Case: Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87
Outcome: discussed
In Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 (" Fancourt "), there was a question whether an owner of goods "served" notice on the hirers of them as required by s 13 of the Hire Purchase Act 1959 (Qld) . The High Court had to consider s 42(1)(c) of that Act, which was a provision similar to s 109X of the Corporations Act , and s 39(1) of the Acts Interpretation Acts 1956 to 1962 (Qld) as it then was , which was similar to s 29(1) of the Acts Interpretation Act . The Court held (at 96-97) that the second limb of the Acts Interpretation Act provision is not enlivened where there is proof of non-delivery. The consequence, their Honours said, is that notwithstanding that service by post is permitted and the requirements for service by post are complied with, where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of non-service. In other words, by reason of the expression "unless the contrary is proved", the company can, by proving that "delivery" did not occur, overcome the effect of the deemed service provision entirely. Their Honours observed (at 97): "It may be thought that there is an anomaly in such a result". 24 Their Honours considered, however, that "delivery may be different from receipt by the intended recipient", and that, provided delivery is not disproved (such as by return of the postal article to the sender undelivered), the mere fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post (at 97). In Fancourt itself, their Honours noted, there was no evidence of non-delivery, and it followed that service was deemed to have taken place at the time when the relevant letter or packet would have been delivered in the due course of the post. 25 The defendant submits that non-delivery is proved in the present case, apparently because: there is no receptacle for postal articles at Unit 3; there is an arrangement between the defendant and the Post Office for the diversion of mail addressed to Unit 3 to Box 590; if delivery to Box 590 had taken place, the only person who collected the mail from that box, Ms Mannile, would have collected the envelope containing the statutory demand and taken it to Unit 3; and she would there have handed the statutory demand to Mr Vane who, at the same time, would have "received" it. 26 Section 109X of the Corporations Act , and the first limb of s 29(1) of the Acts Interpretation Act are to the effect that by duly posting a statutory demand to a company's registered office, the sender, without more, "serves" it on the company. The first limb of s 29(1) has that effect because a "contrary intention" does not appear in s 109X or elsewhere and because that limb does not affect the operation of s 160(1) of the Evidence Act as it does not touch on the presumption as to time of receipt, which is the sole subject matter of s 160(1). 27 Commonly, as in the present case, the sender has no knowledge of the physical circumstances at the registered office or of any special arrangement between the company and the Post Office for the diversion of the company's mail to a Post Office box. There are strong policy reasons why any risk arising from the fact that there is no letter box or other facility for receipt of mail at the registered office or from such an arrangement should lie with the company. It is the company that chooses not to have such a facility, or to have as its registered office premises to which it is not practicable for mail to be delivered, or simply to make an arrangement with the Post Office for mail addressed to the company's registered office not to be delivered to that office but to be deposited in its Post Office box instead. 28 Section 109X of the Act and the first limb of s 29(1) of the Acts Interpretation Act reflect these policy considerations. 29 The fact remains, however, that s 160(1) of the Evidence Act (likewise the second limb of s 29(1) of the Acts Interpretation Act ) allows for the possibility of the company displacing the presumption as to time of receipt (and s 29(1) 's deemed time of service provision). The plaintiff did not adduce evidence directed to proving the time of service, but relied on the statutory presumption. I suggest that in this respect the plaintiff is in the same position as that of nearly all persons who wish to serve documents on a company by posting them to its registered office. 30 The defendant did not raise any point as to whether the time of service in this case is that provided for in s 160(1) of the Evidence Act or in the second limb of s 29(1) of the Acts Interpretation Act . In fact, subs (2) of s 29 of the Acts Interpretation Act has the effect that it is the "fourth working day" period specified in s 160(1) of the Evidence Act that applies, because, by reason of subs (2), s 29 is not permitted to affect the operation of s 160 of the Evidence Act . In any event, the defendant's submission is simply that the plaintiff is not in a position to rely on either statutory provision as to time because, on the evidence, the statutory demand was not delivered to Unit 3 at all. 31 In my view, the defendant has not adduced "evidence sufficient to raise doubt about the presumption" in terms of s 160(1) of the Evidence Act (or, a fortiori , "proved" the contrary of the deemed time of service provision of the Acts Interpretation Act ). 32 I do not know why Mr Vane did not receive the statutory demand. There are three possibilities as to where it went astray: between posting by Ms Taylor and arrival at Box 590; between collection from Box 590 and arrival at Unit 3; or within Unit 3. The defendant's evidence does not persuade me that the first or second possibility is more probable than the third, or that the evidence is sufficient to raise doubt about whether the third explanation is the right one.