Re Marlan Financial Services Pty Ltd; Marlan Financial Services Pty Ltd v New England Agricultural Traders Pty Ltd [1999] VSC 435 (15 November 1999)

Last Updated: 26 November 1999

SUPREME COURT OF VICTORIA
CORPORATIONS LIST	Do not Send for Reporting
	Not Restricted

No. 6601 of 1999

In the Matter of Marlan Financial Services Pty Ltd

(ACN 054 819 028)

MARLAN FINANCIAL SERVICES PTY LTD	Appellant(Applicant)
V
NEW ENGLAND AGRICULTURAL TRADERS PTY LTD (ACN 003 271 841)	Respondent(Respondent )

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 1999
DATE OF JUDGMENT:	16 November 1999
CASE MAY BE CITED AS:	Re Marlan Financial Services Pty Ltd; Marlan Financial Services Pty Ltd v New England Agricultural Traders Pty Ltd
MEDIA NEUTRAL CITATION:	[1999] VSC 435

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COMPANIES - application to set aside statutory demand - service of application interstate - non-compliance with Service and Execution of Process Act 1992 - whether good service - whether service provisions of Part 5.4 prevail over Service and Execution of Process Act 1992 -whether curable by order for substituted service - whether waived by entry of appearance. Corporations Law ss 459E, 459G, 109X Form 509H Service and Execution of Process Act 1992

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D.H. Denton	Herbert Geer & Rundle
For the Respondent	Mr A.P. Young	Strongman & Crouch

HIS HONOUR:

1. This appeal from the decision of the Senior Master given on 2 September 1999 raises a short but troublesome point relating to the making of an application under s. 459G of the Corporations Law.
2. The facts may be shortly stated. On 5 August 1999 the appellant, Marlan Financial Services Pty Ltd ("Marlan") received in Melbourne a notice of demand dated 4 August 1999 alleging that it owed $US95,000 to the respondent, New England Agricultural Traders Pty Ltd ("NEAT") whose address was given in the notice as 80 Brown Street, Armidale, New South Wales 2350. The demand was accompanied by an affidavit of Peter Malcolm Howard sworn on 4 August 1999 verifying the debt. The demand and affidavit were transmitted by fax under cover of a letter. The original documents were received by Marlan on the following day by express overnight mail.
3. The demand purported to be in the form prescribed under s. 459E(2) by reg 1.0.03, that is, Form 509H of the Corporations Regulations.
4. Paragraph 6 of the prescribed form is in these terms:

"The address of the creditor for service of copies of any application and affidavit is (insert the address for service of the documents in the State of Territory in which the demand is served on the company, being, if solicitors are acting for the creditor, the address of the solicitors)."

Paragraph 6 of the notice of demand in this case was in the following terms:

"The address of the creditor for service of copies of any application and affidavit is C/o Aleco Vrisakis 37A Alexandra Street Hunters Hill NSW 2110"

It will be noted that the address for service is not in the State of Victoria where the demand was served.

5. Section 459E(2)(f) requires that a demand be signed by or on behalf of the creditor. The demand in this case appears to have been signed by Mr Vrisakis who gave as his capacity for so doing that of solicitor for the creditor. The documents sent by fax and mail to Marlan were sent by Mr Vrisakis.
6. Pursuant to s. 459G, Marlan had 21 days within which to apply to the court for an order setting aside the demand. Most of this period was occupied in the exchange of correspondence by fax between the solicitors for the respective parties. In their letters, the solicitors for Marlan asserted and the solicitor for NEAT denied that the demand was bad in form and that the debt was disputed. In their last letter dated 23 August 1999 the solicitors for Marlan once again asserted these matters and stated that they would be filing a notice of motion to have the demand set aside "within the next couple of days". The 21 day period after service by fax of the demand 5 August expired at midnight on 26 August 1999.
7. On 25 August 1999 Marlan commenced this proceeding by filing a Notice of Motion and an affidavit in support sworn by Neil Robin Crang on 24 August 1999. The documents were filed in the court at 9.44 am on 25 August. Timothy Paul Fogarty, the solicitor handling the matter for Marlan, has deposed that at 11.01 am on that day the Notice of Motion and the affidavit of Mr Crang in support, but without exhibits, were sent to Mr Vrisakis' office by fax. It appears also from the affidavit of Elliott Bruce Rae that the Notice of Motion and affidavits and exhibits were also sent by pre-paid mail addressed to Mr Vrisakis at the Hunters Hill New South Wales address given in paragraph 6 of the demand. These documents were posted at the Melbourne GPO at 5.30 pm on 25 August. In neither case did a Notice of Motion sent to Mr Vrisakis have attached to it a notice in the form prescribed by Reg. 4(1)(d) of the Service and Execution of Process Regulations.
8. The Notice of Motion was returnable before the Senior Master on 2 September 1999. On 1 September NEAT through its Melbourne solicitors filed in the court a document called Notice of Appearance. The Senior Master on 2 September dismissed the application on the basis that the service in New South Wales was bad for non-compliance with the requirements with the Service and Execution of Process Act 1992. As a result, the requirements of s. 459G(3)(b) were not satisfied within the prescribed 21 day period. Accordingly the application was incompetent.
9. Marlan appeals from this decision by Notice of Appeal dated 7 September 1999. In support of the appeal counsel advanced four arguments which I shall consider in turn. First, service in fact was achieved in Sydney within the 21 day period. Second, the mode of service prescribed in the Corporations Law is a code which overrides the requirements of the Service and Execution of Process Act. Third, I should make an order nunc pro tunc for substituted service pursuant to R. 6.10 of Ch. 1 of the Rules. Fourth, the filing of an appearance overcame any deficiencies in service.

SERVICE IN FACT

10. It will be recalled that service was effected by fax sent at 11.01 am on 25 August. It was said that I should infer that this communication was received in Sydney at about that time and that the solicitor for the creditor had then the documents required by s. 459G. Second, it was said that service by mail posted at Melbourne at 5.30 pm on 25 August would have arrived in the ordinary course of post within the stipulated period which expired at midnight on 26 August 1999. Reliance was placed upon the observations of Young J in Howship Holdings Pty Ltd v Leslie (No.1) [1996] NSWSC 314; (1996) 21 ACSR 440 at 442 that the prime objective of service is to place the documents in the hands of the respondent. Where it can be demonstrated that this has been done, service has been achieved notwithstanding that it has been done otherwise than in compliance with statutory or other procedures. Essentially, this is a question of fact. I am satisfied that the documents sent by fax arrived at the office of the solicitor at or shortly after the time they were transmitted. The transmission verification record shows the result of the transmission to be "OK" and I take judicial notice that this means that the transmission was satisfactorily received. On the other hand, I do not find that the service by post was received within the 21 day period. The letter from Australia Post dated 6 October 1999, which is an exhibit to Mr Fogarty's affidavit, says that a letter posted at Melbourne on 25 August would not be received in Sydney before 27 August. I leave to one side the question whether the service of the affidavit without the exhibits would satisfy s. 459G(3)(b).
11. There still remains the question of the non-compliance with the notice requirements of the Service and Execution of Process Act. At common law service may not be effected outside the jurisdiction of this Court. The right to serve in New South Wales, therefore, must depend upon statute. If the service does not comply with the requirements of that statute it cannot be said to be effective unless the recipient accepts it as such. As counsel for NEAT pointed out, the notices required by the Service and Execution of Process Act contain information which a respondent is entitled to know. The failure to attach these notices, therefore, means that service is not in accordance with the statutory mandate. I conclude, therefore, that even if the documents were in the hands of Mr Vrisakis within the 21 day period, this, of itself, would not satisfy the requirements for interstate service of documents under s. 459G(3).

SERVICE UNDER S. 459G

12. Section 459G(3) specifies that an application to set aside a statutory demand is made "in accordance with this section" only where the application and the affidavit in support are filed with the court and served "on the person who served the demand on the company", both within 21 days. It is this requirement for service which has caused difficulty in this and other cases. First, the legislation directs that service be effected on the person who served the demand. This, it would seem, is not a reference to the process server or other person who actually served the demand, nor to the solicitor who caused it to be served, but to the creditor who is the person entitled to serve the demand under s. 459E: Players Pty Ltd v Interior Projects (1996) 20 ACSR 189 at 193, per Lander J. In this case that person is NEAT, a company. Second, although the Law does not in Part 5.4 specify any place for service, the prescribed form of notice includes in paragraph 6 a notice of address for service within the State. This might lead the debtor, and even a legal practitioner familiar with the function of an address for service in commercial documents or in ordinary litigation to assume that service on the creditor at that address will suffice. Certainly, there is no shortage of authority to that effect: see, for example, Rochester Communications Group Pty Ltd v Lader Pty Ltd (1997) 23 ACSR 380, and the cases mentioned in [23] below. As will be seen, such an assumption may not be warranted. Given the serious consequences for the debtor of a failure to make application under s. 459G and the inflexible time frame within which this must be done, it is important that there be no room for doubts to these matters. It was doubtless with this in mind that the prescribed form, 109H, was prepared with paragraph 6 included.
13. In the present case the question is complicated by the fact that service of the originating process was to be effected interstate. Under the Service and Execution of Process Act 1992, s. 16, service is effective only if a copy of the prescribed notice is attached to the initiating court process which is served interstate. The absence of such a notice, as in this case means that the service out of Victoria was, on any view, not effective.
14. Section 459G is silent as to the question of the mode and place of service of the process upon a corporate creditor. There are, however, a number of legislative and regulatory provisions which may lay claim to providing an answer. Section 109X(1) of the Corporations Law permits service of document on a company by leaving it at or posting it to, the company's registered office or by delivering a copy of the document personally to a director who resides in Australia or in an external territory. Service by post will ordinarily be taken to be effective at the time at which the letter would have been delivered in the ordinary course of post: s. 109Y. The Acts Interpretation Act 1901 (Cth) s. 28A(1)(b) permits service on a company "by leaving [the document] at, or sending it by pre-paid post to, the head office or registered office or a principal office of the body corporate". Service by post, likewise, is effected at the time the document would be delivered in the ordinary course of post: s. 29. The s. 459G application is an originating process in the court. A reading of Ch. 1, R. 6.02 of the Rules of Court shows that personal service is required unless otherwise provided by any act. In the case of a company, service may be effected by personal service on its chairman or head officer or on the secretary or other similar officer: R. 6.04. To these may be added the mode of service suggested by the prescribed form of s. 459E demand itself, Form 509H, paragraph 6. This invites the recipient to serve the s. 459G documents at the nominated address for service.
15. Where, as in the present case, the creditor to be served is interstate, it is necessary to have regard also to the Service and Execution of Process Act 1992. By s. 15(3) service of initiating process, which includes the s. 459G application, must be effected in accordance with s. 9. Likewise the affidavits: s. 55(3). Section 9(1) specifies that the service is to be effected by leaving the documents at or by sending them by post to the company's registered office or by personal service if them on a director who resides in Australia. Section 16 requires that, for service to be effective, certain prescribed notices are to be attached to the initiating process. These are the notices which were not attached in the present case. Section 9(9) expressly provides that s. 109X of the Corporations Law has no application to process which may be served under the Service and Execution of Process Act. See, also, Corporations Law, s. 109X(3). Section 8 of the Service and Execution of Process Act also provides that that Act applies to the exclusion of a law of a State, so that there can be no question of serving the application under the Victorian Rules of Court.
16. All of this produces a remarkable result in a case such as the present. This is a case where a corporate creditor has inserted an interstate address for service in the statutory demand and the debtor in response to this invitation has served the s. 459G documents at that address. Unless the nominated address also happens to be the registered office of the company, the service will not comply with the requirements of the Service and Execution of Process Act, s. 9.
17. It was this consequence which was pressed upon me by counsel for Marlan in support of a submission that the service regime established under Part 5.4 of the Corporations Law is inconsistent with that contained in the Service and Execution of Process Act and that this inconsistency should be resolved in favour of s. 459G because it came into force later in time. This result would have the consequence also that the notice provisions of s. 16 of the Service and Execution of Process Act would be equally inapplicable.
18. It is true that the Service and Execution of Process Act came into force on 10 April 1993 and that s. 459G and Form 509H on 23 June 1993. Nevertheless, I reject this submission for a number of reasons. Section 459G does not of itself establish a regime for service of court process let alone an exclusive regime. Insofar as it may be said that the address for service provision contained in paragraph 6 of Form 509H does so, this can produce no inconsistency with a statute dealing with interstate service since the prescribed form requires that the address be one within the State in which the demand was served. No question of interstate service is dealt with by this Form or by Reg. 1.0.03 which prescribes it. It is the non-compliance with the statutory form which gives rise to the supposed inconsistency.
19. Second, there is in truth no inconsistency between a statutory provision such as s. 459G which requires that process be served and one which stipulates certain preconditions for effective service. Section 459G stipulates that the application must be served within a given time leaving questions as to the mode formal and otherwise of service for other legislative provisions.
20. In these circumstances, it is not necessary for me to address a more fundamental objection which was not argued before me. This is whether a regulation such as R. 1.0.03 of the Corporations Regulations made under the regulation making power conferred by s. 22 of the Corporations Act 1989 (Cth) which applies in Victoria by virtue of s. 8 of the Corporations (Victoria) 1990 can prevail over a provision of the Service and Execution of Process Act (Cth). Such a conclusion might follow, not only from the Service and Execution of Process Act, s. 8(4) but also from s. 109 of the Commonwealth Constitution.
21. I turn now to the cases in which the debtor has been faced with a demand containing a nominated interstate address for service upon the corporate creditor and has complied or has endeavoured to comply with it. In Scandon Pty Ltd v Dome Supplies Pty Ltd (1995) 17 ASCR 662, the s. 459G application was served at the nominated address with the Service and Execution of Process Act notices attached. It was common ground in that case that this service was effective so that the point of issue here did not there arise for determination by Senior Master Mahony. In Ultimate Manufacturing Pty Ltd v Lyell Morris Pty Ltd [1995] NSWSC 31; (1995) 13 ACLC 1,268, another decision of the Senior Master, the debtor's solicitor attempted to serve the creditor with the s. 459G documents at the nominated interstate address by fax and by mail but without the Service and Execution of Process Act notices attached to the originating process. The Senior Master observed that service by fax was not contemplated by the Service and Execution of Process Act, ss. 19 and 15 and dismissed the application on the basis that service under s. 459G(3) had not been effected.
22. A few months later the Senior Master returned to the question in Highfield Woods Pty Ltd v Bayview Crane Hire Pty Ltd (1996) 19 ACSR 429. He concluded, as in the Ultimate Manufacturing case, that service of the s. 459G documents interstate, without the Service and Execution of Process Act notices attached to the notice of motion, was not effective service and that the court accordingly lacked jurisdiction to entertain the application to set aside the notice. He went on, however, to observe at ACSR 433-4, that service on a company, even with the prescribed notices attached, at the nominated interstate address would not satisfy the requirements of the Service and Execution of Process Act, s. 9 unless the nominated address were also the registered office of the company. The consequence of this conclusion, with which I respectfully agree, is that the insertion in the demand of an interstate address for service upon a corporate creditor is not only a non-compliance with the prescribed form but creates the possibility of being positively misleading.
23. In Beralt Pty Ltd v Joe Battaglia Plastering Pty Ltd [1999] QSC 202 the facts were slightly different. The demand served at the registered office of the debtor in New South Wales included as an address for service, the office of the creditor's solicitors in Sydney. It seems, however, that the person who served the demand was Queensland Trade & Services Pty Ltd, a company whose registered office was in Southport, Queensland. The location of the creditor's registered office was not disclosed nor did it appear what was the relationship between the creditor and Queensland Trade & Services Pty Ltd. The debtor's application under s. 459G was, nevertheless, filed in the Supreme Court of Queensland on the last day of the 21 day period. On this day too, the solicitors for the debtor sent the s. 459G documents with the Service and Execution of Process Act notices attached to the application by fax and by mail to the creditor at the nominated address in Sydney. This service was late and his Honour dismissed the application on this basis. The interest of this case for my present purposes, however, is the observation of his Honour at QSC [42]. Having noted that the creditor's argument had not addressed the difficulties caused by s. 15 of the Service and Execution of Process Act, his Honour observed "presumably, where service interstate of an application is effected, it should be served upon both the registered office of the creditor of a company and also on the lawyers acting for that company specified in paragraph 6 of Form 509H". It is not clear whether his Honour should be understood here as offering an opinion as to the legal requirements for service of s. 459G process interstate or as offering a precautionary advice. If it is the former, I respectfully doubt its accuracy. Service at the nominated address is not required by the Corporations Law nor by the regulations. Where the address is within the jurisdiction of the court in which the application is filed, it is merely an address for service at which the debtor may serve the creditor if it chooses: Howship Holdings Pty Ltd v Leslie (No.1) [1996] NSWSC 314; (1996) 21 ACSR 440 at 442-3, per Young J; Rochester Communications Group Pty Ltd v Lader Pty Ltd (1997) 23 ACSR 380 at 395 and 401, per Beaumont J and at 412, per Moore J; Tayros Holdings Pty Ltd v Dyar (1997) 15 ACLC 1,652 at 1,654, per Santow J. Where service is effected under the Service and Execution of Process Act this option is not available and service on a company must be effected at the registered office or by personal service upon the director resident in Australia.
24. It follows from this that service interstate of an application made in accordance with s. 459G must comply with the requirements of the Service and Execution of Process Act including its notice requirements. If it does not, it is ineffective. Service at the office of Mr Vrisakis in this case was, therefore, not effective service upon NEAT; it was not service as required by s. 459G(3)(b).

SUBSTITUTED SERVICE

25. Next, it was put that I should make an order for substituted service nunc pro tunc. The statutory procedures established by s. 459G are very strict. The requirement of s. 459G(2) that the application must be made within the stipulated 21 days is a pre-condition to the jurisdiction of this Court to entertain the application: David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 276-7, per Gummow J. An application is not made for this purpose until it is served: Pinn v Barroleg Pty Ltd (1997) 23 ACSR 541 at 547, per Santow J.
26. In CFC Corporation Pty Ltd v Lanier (Australia) Pty Ltd (1993) 11 ACSR 772, the debtor's application to set aside the creditor's statutory demand was issued out of the Supreme Court of Northern Territory and sent by fax to the creditor at the nominated address within the 21 day period. This mode of service was not authorised by the Corporations Law or by the Northern Territory Rules of Court. Mildren J concluded that this service was, therefore, irregular but that this might be cured by an order under the Northern Territory equivalent of the Victorian R. 6.11. There is no application before me under this rule. In this case I am asked to order substituted service under R. 6.10. In Rochester Communications Group Pty Ltd v Lader Pty Ltd (1997) 23 ACSR 380 at 398, Beaumont J analysed this decision and concluded that he had difficulty in accepting it for a number of reasons. These included the reason that the validation of irregular service cannot be made after the expiry of the 21 day period. David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265, which was decided two years after the CFC Corporation case, demonstrates that, if the 21 day period has expired without valid service, the court has no jurisdiction to entertain the s. 459G application. See, also, Rochester Communications Group Pty Ltd v Lader Pty Ltd (1997) 23 ACSR 380 at 408, per Whitlam J.
27. In any event, R. 6.10(1) permits the court to order substituted service "where for any reason it is impractical to serve a document in the manner required by these rules". The problem here does not arise from any circumstance which, as a practical matter, prevented or made it unduly difficult for the application to be served in time and with the necessary notices attached at the registered office of NEAT. See Paragon Group Ltd v Burnell [1991] 2 WLR 854 at 858, per Harman J; Westpac Banking Corporation v P&O Containers Ltd (1991) 32 FCR 540 at 544, per Pincus J; Rice Growers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 at 482, per Tamberlin J. In these circumstances, service in the conventional way was not impractical. There is, not surprisingly, no evidence to contradict this. The failure by the solicitor issuing the process in this Court to comply with s. 16 of the Service and Execution of Process Act must have arisen because the requirement was overlooked or thought to be inapplicable for some reason.
28. I do not have the power to order substituted service under R. 6.10 and, in any event, I do not have the power after the expiry of the 21 day period.

THE ENTRY OF APPEARANCE

29. As I have mentioned, NEAT on 1 September 1999 filed a document entitled Notice of Appearance in the form prescribed by R. 8.05(2) of Ch. 1 of the Rules. Perhaps a more appropriate form would have been a notice of address for service under Ch. V R. 3.11, but no point was taken as to this.
30. By the filing of an appearance a defendant submits to the jurisdiction of the court and waives any patent irregularity in its process or in the service of the process: Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; (1976) 136 CLR 529 at 539, per Gibbs J or even the absence of service of the process: Green v Braddyll (1856) 1 H&H 69; [1856] EngR 440; 156 ER 1121. Moreover, waiver will cure an irregularity in interstate service arising out of a non-compliance with the Service and Execution of Process Act, being a failure to attach the statutory notice to a writ: Lindgran v Lindgran [1956] VicLawRp 34; [1956] VLR 215 at 219-20, per Smith J.
31. In Highfield Woods Pty Ltd v Bayview Crane Hire Pty Ltd (1996) 19 ACSR 429, the Senior Master of this Court held that the filing of a notice of address for service after the expiry of the 21 day period did not have the effect of overcoming a failure to achieve service in compliance with the Service and Execution of Process Act. In that case the process was delivered to the address given in cl. 6 of the demand within the 21 day period but it did not comply with s. 16 of the Service and Execution of Process Act. The Senior Master held that the service was therefore ineffective and that the application before him to set aside the demand was not an application made in accordance with s. 459G. He held that for this reason the jurisdiction of the court was not enlivened by s. 459G and that it could not be enlivened by the waiver implicit in the filing of a notice of address for service.
32. It was submitted that I am not bound by this decision and that I should decline to follow it. Let me say immediately that this decision which has stood for over three years is that of a very experienced Master in this area of law. I am therefore very reluctant to depart from it, particularly in a matter of procedure.
33. In Australian Underwriting Agencies Pty Ltd v QBE Insurance Ltd (1998) 17 ACLC 22, Merkel J in the Federal Court had before him a case where the debtor, within 21 days after receipt of the demand, sent by fax to the address given in paragraph 6 of the demand a copy of the s. 459G application and the affidavit in support. A copy by post sent in confirmation of this fax did not arrive within the 21 day period. His Honour held that the delivery by fax was nonetheless good service because the address for service in paragraph 6 of the demand included a fax number. Inasmuch as this was not personal service as required by O. 7 R. 1 of the Federal Court Rules, his Honour, at ACLC 24, said that, in any event, such a defect had been waived by unconditional appearance.
34. In Howship Holdings Pty Ltd v Leslie (No.1) (1996) 21 ASCR 440 at 443, Young J contemplated the situation that, where the documents had been served, but irregularly, within the 21 day period, that service was nonetheless effective unless and until it was set aside. In such a case, informal service might be sufficient for the court to be seized of the matter notwithstanding the stringencies that flow from Part 5.4 of the Corporations Law. Presumably, such informalities would be cured by the entry of appearance. It may well be that Merkel J in the Australian Underwriting Agencies case had this in mind when he said that the defect in service had been waived by appearance after the 21 day period. I think that in a case such as the present, the non-compliance with the Service and Execution of Process Act notice requirements cannot be treated in this way as a mere irregularity which would render the service voidable. The statute decrees it to be not effective. To my mind, the analysis of s. 459G made by the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 266-7, when applied to the facts of this case, leads inescapably to the conclusion set out in Highfield Woods Pty Ltd v Bayview Crane Hire Pty Ltd (1996) 19 ACSR 429 and for the reasons given in that case by the Senior Master. Effective service within time is a pre-condition to the jurisdiction of the court under s. 459G. The entry of appearance outside the 21 day period cannot confer jurisdiction retrospectively where none exists.
35. In any event, under Ch. 1, R. 6.02(2), where a defendant to originating process files an unconditional appearance, the process is taken to have been served personally on the appearing defendant on the date on which the appearance is filed or on such earlier date as may be proved. In this case, of course, the date of the entry of appearance was outside the 21 day period so that the problem of late service is not cured under this rule.

CONCLUSION

36. It follows from this that the application must be dismissed. I cannot, however, put to one side my concern that the non-compliance with the requirements of Form 509H rendered the document served on Marlan a potentially misleading one.
37. Counsel for Marlan invited me, should I have reached this conclusion, to grant an injunction restraining NEAT from applying for a wind-up order based on non-compliance with the defective demand. This was the course adopted by Ambrose J in Beralt Pty Ltd v Joe Battaglia Plastering Pty Ltd [1999] QSC 202. I will not do so. I accept that, in the appropriate case and upon appropriate material, the court might grant relief of this kind to protect the integrity of its own process: David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 279, per Gummow J. There is, however, no such application before me, no argument was addressed upon it and, in any event, the material filed in support of the s. 459G application may not been directed to the issues relevant to such an application.
38. In the alternative, counsel for Marlan invited me to adopt the course described in Ultimate Manufacturing Pty Ltd v Lyell Morris Pty Ltd [1995] NSWSC 31; (1995) 13 ACLC 1,268. This was to seek an undertaking from NEAT or to order it to disclose to the court hearing any wind-up application based on the defective demand, the fact that the demand was defective, that the failure of Marlan to apply under s. 459G was due to this defect and that NEAT might expect to be required by the court to show cause why s. 467A(b) should not apply to require the dismissal of the wind-up application. Counsel for NEAT indicated that his client was not prepared to give such an undertaking and reminded me that the Senior Master himself had declined to make such an order.
39. Essentially, an order of this kind was refused because, as I was told, the Senior Master was not satisfied that the defect in the notice was the cause of the non-compliance with s. 459G. In the course of the correspondence which followed the making of the demand, the solicitors for NEAT on 19 August 1999 stated that the creditor's address for service was care of their office in Melbourne. The solicitors for Marlan appeared to reject this in their response of 20 August saying that NEAT could not in this way amend the statutory demand. They required that the demand be withdrawn. This was not done. In the circumstances, it was put, it was open to the solicitors for Marlan to serve out of Victoria in accordance with the provisions of the Service and Execution of Process Act, or in Victoria in the manner which the creditor proposed. Its decision to adopt neither of these causes is the cause of its present difficulty.
40. I am not at all persuaded that this is a correct analysis. The correspondence must be read in the context in which it occurred. The debtor had what it thought were two fatal deficiencies in the demand. The bald terms of the letter of 19 August 1999, if acted upon, would mean that an argument based on one of the defects would be lost and further would expose the debtor to a contention, however unmeritorious, that service at a place other than the registered office or the nominated address was not affected for the purposes of s. 459G(3). In this very technical area one could never be confident that a demand is capable of amendment. It will be noted, too, that the terms of the letter of 19 August were not such as to suggest any such amendment. Nor were they in the familiar terms of a solicitor accepting service under R. 6.09. And time was fast running out. In these circumstances I would not criticise the solicitors for the debtor for not serving the process at the place of the creditor's Melbourne solicitors.
41. And so they sent the process within time by fax to the nominated address in Sydney. This attempt to comply with s. 459G(3) was doomed on a number of counts, still leaving to one side the difficulty which may have been the result of the non-service of the exhibits. First, it was served at the wrong place. Second, it did not have the required notices attached to the originating process. Third, possibly, it was served by fax and not by post.
42. To my mind, the act which has brought about this state of affairs is ultimately the non-compliance by the New South Wales' solicitors for NEAT with the requirements of Form 509H. If they had inserted the address of the Melbourne solicitors the present difficulties would not have arisen. And the consequence of this non-compliance has been that the debtor is now not permitted to assert this non-compliance and will not be permitted to do so upon a wind-up application unless leave is granted under s. 459S(2), a prospect which might be seen as remote: Aizen v Essendon Travel (Vic) Pty Ltd [1994] FCA 980; (1994) 12 ACLC 299.
43. I will not, however, make an order of the kind mentioned in Ultimate Manufacturing Pty Ltd v Lyell Morris Pty Ltd [1995] NSWSC 31; (1995) 13 ACLC 1,268. I am not at all persuaded of its utility for the debtor, from a commercial point of view or, for the reasons set out in the preceding paragraph, from a legal point of view. In any event, if a non-compliance as an irregularity in the demand is a point worth taking in order to resist the wind-up application, I am confident that those representing the debtor will take it without the assistance of any order or reminder from me. Furthermore, if the order be intended as a statement or advice from me about how the wind-up application should be dealt with by a Master or another Judge or, as may be in the case here, by another court, I should be reluctant to make such a statement or to proffer such advice. I do not think it appropriate to involve myself in this way in a judicial proceeding which is not my responsibility.
44. It follows, then, that this appeal must be dismissed. I will add, less this conclusion might raise an unexpected difficulty for Marlan, that this refusal of its application under s. 459G is without prejudice to its right, if it be so advised, to make application to restrain NEAT from bringing a wind-up application and to rely, upon such application, upon the non-compliance with paragraph 6 of Form 509H as a ground for such an injunctive order. I will hear counsel further on the question of costs.
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