FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Starpicket Pty Ltd [2012] FCA 1196 

Citation:	Deputy Commissioner of Taxation v Starpicket Pty Ltd [2012] FCA 1196	
		
Parties:	DEPUTY COMMISSIONER OF TAXATION v STARPICKET PTY LTD ACN 125 918 550 (IN LIQUIDATION), CHRISTOPHER MUNDAY AS LIQUIDATOR FOR STARPICKET PTY LTD ACN 125 918 550 (IN LIQUIDATION) and CRAIG WHEATLEY SCOTT AND PATRINA MAREE SCOTT	
		
File number:	QUD 433 of 2012	
		
Judge:	GREENWOOD J	
		
Date of judgment:	31 October 2012  	
		
Catchwords:	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	
		
Legislation:	Federal Courts Rules 2011, r 39.05
Corporations Act 2001 (Cth), ss 5C(2), 109X, 471A, 482
Australian Postal Corporation Act 1989 (Cth), s 32
Evidence Act 1995 (Cth), ss 160, 163
Acts Interpretation Act 1901 (Cth), ss 28A, 29 	
		
Cases cited:	Deputy Commissioner of Taxation v ABW Design & Construction Pty Ltd [2012] FCA 346 - cited
Pearlburst Pty Ltd v Summers Resort Group Pty Ltd; Landmark Leisure Group Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126 - cited
Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill (2007) 70 NSWLR 176 - cited
Hewitt v Leicester City Council [1969] 1 WLR 855 - cited
Deputy Commissioner of Taxation, in the matter of Manta’s on the Beach Pty Ltd v Manta’s on the Beach Pty Ltd [2012] FCA 417 - cited
Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 - cited
Expile Pty Ltd v Jabb’s Excavations Pty Ltd (2003) 45 ACSR 711 - cited
Australian Securities and Investments Commission v Plymin & Others (2003) 175 FLR 124 -cited
Deputy Commissioner of Taxation v Barroleg Pty Ltd (1997) 25 ACSR 167 - cited
De Montfort v Southern Cross Exploration NL (1987) 17 NSWLR 468 - cited  	
		
Date of hearing:	25 October 2012	
		
Date of last submissions:	25 October 2012	
		
Place:	Brisbane	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	87	
		
Solicitor for the Applicant	Mr M Henry of the Australian Government Solicitor	
		
Counsel for the First and Third Respondent	Mr C Johnstone	
		
Solicitor for the First and Third Respondent	Bennett & Philp Lawyers	
		
Solicitor for the Second Respondent	Mr S Eggins of Allens	

IN THE FEDERAL COURT OF AUSTRALIA		
QUEENSLAND DISTRICT REGISTRY		
GENERAL DIVISION	QUD 433 of 2012	
 
BETWEEN:	DEPUTY COMMISSIONER OF TAXATION
Applicant
	
AND:	STARPICKET PTY LTD ACN 125 918 550 (IN LIQUIDATION)
First Respondent

CHRISTOPHER MUNDAY AS LIQUIDATOR FOR STARPICKET PTY LTD ACN 125 918 550 (IN LIQUIDATION)
Second Respondent

CRAIG WHEATLEY SCOTT AND PATRINA MAREE SCOTT
Third Respondent

JUDGE:	GREENWOOD J	
DATE OF ORDER:	31 OCTOBER 2012	
WHERE MADE:	BRISBANE	

THE COURT ORDERS THAT:

1.	The Orders made by District Registrar Baldwin on 5 October 2012 are set aside.
2.	The Third Respondent is ordered to pay the costs of the Plaintiff incurred by the Plaintiff in connection with applying for and entering the Orders of 5 October 2012 confined to those costs thrown away by reason of setting aside the Orders of 5 October 2012.
3.	The costs of Mr Christopher Munday of and incidental to the winding-up are reserved for further argument.
4.	The Plaintiff is to file any further affidavits upon which the Plaintiff relies in support of an application for a winding-up order in insolvency, on the ground of general insolvency, within 7 days.
5.	The First and Third Respondents are to file any affidavits upon which they rely on the issue of the solvency of the First Respondent, within a further 7 days.
6.	The hearing of an application for an order that the First Respondent be wound-up in insolvency, on the ground of general insolvency, will be heard on a date to be nominated by a Deputy District Registrar of the Court.
7.	The costs of the Plaintiff of and incidental to the application by the Third Respondent for an order setting aside the Orders of District Registrar Baldwin of 5 October 2012 be paid by the Third Respondent.  

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA		
QUEENSLAND DISTRICT REGISTRY		
GENERAL DIVISION	QUD 433 of 2012	
 
BETWEEN:	DEPUTY COMMISSIONER OF TAXATION
Applicant
	
AND:	STARPICKET PTY LTD ACN 125 918 550 (IN LIQUIDATION)
First Respondent

CHRISTOPHER MUNDAY AS LIQUIDATOR FOR STARPICKET PTY LTD ACN 125 918 550 (IN LIQUIDATION)
Second Respondent

CRAIG WHEATLEY SCOTT AND PATRINA MAREE SCOTT
Third Respondent

JUDGE:	GREENWOOD J	
DATE:	31 OCTOBER 2012	
PLACE:	BRISBANE	

REASONS FOR JUDGMENT
1		These proceedings are concerned with an amended interlocutory application filed on 16 October 2012 made by Starpicket Pty Ltd (“Starpicket”) and Craig Wheatley Scott and Patrina Maree Scott (non-parties at that point) by which the applicants seek an order under rule 39.05 of the Federal Court Rules 2011 that the order of the District Registrar Baldwin, made on 5 October 2012 that Starpicket be wound-up in insolvency under the provisions of the Corporations Act 2001 (Cth) (the “Corporations Act”) be set aside.  
2		Craig Scott is the sole director of Starpicket.
3		Craig Scott and his wife Patrina Scott are the holders of all of the issued shares in the company.  
4		On 18 October 2012 by orders of Collier J, the Official Liquidator, Mr Christopher Munday, was joined as the second respondent.  Mr and Mrs Scott (“the Scotts”) were also joined as the third respondent.  Mr Munday on 18 October 2012 gave an undertaking to the Court not to take any steps (save in relation to completing a stocktake; completing a valuation process; and dealing with goods the subject of retention of title claims) to sell any of the assets of Starpicket without giving two business days’ notice to the Scotts or without the express written consent of the Scotts.
5		The applicants also seek an order that the Deputy Commissioner of Taxation pay the costs of this application.
6		Alternatively to the order sought under rule 39.05, an order is sought under s 482 of the Corporations Act that the winding-up of Starpicket “be terminated immediately”.
7		The application was set down on 18 October 2012 by Collier J for final hearing on 25 October 2012.  
8		The liquidator abides by the decision of the Court on this application.  Mr Scott was given leave under s 471A of the Corporations Act to exercise a function or power as an officer of the company for the purposes of making this application.
9		The background facts out of which the application arises are these.
10		The records of the Australian Securities and Investment Commission (“ASIC”) maintained under Part 9.1 of the Corporations Act record that Starpicket was registered on 13  June 2007.  Its “Current Registered Office” is recorded as “127 Alfred Street, Charleville, Qld, 4470”.  The start date for that place or address as the registered office of Starpicket is 13 June 2007.  It has never changed so far as the ASIC records are concerned and the Scotts do not suggest otherwise.  The “Current Principal Place of Business” is also recorded as “127 Alfred Street, Charleville, Qld, 4470”.  Mr Scott deposes in his affidavit sworn and filed 16 October 2012 that this is “the address from which the Company trades”.  
11		Mr Scott also gives this evidence.
12		  Starpicket was incorporated for the purpose of enabling the Scotts to purchase in 2008 a business which became the business undertaking of the company.  The company paid $400,000.00 (exclusive of goods and services tax) for the business together with $243,000.00 for the stock.  It employed at that time four staff, had an annual turnover of $1.6million and held $250,000.00 in stock.  Mr Scott describes the activities of the company in this way:
5.	The Company, through its Business, is a major supplier of auto parts and has a customer base which includes, graziers, local government, earthmoving contractors, Royal Flying Doctors, Queensland Health, meat processing plants, Queensland Rail, transport operations and local garages.

6.	The Company does not undertake any other trading.

7.	The Business is the only major supplier of this type within a 250km radius [of Charleville] …

13		Mr Scott says that he and his wife have grown the business of the company to the point where it now employs nine staff, has an annual turnover in excess of $3million and at the date of appointment of the liquidator, 5 October 2012, had stock to the value of $1.2million.  The financial accounts seem to suggest that the reference to $1.2million is properly understood as retained earnings.  So far as Mr Scott’s affidavit is concerned, he describes that amount as the value of the stock.  
14		As to the division of responsibility in the management and administration of the company’s undertaking, Mr Scott says that he is the person who operates the business of the company and he is the main decision-maker in relation to matters such as ordering stock and overseeing the running of procurement and supply.  Mrs Scott controls the administrative side of the business undertaking including maintaining business records, accounts receivable and payable, and payment of wages.  Mr Scott says that three of the nine staff have been employed by the company since 2008 and the remaining five have been long-term employees.  Mr Scott says that he and his wife are continuing to pay wages to the staff out of their own funds until this application is determined.  
15		Clearly enough, by 2008, there was a business undertaking being conducted at 127 Alfred Street, Charleville, that engaged Mr and Mrs Scott and four employees, and that undertaking seemed to have, first, a business presence in the Charleville (and surrounds) market as a supplier of auto parts and, second, a measurable value of $400,000.00 reflecting, to a degree, its business presence in the area.  By 2012 that business had grown in the way earlier described to include nine staff members, the continuing engagement of the Scotts and a turnover of $3million.  
16		In the same street not far from number 127 Alfred Street is the Charleville Post Office at 63 Alfred Street.  
17		On 29 May 2012 Mr Graeme Walsh, an employee of the Australian Taxation Office (ATO) placed a number of documents inside an envelope which he addressed as follows: “Starpicket Pty Ltd 127 Alfred Street, Charleville Qld 4470”.  He then affixed a 60 cent stamp to the front of the envelope and posted the envelope by placing it in the Australia Post mailbox located at Station Street, Penrith, New South Wales at 12.02p.m. on 29 May 2012.  The documents enclosed in the envelope by Mr Walsh were a creditor’s statutory demand for payment under s 459E of the Corporations Act signed by the Deputy Commissioner of Taxation asserting a debt due to the Commonwealth of $315,939.23; and, an affidavit sworn by Mr Walsh on 29 May 2012 in relation to that demand.  After posting the envelope, Mr Walsh made an entry into the database records of the ATO concerning the dispatch of those documents by letter in the way described.  
18		Mr Walsh also says that prior to posting the letter he made a photocopy of the sealed, stamped and addressed envelope containing the demand and supporting affidavit.  A copy of the photocopy is “GW2” and it shows the envelope addressed as described, and marked in typewritten form, with this endorsement at the top:
PERSONAL
If undeliverable please return to 
PO Box 9990 PENRITH NSW 2751.

19		Starpicket did not respond to the statutory demand.
20		On 28 August 2012 the Deputy Commissioner of Taxation filed an application under s459P of the Corporations Act for an order under s 459A of that Act that Starpicket be wound-up in insolvency in reliance upon the facts asserted in the supporting affidavits.  The facts asserted in Mr Jeganathan’s supporting affidavit were that Starpicket was indebted to the Deputy Commissioner in an amount of $315,939.23 which sum was then due to the Commonwealth of Australia; a statutory demand had been made under s 459E which had been “served” by posting the demand on 29 May 2012 by pre-paid post to the registered office of the defendant; Starpicket had failed to pay the amount of the debt so demanded within 21 days after the demand was served; and, “after conducting a search of the records maintained by the Plaintiff, none of the documents [the documents posted on 29 May 2012] have been returned to the Plaintiff through the postal system”. 
21		Ms Jennifer Jones, an employee of the Australian Government Solicitor, says in her affidavit sworn on 4 September 2012 that on 30 August 2012 she placed a number of documents in an envelope addressed to Starpicket Pty Ltd “at the registered office at 127 Alfred Street, Charleville Qld 4470” and posted the envelope “by ordinary post to the said address”.  Ms Jones says that the enclosed documents were the originating process of 28 August 2012 (including attachments A and B); a copy of Mr Jeganathan’s affidavit of 27 August 2012 (and attachment A); a copy of Mr Walsh’s affidavit of 29 May 2012 together with attachments GW1, GW2 and GW3; and the consent of the liquidator.  These documents comprise 31 pages or 16 double-sided sheets.  Ms Jones does not describe in her affidavit the amount of the pre-paid postage affixed to the envelope containing these documents (which by reason of the weight was presumably greater than 60 cents).  Nor does Ms Jones say where the envelope was posted (which post office or post box).  Nor is there annexed to the affidavit, a copy of a photocopy of the envelope before posting.  
22		Mr Henry, a lawyer employed by the Australian Government Solicitor who appeared on this application for the Deputy Commissioner of Taxation, in his affidavit sworn 23 October 2012 swears that he is informed by reading the affidavit of Ms Jones sworn 4 September 2012 that the documents were sealed inside an envelope clearly marked as follows:
Australian Government Solicitor 

If undeliverable please return to
GPO Box 1408
BRISBANE  QLD 4001.

23		Mr Henry then says that a copy of the face of the envelope containing the winding-up documents posted to Starpicket is annexed to his affidavit marked MGH-1.  
24		Ms Jones, however, does not attach or fully describe in her affidavit of 4 September 2012 such an envelope, and the source of Mr Henry’s information is Ms Jones’s affidavit.
25		Ms Jones has not sworn a further affidavit deposing to having taken a photocopy of the envelope prior to posting, with a true copy of the photocopy attached to such an affidavit.  
26		Mr Scott in his affidavit of 16 October 2012 says that he now understands that the statutory demand and later the originating application and supporting affidavits, were sent by pre-paid post to the company’s registered office.  He says that none of these documents were delivered to the company and neither he nor his wife received them.
27		The explanation given for that result is this.
28		Starpicket has always maintained a Post Office Box (PO Box 623) under the trading name “Outback Spares” with Australia Post at the Charleville Post Office.  All mail for the business called Outback Spares is delivered by Australia Post to PO Box 623.  Either Mr Scott or a company staff member collects the mail from the post office once or twice a day Monday to Friday.  The mail is then brought back to the business premises and opened by Mr Scott.  The mail is sorted by him according to correspondence, invoices, receipts, cheques, business to business electronic transfers or other relevant categories.  Mr Scott says that this system would have brought the statutory demand and later the originating documentation for the winding-up application to his attention had it been placed by Australia Post in PO Box 623.  
29		Mr Scott says that whilst he is aware that the company’s registered office is 127 Alfred Street, Charleville, Qld, 4470, the company does not conduct its business under the name Starpicket.  He says Starpicket Pty Ltd does not usually receive much mail and the mail it does receive is addressed to the company’s accountant.  He also says that, to his knowledge, no mail addressed to the company “has ever been delivered to the address of its registered office”.
30		Mr Scott says that he first became aware of the Orders of 5 October 2012 when he received a phone call from Mr Flannery of Ernst & Young on behalf of Mr Munday, on 8 October 2012.  Mr Flannery told him that the company had been wound-up and that representatives of the liquidator would attend the business the following week to assume control of the undertaking.  
31		Division 1 of Pt 4 of the Australian Postal Corporation Act 1989 (Cth) provides for the terms and conditions applying to services provided by Australia Post.  Section 32 provides that subject to any express provision of the Act or any other Act, the terms and conditions of a service supplied by Australia Post for a person are: (a) so far as Australia Post and the person agree on terms and conditions for the supply of this service – the agreed terms and conditions; and (b) so far as Australia Post and the person do not agree on terms and conditions – the terms and conditions determined by the Board that are applicable to the supply of the service [emphasis added].
32		Section 32(2) provides that the terms and conditions determined by the Board may make provision with respect to the kinds of articles that may be carried, the carriage of letters and other postal articles, weights of postage, the payment of postage, the carriage of letters to or from an office of Australia Post, and undelivered letters and other articles.  Section 32(3) provides that the Board shall ensure that copies of a determination made by it under s 32 are made available for inspection and purchase at all offices of Australia Post as soon as practicable after having been made.
33		The Board of Australia Post has determined terms and conditions for the carriage of letters for the purposes of s 32(2) of the Australian Postal Corporation Act which apply from 1 July 2001 to the postal and related service to which they refer.  Term 16.1 contemplates that Australia Post will use its best endeavours to deliver articles in accordance with Appendix 2.  Appendix 2 addresses “street mail service – conditions of delivery”.  As to the “methods of delivery to retail shops and businesses”, Appendix 2 provides that in the case of a single-tenancy shop or business that abuts a footpath, Australia Post will deliver articles to a mail box that meets Australia Post’s standards for size, location and numbering, or “to a staffed counter or reception area close to the entrance of the shop or business”.  
34		In these proceedings, Starpicket relies upon two affidavits of employees of Australia Post. 
35		In her affidavit sworn 24 October 2012, Ms Lorraine Russell says this.
36		Ms Russell is employed as an Australia Post Assistant Manager in Charleville.  She has been employed by Australia Post for 10 years.  She says that she is aware that there is a dispute between Starpicket and a creditor about Australia Post delivering letters to premises at 127 Alfred Street, Charleville which is the registered office of Starpicket Pty Ltd and where the business, Outback Spares, trades.  She says that over the past two weeks prior to swearing her affidavit, she has been contacted by a number of people who have asked her whether or not Australia Post delivers articles to 127 Alfred Street, Charleville.   She says that, in all circumstances, she has confirmed with those persons that Australia Post does not deliver letters to 127 Alfred Street, Charleville as it is not “on the Australia Post delivery frame”.  She says that on 16 October 2012 she sent an email to Ms Dore of the solicitors for Starpicket, and that the contents of that email are true and correct.
37		In that email Ms Russell said:
There is no 127 Alfred Street on sorting frame at Charleville Post Office as stated by Noel Saffy.

This is a valid postal address however Australia Post do not deliver to this address.

38		Ms Russell says that in the event that Australia Post receives letters addressed to 127 Alfred Street, Charleville, Queensland 4470, the staff at Australia Post would redirect that letter or return it to sender.  Ms Russell also says this:
On occasions, the staff at the post office in Charleville (such as myself) who are aware that Starpicket Pty Ltd is associated with Outback Spares, may put the letter addressed to Starpicket Pty Ltd 127 Alfred Street, Charleville in the Outback Spares post office box, however, it depends who is working on the day and whether or not that person is aware the Starpicket Pty Ltd and Outback Spares are associated.

[Emphasis added.]

39		Mr Noel Saffy also swore an affidavit on 25 October 2012.
40		In that affidavit Mr Saffy says that he is an employee of Australia Post and he is responsible for delivering letters in the town of Charleville.  He says this:
2.	I do not deliver letters to the address of 127 Alfred Street, Charleville as it is not on the Australia Post deliver[y] frames.

3.	In the event that Australia Post was to receive letters addressed to 127 Alfred Street, Charleville, Queensland 4470, I would redirect that letter or return it to sender.  

[Emphasis added.]

41		So, it seems clear enough that, so far as Australia Post is concerned, if a third party (such as any citizen having reason to engage with Starpicket Pty Ltd) writes a letter to the company at its registered office, having established the relevant registered address by searching the ASIC record of registered information, the letter will not be delivered to that address by Australia Post.  That follows because, although 127 Alfred Street, Charleville is, as Ms Russell says, “a valid postal address”, that address is not recorded on Australia Post’s “sorting frame” for delivery of letters.  In other words, for all practical delivery purposes, 127 Alfred Street, Charleville, Queensland 4470 which, put anecdotally, is just along the street from the post office at 63 Alfred Street, does not exist, notwithstanding that it has two owners and nine employees carrying on a business that turns over $3million from the site, in premises for that purpose on the site.  
42		The third party’s letter may or may not “reach” the company indirectly.
43		It might do so in one of two ways.
44		First, if a staff member of the Post Office in Charleville associates Startpicket Pty Ltd with Outback Spares, a letter addressed to the company at 127 Alfred Street, Charleville, Qld, 4470, might be placed in PO Box 623, but that “depends [on] who is working on the day and whether or not that person is aware that Starpicket Pty Ltd and Outback Spares are associated”.
45		Second, should Mr Saffy be dealing with the letter, he “would redirect” that letter or return it to sender.  It is not clear from Mr Saffy’s affidavit whether he “would redirect” such a letter because he knows and understands that Starpicket is associated with Outback Spares and thus redirect it to “Outback Spares”, or whether he would redirect the letter if a redirection arrangement has actually been established between the customer Starpicket Pty Ltd and Australia Post.  If no such redirection is in place, a question remains about whether a third party’s letter would, in fact, be redirected to PO Box 623 or not.  
46		It seems odd that a letter correctly addressed to Starpicket at its registered office which is directed to a real place and one from which the company in fact trades, will not be delivered to that address by Australia Post, because, for one reason or another, that place or address for such a place is not on Australia Post’s “sorting frame”.
47		The parties have also put on affidavits deposing to conversations or exchanges with employees of Australia Post employed either at the Charleville Post Office or as part of an inquiry service provided by Australia Post (see the affidavits of Mr and Mrs Scott, Ms Dore and Mr Henry).  I propose to admit the affidavits.  The evidence, in essence, is consistent with the evidence given by Ms Russell and Mr Saffy.  The evidence goes a little further in this respect.  In a meeting between Mr and Mrs Scott and Ms Russell on 12 October 2012, Ms Russell told Mr Scott that any mail addressed to 127 Alfred Street, Charleville received at the Charleville Post Office would either be marked returned to sender or redirected if a redirection was in place.  
48		Mr Scott does not suggest that he had put in place any redirection so as to ensure that mail addressed to Starpicket at its registered office would then be placed in the company’s PO Box 623 at the Charleville Post Office.  
49		As already mentioned, Mr Scott says that “to his knowledge” no mail addressed to the company has “ever been delivered to the address of its registered office” which presumably covers the period from the company’s acquisition of the business in 2008 to October 2012, approximately four years.  Mr Scott says that Ms Russell observed that as far as she was aware, Australia Post had never delivered mail addressed to the company at 127 Alfred Street, Charleville to that address.  At para 21 of his affidavit of 16 October 2012, Mr Scott says that neither he (as director) nor his wife has “ever requested a redirection service” for mail or articles addressed to the company at its registered office.
50		The position on the evidence seems to be that in the ordinary course of mail (or postal) communications, a third party who sends a letter or article to Starpicket Pty Ltd is likely to suffer the fate of the letter or article being returned to sender by Australia Post, or depending upon circumstance or luck or the state of knowledge of the particular Australia Post employee on duty on the day, the letter or article might be placed in the company’s PO Box 623 operated under the name “Outback Spares”.  
51		Mr Scott has not put in place any redirection to ensure that letters or articles come to his attention.  The combination of Australia Post’s practice of choosing not to deliver to a real and operational properly identified place (address) in the same street as the post office (instead of simply taking the letter or article to the actual address nominated by the third party sender) and Mr Scott’s failure to establish a redirection of mail from the company’s registered office to its daily working PO Box number, has in a real and practical sense, defeated, on the facts at least, any third party’s reliance upon the registered office for the company recorded with ASIC for the purposes of transmitting letters or articles to Starpicket Pty Ltd by pre-paid post to its registered office.  
52		The question is whether it has done so, as a matter of law.
53		Before turning to that question, some further aspects of the facts should be mentioned.  Mr Henry who appeared for the Deputy Commissioner of Taxation elected not to cross-examine Mr or Mrs Scott.  
54		The evidence of the Scotts is unchallenged.  
55		However, Mr Henry says, in effect, that there are three anomalies in the evidence of the Scotts that suggest that an inference should be drawn that the statutory demand, and later, the originating application and related documents, must have been put into the company’s PO Box 623 at the Charleville Post Office, apart from what is said to be the powerful fact supporting an inference of delivery, that neither the letter containing the statutory demand nor the letter containing the originating application and related documents, has been returned to the sender of those documents.  Mr Henry says, in effect, that perhaps one non-returned letter suggests something but two non-returned letters suggests an inference that each of the letters must have been delivered to the company by being redirected by Australia Post employees to PO Box 623.  
56		The three anomalies suggesting an inference are said to be these.
57		First, it is highly unlikely that over the whole of the commercial life of the company from 2008, no mail addressed to the company has ever been delivered to 127 Alfred Street, Charleville, Qld 4470, as Mr Scott contends.  
58		Second, Mr Flannery says in his affidavit sworn 23 October 2012 that during one of his attendances to the premises on behalf of Mr Munday, he found two unopened letters addressed to Starpicket Pty Ltd at 127 Alfred Street, Charleville, Queensland 4470, from the ATO.  Mr Flannery says that he opened the letters.  They are “JPF-1” to his affidavit.  They are both dated 21 February 2012 and relate to estimates by the Deputy Commissioner of Taxation of the company’s liability for PAYG withholding amounts for particular periods.  Apart from these two letters, Mr Flannery says he also found two additional letters (“JPF-2”) at the premises which letters had been opened.  They are a letter from Darling Downs Insurance Brokers Pty Ltd to “Starpicket Pty Ltd” T/A Outback Spares, 127 Alfred St., Charleville, Qld, 4470 dated 8 November 2011 and a letter from Capital Finance Australia Limited to Starpicket P/L, 127 Alfred Street, Charleville, Qld, 4470.  
59		The letter from the brokers of 8 November 2011 may well have been placed in PO Box 623 as it seems to be addressed to the company “[trading as] Outback Spares”.  Mr Henry says that letters addressed to the company at its registered office address have, in fact, “reached those premises”.  
60		Third, Mr Quoc Tran, an employee of the ATO, says in his affidavit sworn 23 October 2012 that on 15 August 2011 the Deputy Commissioner caused Starpicket to be served with a creditor’s statutory demand under the Corporations Act and accompanying affidavit by sending the documents by pre-paid post to the company at its registered office address.  Other documents were later sent in the same way to Starpicket and Mr Scott responded to them.  Mr Henry says that Starpicket seemed to receive these documents (at least as to the statutory demand) and an inference is open, it is said, that the statutory demand now in issue and the originating application (and accompanying documents) were each delivered to the company through the mechanism of Australia Post placing those documents in the company’s PO Box at the Charleville Post Office.
61		In his affidavit sworn 24 October 2012 Mr Scott says that he believes the two unopened letters from the ATO dated 21 February 2012 found by Mr Flannery must have been put into the PO Box for Outback Spares by one of the staff members of the Charleville Post Office who knew of an association between the company and the business conducted under the name Outback Spares.  Mr Scott believes that he received these two letters and he also believes that on occasions other documents addressed to the company’s registered office address have been placed in the PO Box for Outback Spares maintained at the Charleville Post Office.  As to events in February 2012, Mr Scott says that between 30 January 2012 and 13 February 2012 the business of the company was operating with limited resources due to flood threats.  The business recommenced trading from 13 February 2012.  Mr Scott says that it is possible that the correspondence from the ATO found by Mr Flannery was mislaid.  Mr Scott also says that he did not receive correspondence containing documentation from Ernst & Young sent by that firm to Starpicket at its registered address by registered post notwithstanding that Mr Scott had put in place arrangements to collect mail every day from the Post Office.  
62		It is true that these factors mentioned by Mr Henry suggest an inference that documents addressed to Starpicket at its registered office may well be processed by Australia Post in a way that results in mail being placed in the company’s PO Box at the Charleville Post Office.  However, I am not willing to reject the direct unchallenged evidence of the Scotts, reinforced by the protocols deposed to by Australia Post, to find that the statutory demand and the originating application (and accompanying documents) the subject of the present application were “delivered” to the company at 127 Alfred Street, Charleville or that the documents came into the hands of the company, by its director, by those documents being placed in the company’s PO Box at the Charleville Post Office.  
63		Section 109X of the Corporations Act is well known and provides, relevantly, at s 109X(1) that, for the purposes of any law, a document may be served on a company by either leaving the document at the company’s registered office, or by posting it to the company’s registered office, or by delivery of a copy of the document personally to a director of the company who resides in Australia.  The method of service on the company selected by the Deputy Commissioner of Taxation was posting each letter enclosing the documents by pre-paid post to the company at its registered office.  Neither letter, unlike the circumstances described in Deputy Commissioner of Taxation v ABW Design & Construction Pty Ltd [2012] FCA 346, suffered from a fatal flaw of a failure to correctly recite or transparently reveal the full correct details of the registered office on the letter, as recorded in the ASIC records.
64		Section 109X of the Corporations Act, however, does not affect any provision of “another law” that permits a document to be served in a different way or the power of a Court to authorise a document to be served in a different way: s 109X(6).  Section 109X applies to a provision of a law dealing with service whether it uses the expression “serve” or any similar expression such as “give” or “send”.  The Acts Interpretation Act 1901 (Cth) (the “Interpretation Act”) is “another law” that contains provisions permitting a document to be served in a particular way.  Apart from s 109X(6), s 5C(2) of the Corporations Act has the effect that the Interpretation Act as in force on 1 January 2005 “applies” to the Corporations Act.  
65		Section 28A(1)(b) of the Interpretation Act provides that, for the purposes of any Act that permits a document to be served on a person, the document may be served on a body corporate by “leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate”.  
66		Nothing in s 28A(1) affects the operation of any other Commonwealth law that authorises service of a document otherwise than as provided in s 28A(1)(b): s 28A(2)(a).
67		Section 29 of the Interpretation Act “deems”, without affecting the operation of s 160 of the Evidence Act 1995 (Cth), a certain effect to arise consequent upon a person taking particular postal steps.  Section 29 provides that where an Act authorises any document (broadly defined in s 2B of the Interpretation Act) to be served by post (whether the terms serve, give or send are used), the service shall be deemed to be effected by “properly addressing, pre-paying 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” [emphasis added].
68		In this case, the “ordinary course of post” suggests that a pre-paid, properly addressed (to the registered office) and posted letter (that is, a letter that satisfies the integers of s 29) would, at least be likely, not to be “delivered” at all, by Australia Post.
69		As to s 160 of the Evidence Act, s 160(1) provides that it is presumed, unless evidence sufficient to raise doubt about the presumption is adduced, that a postal article sent by pre-paid post addressed to a person at a specified address in Australia, was received at that address on the fourth working day after having been posted.  Section 160(3) contains a definition of “working day”.  Section 163 of the Evidence Act addresses the topic of proof of letters having been sent by a Commonwealth agency which includes the Deputy Commissioner of Taxation.  Section 163(1) provides that a letter from such an agency addressed to a person at a specified address is presumed, unless evidence sufficient to raise doubt about the presumption is adduced, to have been sent by pre-paid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.
70		Section 163(2) contains a definition of the terms “business day” and “letter”.  
71		The assumption inherent in s 160 in deeming service to be effected by placing a properly addressed pre-paid letter in the post (and s 163 in establishing protocols for proof of letters having been sent by Commonwealth agencies) is that in the ordinary course of human affairs there is high degree of reconciliation between posting a properly addressed pre-paid letter and delivery of that letter to the company or person designed to receive it at the address properly described on the letter (that is, at the place).  
72		Section 109X(1) permits service of a document on a company in the way earlier described by leaving it at or posting it to the company’s registered office.  Each letter was posted, properly addressed, to the registered office of the company.  Section 109X does not expressly provide that service, permitted in this way, might be rebutted.  Nor does s 109X incorporate a deeming provision.  However, s 109X is permissive and facultative only (Deputy Commissioner of Taxation v ABW Design & Construction Pty Ltd [2012] FCA 346) and then only if there is compliance with the pre-conditions: Pearlburst Pty Ltd v Summers Resort Group Pty Ltd; Landmark Leisure Group Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126.  
73		It is predicated on an assumption of delivery.
74		Non-delivery, notwithstanding the exercise of the permission contemplated in s 109X, might be proved by the company on the balance of probabilities.  The deeming or presumptions contained in ss 29, 160 and 163, respectively, of the Acts described above are expressly rebuttable.  The onus of doing so falls upon the applicant seeking to establish non-service.  There is, of course, a distinction between delivery of a letter or postal article to a particular place and its receipt by a particular person.  As White J observed in Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill (2007) 70 NSWLR 176 at [49], there is, however, no distinction between delivery of an article to a place, and its receipt at that place.  
75		In this case, the facts demonstrate on the balance of probabilities that the letters sent by the Deputy Commissioner of Taxation by pre-paid post and properly addressed, to the registered office of the company, were not likely to have been delivered to the relevant place, that is, the registered office of the company.  There is, in this case, proof of non-receipt.  In any event, there is at least evidence sufficient to raise doubt about the presumption for the purposes of s 160 and s 163 of the Evidence Act 1995 (Cth).  I am not satisfied that the letters in issue were delivered to or received at 127 Alfred Street, Charleville in the State of Queensland.  That being so, the presumption cannot operate.  (See: Scope Data at [38]; Hewitt v Leicester City Council [1969] 1 WLR 855 (in the context of an analogous provision); Deputy Commissioner of Taxation, in the matter of Manta’s on the Beach Pty Ltd v Manta’s on the Beach Pty Ltd [2012] FCA 417).
76		It follows that the Order made on 5 October 2012 that the company be wound-up in insolvency ought to be set aside subject to the question of whether the Order is sustainable on the footing that Starpicket is insolvent.  Because, on the facts, I am satisfied that the statutory demand was not served, no presumption arising out of a failure to satisfy that demand within the time limited by the Corporations Act, arises.  The Deputy Commissioner of Taxation contends that in any event Starpicket is insolvent as it has failed to pay any of the amount said to be owing as a debt due to the Commonwealth in respect of Starpicket’s liability to the Commonwealth for amounts of PAYG Withholding Tax and Goods and Services Tax (“GST”).  Mr Quoc Tran in his affidavit relied upon by the Deputy Commissioner says that it was not until 22 January 2012 that Starpicket lodged the Business Activity Statements on behalf of Starpicket as Trustee of the relevant Trust setting out the amount of PAYG Withholding Tax and GST payable by Starpicket to the Commissioner for the period 1 October 2007 to 30 June 2010.  On 30 July 2012, Starpicket lodged Business Activity Statements for the period 1 July 2010 to 30 June 2012.  In the period from the date of first registration of the company on 13 June 2007 to date, Starpicket has not paid any of the tax due to the Commonwealth in respect of Withholding amounts or GST.  The Deputy Commissioner contends that based upon Starpicket’s own returns, the primary taxes payable to the Commonwealth amount to $296,062.00.  The balance of the due debt which is $472,246.13 is comprised of penalties and a general interest charge. 
77		On this footing, consistent with the notions inherent in s 95A of the Corporations Act and the principles explained in Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 at [44] and following; Expile Pty Ltd v Jabb’s Excavations Pty Ltd (2003) 45 ACSR 711 at 718; Australian Securities and Investment Commission v Plymin & Others (2003) 175 FLR 124 at pp 213-214, Starpicket is said by the Deputy Commissioner to be hopelessly insolvent absent any question of non-compliance with a statutory demand under the Corporations Act.
78		There is no doubt that it is open to the Deputy Commissioner to prove insolvency by any means open to it.  Notwithstanding that Starpicket was not served with the originating application and related documents, Starpicket has had those documents since early October (at a date between 8 and 15 October) and, at the date of hearing this application by Starpicket, it has failed, it is said, to demonstrate solvency.  I accept that the affidavit material does not establish solvency on the part of Starpicket.  Where a creditor initially bases its application upon the failure by a company to comply with a statutory demand under the Corporations Act, it will usually be open to the creditor to elect not to rely upon the demand and to prove insolvency in general terms (Deputy Commissioner of Taxation v Barroleg Pty Ltd (1997) 25 ACSR 167.)  However, reliance upon facts going to general insolvency after a creditor has framed its proceeding upon a failure by the company to comply with a statutory demand, is subject to qualification in the sense that if the company is taken by surprise, it might, in all the circumstances of the case, be entitled to an adjournment and further, it may be unjust to wind the company up in insolvency where a creditor has given the debtor the impression that it was only pressing for payment of part of the debt, namely, the debt recited in the statutory demand (see for example, De Montfort v Southern Cross Exploration NL (1987) 17 NSWLR 468 at 471.
79		In these proceedings, the Commissioner has pressed and continues to press for payment of the full amount of Starpicket’s debt due to the Commonwealth.  There is no question of the creditor leading the debtor astray about any aspect of that matter.  However, the creditor has relied upon insolvency as a ground of winding-up on the factual footing set out in the affidavits which are concerned with a failure to pay an amount demanded by a statutory demand made under the Corporations Act.
80		Because Starpicket was required to marshal its resources to address the circumstances of service of the statutory demand and the originating application so as to explain its absence on 5 October 2012, I accept that Starpicket may be taken by surprise to a degree or prejudiced in the preparation of material going to contended insolvency or otherwise.  
81		Starpicket contends that in circumstances of irregularity in service, Starpicket is entitled to an order setting aside, under rule 39.05 of the Federal Court Rules, the winding-up order made on 5 October 2012.  Starpicket contends that in such circumstances of irregularity as discussed in these reasons, the question of solvency simply does not arise as Starpicket is entitled to an order setting aside the winding-up order in any event as it is irregularly obtained and the interests of justice are not served by allowing the order to continue to subsist.
82		There seems to me to be some force in that submission.
83		 However, because I take the view that Starpicket, undistracted by the detailed forensic inquiries which were necessary to understand the position adopted by Australia Post on the service question, ought to be given an opportunity to properly put on material going to solvency, I propose to set aside the orders of 5 October 2012 and make directions for the hearing of the application for a winding-up order on the footing that the Deputy Commissioner will seek to demonstrate, on general grounds of insolvency, that Starpicket is insolvent.  The Directions Orders will provide Starpicket with an opportunity to put on whatever material it seeks to adduce in answer to the proposition that it is insolvent.  
84		Accordingly, the Orders of 5 October 2012 will be set aside and appropriate Directions Orders will be made today.
85		As to the question of costs, the Deputy Commissioner has acted in reliance upon the recorded information contained in the ASIC Database as to the registered office for Starpicket.  It was entitled to rely upon those details for the purpose of addressing envelopes directed to the company at that place.  Had Mr Scott put in place a redirection, those documents would have come to his attention in the ordinary course of his business conduct in accordance with the system he describes.  
86		The costs of the Deputy Commissioner of and incidental to the application are to be paid by Mr and Mrs Scott.  
87		I propose to entertain further submissions on the question of the costs of the liquidator as at least one question has been raised about whether the costs incurred by the liquidator in sending one or more representatives from Melbourne to Charleville either at all or in circumstances where an application had been made to set aside the Order of 5 October 2012, ought to be the subject of an Order.  These factual matters may well be in issue so far as the liquidator is concerned.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.	

Associate:

Dated:	31 October 2012