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Businesses: Check Your Letterbox

posted 5th February 2018
Where’s the mailbox for your company’s registered office? Who checks the mail? Is your mailbox secure? Could you prove that a letter wasn't received?

As a company director you’ve probably never even considered these questions about your company’s registered office. But you should because the courts have held it’s your responsibility to ensure the safe and secure receipt of documents delivered to your registered office.[1]

In accordance with the presumption of service by post, a document delivered to your company’s registered office is presumed to have been effectively served on your company whether the document actually came to your attention or not!

When certain documents are served on your company, you must give those documents your urgent attention as the ramifications of not responding within a certain timeframe can be disastrous. For example, if you fail to respond to a creditor’s statutory demand within 21 days from the date it’s served on your company’s registered office, your company will be deemed insolvent and a creditor can ask the court to wind it up.

It’s imperative that your business has appropriate systems in place to receive and manage mail delivered to its registered office because you may need to rely on those systems to rebut the presumption of service by post.

What’s the presumption of service by post?
For the purpose of any law, a document can be served on a company by posting it to the company’s registered office.[2] A document is presumed to have been effectively served on a company if it’s sent as a letter to the company’s registered address by prepaid post, with service deemed to have been effected at the time when the letter would've been delivered in the ordinary course of post.[3]

Didn’t actually receive the document? You’ll need to rebut the presumption
The courts differentiate between non-delivery (where the document to be served was never delivered) and non-receipt (where the document was delivered but never received by the intended recipient).

Generally, non-receipt is irrelevant to whether the document was served. To rebut the presumption of service, you’ll need to prove non-delivery and the courts take a fair bit of convincing to be satisfied on that point.

How do you prove non-delivery?
Proof that the document was returned to sender by Australia Post will be sufficient proof of non-delivery. However, where a party has started court proceedings by relying on the delivery of a document on your company, it’s probably safe to assume the document wasn’t returned to sender by Australia Post.

If you’re suspicious the document was in fact returned to sender, you may need to apply for an order from the court to force the party seeking to rely on delivery of the document to divulge evidence of the document being returned. Otherwise, you’ll need to show that the court should infer non-delivery by adducing evidence of:

  1. an established system for the receipt of mail at your company’s registered office (including the specific people who deal with the mail and the usual practice for the collection and handling of mail);
  2. the security of mail delivered to your company’s registered office; and
  3. the fact that the people with access to the mail didn’t receive the document.

The courts generally impose a high threshold test for inferring non-delivery, so it’s important you can rely on a clear and demonstrable mail-management system to persuade the court that if a document was delivered to your registered office, your system would’ve been followed and the document would’ve been received. If you can show good systems it’s a lot easier to argue that if a document wasn’t received, it wasn’t delivered.

MV’s top tips for ensuring you can rebut the presumption of service by post
Update your registered office with ASIC
Every Australian company must have a registered office to receive correspondence and must notify ASIC of any changes to that registered office within 28 days. The courts readily enforce the obligation on companies to establish and maintain a registered office which is capable of receiving delivery of mail.

As an example, in the matter of Deputy Commissioner of Taxation v Revolve Limited,[4] the recipient of a statutory demand (the defendant, Revolve) argued the demand couldn't possibly have been delivered to its registered office as at the time the demand was purportedly delivered, the registered address was a vacant site in the process of being bulldozed with no mail receptacle, no door and no one occupying it. Justice Jacobson dismissed Revolve’s argument saying it couldn’t be accepted ‘because it is contrary to the basic principles which underlie the provisions of the Corporations Act providing for a corporation to file with ASIC the details of its registered address.’[5] Ouch!

Actually find out where mail goes when it’s delivered to your registered office
This sounds silly, but do you really know where mail posted to your company’s registered office ends up?

In the matter of Chen v the College of Building Ltd[6] the recipient of a statutory demand (the respondent, the College) applied to the ACT Supreme Court to set aside the demand on the basis there was a dispute as to the existence of the debt. The issuer of the demand (the appellant, Chen) argued that the application to set aside the demand was filed out of time.

Affidavit evidence adduced by the College showed that even within the College there was confusion about whether mail addressed to the College was delivered inside the College’s registered office or left in a crate outside the door to the premises of the registered office.

The application was decided on Chen’s failure to properly address the envelope containing the demand, which was lucky for the College. However, it goes to show that you need to be fully aware of where your company’s mail is being delivered to as you may need to prove it in Court. Find out!

Ensure that the physical mailbox of your registered office is secure
It’s your responsibility to ensure that documents don’t go astray after delivery to the address of your registered office.[7] Consider the location of the mailbox of your registered office and make sure that only those who you intend to take receipt of the mail delivered to your registered office can access it.

Have documented systems in place for the receipt of mail and stick to them!
If you do need to rebut the presumption of service by post, you’ll need to be able to prove to the court the systems you have in place for the receipt and handling of mail delivered to your registered address. That is, you’ll need to be able to prove that all mail delivered to your registered office is appropriately handled so that if a document wasn’t received then the court can infer the document wasn’t delivered.

Have a think about whether you can confidently say “if it didn’t come to my attention, it wasn’t delivered to my registered office” because one day you may need to prove it.

For more information contact the Commercial Dispute Resolution Team:

Bernice Ellis                    Partner                             Commercial Dispute Resolution
(02) 6279 4385                 Bernice.Ellis@MVLawyers.com.au

Justine Denman              Associate                          Commercial Dispute Resolution
(02) 6279 4400                 Justine.Denman@MVLawyers.com.au

 


[1] Partners of Piper Alderman v Sharjade Pty Limited [2011] NSWSC 6, [18].
[2] Corporations Act 2001 (Cth), s 109X.
[3] Acts Interpretation Act 1901 (Cth), s 29; Legislation Act 2001 (ACT), s 250(1).
[4] [2012] FCA 555.
[5] Ibid, [20].
[6] [2015] ACTSC 19.
[7] Partners of Piper Alderman v Sharjade Pty Limited [2011] NSWSC 6, [18]; citing with approval Deputy Commissioner of Taxation v Meredith (2007) NSWCA 354, [76].


This material has been prepared for the general information of clients of Meyer Vandenberg Lawyers. Its is not intended to take the place of professional advice and readers should not take action on specific issues in reliance upon any matter of information contained in it.

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