the contents of the first Kozakis affidavit, the relevant envelope bore the correct name and address of the defendant.  In this regard, I do not accept the defendant’s position that the envelope was erroneously directed to its former registered office address.  Roxton has given no evidence of precisely when in mid-December 2023 it purportedly vacated the South Yarra address.  But more critically, the recent ASIC record for Roxton does not show any change of registered office.  It was Roxton’s responsibility to maintain the ASIC record and to ensure that its registered office was at a location that accommodated the possibility of service by post.  Further, the plaintiff was entitled to rely on the information contained within the ASIC record when attending to service of the statutory demand in a manner contemplated by s 109X of the Act. 
66	Although the defendant notes there is no express reference in the first Kozakis affidavit to the correct cost of postage, I am prepared to infer the envelope was properly pre-paid because the plaintiff’s former lawyers made use of the registered post service and a tracking number was assigned to the envelope containing the documents.  A similar approach was taken by Gardiner AsJ in the recent case of Re Canungra Foodworks Pty Ltd (‘Re Canungra’).  There is nothing to suggest in any of the documentation before the Court that Australia Post returned the envelope on account of there being a problem with the cost of postage.  
67	In my view, the plaintiff has put forward sufficient material, either by way of direct evidence or implication, to raise the presumption of service of the statutory demand under s 29(1) of the AIA.  Service is therefore presumed to have been effected under the ‘deemed service limb’ of s 29(1), unless the contrary is proved.   
68	The real issue in dispute is whether Roxton is able to displace the statutory presumption of service by establishing, on the balance of probabilities, that the demand was not delivered to the South Yarra address.  I am not satisfied that it can.  In my view, the most likely inference permitted by the evidence is that the demand was delivered to the South Yarra address on 22 December 2023 at 12:33pm.  The following matters support that conclusion.  
69	First, the complete tracking record shows that the documents were delivered to an address in South Yarra on Friday, 22 December 2023 at 12:33pm.  The complete tracking record indicates that it was not until 29 December 2023 that the notation ‘Receiver not known at address‘ was included.  The complete tracking record aligns with the screenshot of the Australia Post tracking record taken by Ms Zhang when she attended at the Australia Post Collins Street office on 14 May 2024.
70	Secondly, the 14 May Australia Post email also states that the envelope was ‘deemed delivered’ on 22 December 2023 at 11:22am.  The distinction between a delivery time of 11:22am and 12:33pm (the delivery time referred to on most of the Australia Post documents) is of no great moment.  The email also records that on 27 December 2023, the article ‘re-entered the postal network’ due to an address issue.  Subsequent attempts at delivery on 29 December 2023 were refused and for that reason the article was recorded as ‘receiver not known at the address‘ and returned to sender.  Although the defendant suggests the phrase ‘deemed delivered’ connotes some uncertainty about whether the envelope was actually delivered, the defendant did not lead any evidence from Australia Post as to the meaning of the term.  However, when considered in the context of the entire email, it appears to me that the author was simply stating that whilst the envelope was initially delivered, as a consequence of it re-entering the postal system and being refused (by an unknown person) on a second attempted delivery, it was ultimately treated as undeliverable.
71	Thirdly, the 15 May Australia Post email makes clear that on 22 December 2023 at 12:33pm, an Australia Post driver delivered the envelope to a mailbox ‘in the vicinity of the correct location’.  The fact that at an undisclosed point in time, the driver scanned the item on the basis there was a need to check the address, is not definitive.  
72	Fourthly, the Australia Post Salesforce log entry made by the Abbotsford Delivery Centre on 1 February 2024 expressly states the envelope was initially delivered on 22 December 2023.  It was after delivery was recorded as having occurred that the envelope was returned to an Australia Post facility.  These matters were later confirmed in correspondence passing between an Australia Post employee and Ms Rullo on 2 February 2024 and recorded in the log.  On further investigation, the Australia Post representative could not ascertain precisely how the envelope was returned to the Australia Post delivery centre, but stated that whoever received the envelope was at the correct location, but likely not the person intended to receive it.
73	Although the documents were ultimately treated by Australia Post as being undeliverable and ‘returned to sender’, the evidence suggests that the envelope was initially delivered to the defendant’s current registered office.  For reasons which are unclear, the envelope re-entered the mail system on 27 December 2023, found its way into Australia Post’s ‘Dead Letter Office’, and was ostensibly returned to the plaintiff’s lawyers.  Whether it was a tradesperson, a new tenant, or an officer or employee of the defendant who placed the envelope back into the postal network, or whether there is some other explanation, is immaterial.  What is important is that the most probable inference available on the evidence is that the documents were delivered to the South Yarra address in the first instance.
74	Fifthly, I do not accept that the covering letter accompanying the Australia Post subpoenaed documents should be taken as evidence that ‘no documents were found concerning the delivery of [the parcel]’, such that there was no delivery.  That seems to be a strained reading of what is said.  Taken in context, the statement appears to mean there were no documents responsive to the parameters of category two of the subpoena, namely a delivery report in respect of the tracking number.  That may be because Australia Post does not maintain documents meeting the description of a delivery report.  By contrast, documents were produced under category one.  They contain information which is consistent with the delivery of the documents.
75	Lastly, I note that the incomplete tracking report obtained by Mr Dale is apparently dated 2 January 2024.  This was prior to the winding up proceeding being filed and served.  Whilst by no means conclusive, the date on the incomplete tracking report tends to support the inference that the documents were successfully delivered to the South Yarra address on 22 December 2023 and that the tracking number was obtained from the envelope accompanying the documents and utilised to access the incomplete tracking report.  At the same time, there is no countervailing evidence before the Court to explain how Mr Dale ostensibly obtained the incomplete tracking report exhibited to his first affidavit or why it is evidently dated 2 January 2024.
76	A notable feature of this case is that the defendant has not adduced any direct evidence from its director Mr Nadinic, or from any employee, on the question of non-delivery of the statutory demand.  As I have already observed, there is no evidence of the circumstances in which the defendant is said to have vacated the South Yarra address, precisely when this occurred, and what steps, if any, were taken to update the ASIC record.  Instead, there are two affidavits by the defendant’s solicitor, who deposes to matters on information and belief and otherwise refers to incomplete records of Australia Post.  Even if the South Yarra address was unoccupied at the relevant time (as Mr Nadinic has instructed Mr Dale), there is no evidence to suggest delivery to the defendant’s registered office was physically impossible.  
77	I accept the evidence obtained from Australia Post is not a perfect account of what transpired between the posting of the statutory demand on 20 December 2023 and the demand being returned to sender on 29 December 2023.  However, taken as a whole, the documentation from Australia Post supports the conclusion that the documents were actually delivered to the South Yarra address on 22 December 2023 at 12:33pm.  In my view, the contemporaneous business records of Australia Post are to be preferred over accounts of conversations between Mr Dale and Australia Post employees, which are likely hearsay in any event.  
78	I also accept the evidence admits of the possibility the envelope was never left at the South Yarra address on 22 December 2023 but was instead retained by an Australia Post delivery representative over the Christmas holiday period, before a further attempt at delivery was made on 29 December 2023.  However, a mere possibility is not enough.  The defendant must establish upon the evidence that delivery is the most improbable inference to be drawn or, conversely, that non-delivery is the most probable inference.  It has not done so.  It follows that the presumption of service arising from s 29(1) of the AIA has not been displaced. 
79	In this case, there is no need to have recourse to the ‘presumed time of service limb’ in s 29(1) of the AIA, or the presumption found in s 160 of the Evidence Act to calculate the date of delivery.  Here, the weight of the evidence suggests that, on the balance of probabilities, the documents were delivered to the South Yarra address on 22 December 2023.  This is a date not less than 21 days before the filing of the winding up application on 15 January 2024.  Further, because there has been effective service of the statutory demand by post, the statutory presumption of insolvency in s 459C(2)(a) of the Act is available to the plaintiff.
	Was there effective informal service of statutory demand by email?
80	In the event I am wrong about service of the statutory demand by post, I am of the opinion that the 20 December email constituted effective informal service of the demand.  I hold that view because:
(a)	the 20 December email was sent to Mr Dale, the solicitor on the record for the defendant in the VCAT proceeding.  The VCAT orders, which Mr Dale sought to stay, underpin the demand.  Even though Mr Dale is a lawyer at an external law firm, he had significant involvement in the litigation which preceded the demand.  Mr Dale was an appropriate person to give notice of the demand;
(b)	there is no dispute that Mr Dale actually received the email and its attachments;
(c)	when responding to the email on 15 January 2024, Mr Dale did not state he no longer acted for the defendant.  Instead, he expressly stated he would be seeking instructions on the matter and would revert to the plaintiff;
(d)	even if Mr Dale was himself not the appropriate person to give notice of the demand, it can be safely inferred that he sought instructions from Roxton’s sole director, Mr Nadinic, who was at least implicitly authorised by Roxton to deal directly with the demand.  Further, it can be inferred that Mr Dale likely provided the demand to Mr Nadinic for the purpose of obtaining those instructions.  The fact that the 20 December email did not specifically request that the documents be provided to a responsible officer of Roxton is not determinative;
(e)	whilst the 20 December email attached the documents ‘as a courtesy’ and noted the documents would be posted to the registered office of the defendant in due course, the email did not assert that service had already occurred by post or that the demand had already expired unsatisfied.  Further, the fact the 20 December email did not state it was intended to constitute service is not critical.  I am not aware of any such requirement for effective informal service to apply.  In fact, in the present circumstances, such an assertion would have been potentially confusing given the letter foreshadowed the posting of the documents; 
(f)	although Mr Dale says he was on leave at the time the 20 December email was sent, he does not positively state that he only read the email upon his return from leave on 15 January 2024; and
(g)	I reject the argument that effective informal service is unavailable because it was not referred to in the originating process dated 15 January 2024 and the defendant was not on notice of the point.  The defendant first contended that service of the statutory demand by post was ineffective in its notice of appearance dated 13 February 2024.  It then filed evidence on this question on 3 April 2024 in the form of the first Dale affidavit.  The plaintiff now makes an alternative argument of informal service in response to the position adopted by the defendant.
81	There is good authority that in circumstances where there is informal service by email, service is taken to occur when the email is received, but not necessarily when the email is brought to the attention of a responsible officer.  Further, as Gardiner AsJ observed in Re Canungra, that position appears to have been codified in s 105A of the Act, which makes provision for when electronic communications are sent and received.  That provision relevantly states:
(1)	This section applies in relation to an electronic communication unless otherwise agreed between the originator and the addressee of the electronic communication.
(2)	An electronic communication is sent:
(a)	when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; or
(b)	if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator--when the electronic communication is received by the addressee.
…
(4)	An electronic communication is received when the electronic communication becomes capable of being retrieved by the addressee at the addressee’s nominated electronic address.
(5)	It is to be assumed that an electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s nominated electronic address.
[emphasis added]
82	The expression ‘nominated electronic address’ is defined in s 9 of the Act to relevantly mean:  
(a)	the most recent electronic address nominated by the addressee to the originator of the electronic communication as the electronic address for receiving electronic communications; or
(b)	if:
…
(ii)	the addressee has not nominated an electronic address as mentioned in paragraph (a);
an electronic address that the originator believes on reasonable grounds to be a current electronic address for the addressee for receiving electronic communications.
83	Whilst there is no direct evidence that Mr Dale’s email address was an address nominated by the defendant,  it may be inferred that Mr Dale used his email address when representing Roxton in the VCAT proceeding.  Why else would Ms Kozakis use that email address?  The email address to which the 20 December email was sent was therefore either the defendant’s nominated electronic address or an electronic address Ms Kozakis believed on reasonable grounds to be a current electronic address for the defendant.  However, even if s 105A does not apply, in accordance with the case law, service was taken to occur when the 20 December email was received.  It follows there was effective informal service of the 20 December email on that date.  That was when it was sent by Ms Kozakis and received into Mr Dale’s email inbox or became capable of being retrieved by Mr Dale (adopting the language of the statute).  
84	If I am incorrect about the date the 20 December email was received, it would have been received at the very latest by 15 January 2024, when Mr Dale provided his response.  On that basis, the statutory demand would not have expired unsatisfied when the plaintiff filed his originating process on 15 January 2024.  However, where a winding up application is made before the time for compliance with a statutory demand has expired, a creditor may still rely on the statutory presumption of insolvency afforded by s 459C(2)(a) of the Act, so long as the statutory demand has expired unsatisfied by the time of hearing.  Although an originating process will be defective for failure to meet the requirements of s 459Q of the Act, it is not invalid and the Court may give a creditor leave to amend the originating process pursuant to ss 467 and 467A of the Act.  However, given my primary finding is that service occurred by registered post on 22 December 2023, a remedial order is not necessary.
	Solvency
85	Because there has been effective service of the statutory demand, the statutory presumption of insolvency found in s 459C(2)(a) of the Act applies.  According to s 459C(3) of the Act, the presumption of insolvency operates unless the contrary is proved.  The onus of displacing the statutory presumption of insolvency and establishing solvency rests squarely with the debtor company and is determined on the balance of probabilities.
86	Despite the fact the defendant previously opposed the application on the basis of its purported solvency, and obtained two adjournments for the purpose of filing evidence to establish its solvency, the defendant did not lead any evidence on the question.  Moreover, at the hearing, counsel for the defendant confirmed he would make no submissions on the question of solvency.  
87	It follows that the statutory presumption of insolvency has not been rebutted and the defendant is deemed to be insolvent.  
	Other matters and the Court’s discretion
88	In the first Dale affidavit, Mr Dale makes a number of assertions which neither relate to the service of the statutory demand nor the question of solvency, including that:  
(a)	the ABN 55 206 506 305 associated with the plaintiff does not appear to be registered for GST;
(b)	the business name ‘Tom Patterson Roofing and Carpentry’ under which the plaintiff purports to operate does not exist.  A different business bearing the name of ‘TP Roofing & Carpentry’ was registered on 30 January 2018;
(c)	Tom Patterson Roofing Co Pty Ltd is a company operated by the plaintiff and his wife; and
(d)	it is unclear in whose favour the debt was incurred.
89	It is uncertain whether, by these statements, the defendant is intending to contest the underlying debt.  If so, it ought to have applied for leave pursuant to s 459S of the Act to oppose the winding up application on a ground or grounds it could have relied on for the purpose of an application to set the demand aside.  It did not.  
90	It may be these matters were referred to in connection with the defendant’s remaining ground of opposition, namely that the Court should not make a winding up order as a matter of discretion.  This ground was also not developed at the hearing.  
91	Section 467(1)(a) of the Act provides that, on hearing a winding up application, the Court may dismiss the application with or without costs, even if a ground has been proved on which the Court may order the company to be wound up.  The Court’s discretion under s 467(1) must be exercised judicially, taking into account all relevant considerations, including the interests of justice, fairness to the parties and the interests of creditors.  
92	I do not consider that the additional matters raised in Mr Dale’s first affidavit justify the exercise of the Court’s discretion under s 467(1) of the Act.  There is no reason to go behind the VCAT orders.  To allow such arguments in support of the exercise of the discretion in s 467(1), would circumvent the strict requirements of s 459S.  At the same time, I am conscious there are three other creditors who support the making of a winding up order.  I decline to dismiss the winding up proceeding as a matter of discretion.
	Conclusion
93	For the reasons provided, the defendant has failed to rebut the statutory presumptions of service and insolvency.  It is necessary to make a procedural order to extend the time for lodgement of the Form 519 Notice with ASIC, as the notice was slightly late.  Otherwise, given the defendant is presumed to be insolvent and all other necessary procedural steps have been addressed, the defendant should be wound up without further delay.  Appropriate orders will follow.

SCHEDULE OF PARTIES

		
	S ECI 2024 00174	

BETWEEN:		

THOMAS PATTERSON T/AS TOM PATTERSON ROOFING AND CARPENTRY 
(ABN 55 206 506 305)	Plaintiff 	
		
- v -		
		
ROXTON COMMERCIAL BUILDERS PTY LTD 
(ACN 616 908 073)	Defendant	
		
- and - 	  	
		
SAMCO STEEL & PRECAST PTY LTD 
(ACN 158 108 653)	Other Party 	
		
PC INFRASTRUCTURE PTY LTD AS TRUSTEE FOR THE PC INFRASTRUCTURE TRUST 
(ABN 44 906 597 593)	Other Party 	
		
DEA CONCRETING PTY LTD (ACN 650 706 193)	Other Party