Case: Perpetual Nominees Ltd v Masri Apartments Pty Ltd [2004] NSWSC 551 ; (2004) 49 ACSR 719
Outcome: applied
In terms, s 459S applies to prevent a party opposing a winding up application on a ground that the company could have relied upon for the purposes of setting aside a statutory demand but did not so rely. The meaning of that provision has been the subject of some consideration by the courts. Effectively, it has been interpreted to mean that the ground must be such that it was actually available to be asserted according to the facts and circumstances existing at the time of the winding up: see Perpetual Nominees Ltd v Masri Apartments Pty Ltd [2004] NSWSC 551 ; (2004) 49 ACSR 719 at 722-723 [9] per Austin J. 14 I accept that as a correct interpretation of s 459S(1). The question devolves therefore to one of whether it can be said as a matter of fact that the ground now sought to be relied upon by the defendant in opposing the winding up is a ground which was not, in fact, available. As Masri demonstrates at 723 [12], where there has been a change of premises without a corresponding alteration in the registered office, that test will ultimately require an examination of the issue of the reasonableness of the superintendence by the applicant of its registered office. 15 That is, one needs to ask whether the defendant applicant took reasonable steps to check its mail. Mr Stowe has submitted that the fact that the plaintiff was aware the defendant had moved its business premises is not material to what he submitted was an objective test. On the other hand, Mr Davidson submitted that knowledge by the plaintiff was significant for the purposes of the Masri test. I think that the submissions of Mr Stowe are to be preferred. The question posed by s 459S , it is to be borne constantly in mind, is a question of fact as to whether a particular ground was actually available. It seems to me that the subjective state of mind of the plaintiff, or its knowledge, simply does not go to that question. 16 Brought down to the level of how that applies when there has been a change of business premises without a corresponding alteration of a registered office, that seems to me to require an analysis which focuses simply on the reasonableness of the steps taken by the defendant company to check its mail. The knowledge of the plaintiff is irrelevant. That being so, it is pertinent to note that the evidence suggests that the defendant would have, if it had read its email, been aware that demands for moneys had been made upon the registered address. It certainly knew that after the statutory demand was served that the registered office still remained at its original location. 17 Mr Stowe submitted that, once one accepted that Mr Dwyer was so aware, it followed that he should have checked the registered office to see what had arrived. Had he done so, he would have discovered the statutory demand and that in that circumstance, s 459S could not apply. I accept that submission. Upon Mr Dwyer becoming aware in the terms to which he deposed in paragraph 11 of his affidavit, it was reasonable to expect of him that he would at least check to see what mail had arrived at that office; more is that so when, as Mr Stowe correctly submitted, the plaintiff was required by law to serve the statutory demand at that office.