Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869

Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869

The plaintiffs did not prove service by post because their evidence did not establish the existence of an envelope, that the relevant documents were placed in an envelope, that the envelope was addressed and stamped or franked, or that it was deposited in the post. The solicitor's statement that the letter was forwarded by mail was not evidence of something he did or saw and was inadmissible hearsay. Together with the defendant's evidence of no awareness or record of receipt, service of the statutory demand was not proved, so the defendant was entitled to a declaration that there had been no service.

Jurisdiction
Australia
Judgment Date
04 August 2010
Procedural Posture
Winding Up Proceedings Under S 459 a of the Corporations Act 2001 (cth) / Defendant's Interlocutory Process Seeking a Declaration That the Statutory Demand Dated 18 February 2010 Was Not Served
Outcome
Defendant's interlocutory process granted; declaration made that there had been no service of the statutory demand; plaintiffs ordered to pay costs; plaintiffs granted leave to file a notice of discontinuance of the winding up proceedings.
Legal Topics
['winding Up' 'statutory Demand' 'presumption of Insolvency' 'service by Post' 'hearsay']
['corporations' 'civil Procedure' 'evidence'] ['winding Up' 'statutory Demand' 'presumption of Insolvency' 'service by Post' 'hearsay']

Case Brief

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Procedural Posture

Winding Up Proceedings Under S 459 a of the Corporations Act 2001 (cth) / Defendant's Interlocutory Process Seeking a Declaration That the Statutory Demand Dated 18 February 2010 Was Not Served

Legal Issues

  1. 1 ['Whether the statutory demand dated 18 February 2010 was served on the defendant by posting it to its registered office.' 'Whether the plaintiffs proved the acts necessary to establish service by post.' "Whether the solicitor's affidavit evidence that the letter was forwarded by mail was inadmissible hearsay."]

Ratio Decidendi

The plaintiffs did not prove service by post because their evidence did not establish the existence of an envelope, that the relevant documents were placed in an envelope, that the envelope was addressed and stamped or franked, or that it was deposited in the post. The solicitor's statement that the letter was forwarded by mail was not evidence of something he did or saw and was inadmissible hearsay. Together with the defendant's evidence of no awareness or record of receipt, service of the statutory demand was not proved, so the defendant was entitled to a declaration that there had been no service.

Court Disposition

Defendant's interlocutory process granted; declaration made that there had been no service of the statutory demand; plaintiffs ordered to pay costs; plaintiffs granted leave to file a notice of discontinuance of the winding up proceedings.

Orders

  • ['I make a declaration in terms of paragraph 1 of the notice of motion filed on 15 June 2010.' 'I order that the plaintiffs as respondents to the interlocutory process pay the costs of the defendant as applicant under the interlocutory process.' 'I grant leave to the plaintiffs to file a notice of discontinuance of...