So, you issued a Statutory Demand by post on the registered office of a company just to have it returned to your desk with “return to sender – office doesn’t exist” stamped on it? What do you do and what does this mean? Was the company successfully served pursuant to section 109X of the Corporations Act 2001 (Cth)?

A common issue faced by creditors and litigators is the situation where a statutory demand is posted to a company’s registered office in accordance with the registered office listed in an ASIC search, only to be returned by post and marked “Return to Sender”, “Office Doesn’t Exist”, “Unknown at Address” or similar.

The immediate question is whether service has nevertheless been effected pursuant to section 109X of the Corporations Act 2001 (Cth) (the Act), or whether the returned envelope is evidence that service has been effected.

The answer is not always straightforward. Whilst section 109X provides a statutory mechanism for serving documents on companies, the courts have repeatedly considered the interaction between that provision, the presumption of postal service under the Acts Interpretation Act 1901 (Cth) (AIA), and evidence demonstrating that a document was never delivered to the registered office.

Section 109X(1)(a) of the Act provides:

A document may be served on a company by leaving it at, or posting it to, the company’s registered office.

The provision is designed to provide certainty. A creditor is generally entitled to rely upon the registered office recorded with ASIC without undertaking further investigations as to whether the company actually receives the document. The obligation rests upon the company to maintain a functioning registered office and to notify ASIC of any change within the prescribed period.

Where a document is properly addressed and sent by prepaid post, section 29 of the AIA creates a presumption that the document was delivered in the ordinary course of post unless the contrary is proved: see the case of Re Roxton Commercial Builders Pty Ltd [2024] VSC 289.

The relevant authorities as to whether the Statutory Demand was served at all are summarised by Justice Wigney in Electrical Data and Fibre Optic Systems Pty Ltd v Utech Pty Ltd [2024] FCA 874:

a. evidence of non-receipt of an article by its intended recipient, or a denial of receipt by that person, may not be sufficient to prove non-delivery and therefore, may not be sufficient to prove non-service for the purposes of s 29 of the AIA;

b. proof of non-delivery (as opposed to non-receipt) is sufficient proof of non-service for the purposes of s 29 of the AIA and, it would follow, pursuant to s 109X(1)(a) of the Act;

c. there is no distinction between delivery of an article to a specified address – that is, to a place – and its receipt at that address;

d. the company that is disputing service bears the onus of establishing “proof to the contrary” pursuant to s 29 of the Act by, relevantly, proving non-delivery at the company’s registered office;

e. it is a question of fact in each case whether or not delivery has occurred.

f. The presumption of service will operate even if there is no receipt of the Statutory Demand upon the basis that it is for the company to maintain a satisfactory address for service but proof of non-delivery to that address will rebut the presumption.

In Partners of Piper Alderman v Sharjade Pty Ltd [2011] NSWC 6, Barrett J said:

“… A company’s registered office must be at some defined and readily accessible place consisting of, or being within, a building. The specification of the address of the registered office must be such as to accommodate the possibility recognised in s 109X(1)(a) of the Corporations Act that documents will be served by posting them to the registered office.

Implicit in the statutory scheme, therefore, is an expectation that there will be in place at the registered office a system for the safe and secure reception of documents delivered by post.”

By reason of the requirements of s 109X of the Act and s 29(1) of the AIA, the obligation for a company and its agents to maintain adequate records with ASIC assumes paramount importance because creditors and other persons wishing to serve documents on a company should be entitled to rely upon the details of the company’s registered office in its records maintained by ASIC, without making further enquiries as to the company’s current address or any mail re-directions which may be in place. Whilst a company has the obligation to maintain a current and satisfactory address, the legislative intent to provide an official public address for service would be defeated if a company could simply flout its obligations by failing to notify ASIC of any change to its registered office – whether deliberately or carelessly.

Therefore, A statutory demand sent to a company’s ASIC-registered office will generally be presumed validly served, even if returned by post, unless the company can prove that the document was never delivered to the registered office address.

Key Takeaways

1. Always obtain and retain a current ASIC search before serving a statutory demand;
2. Keep evidence of posting, including scanning the addressed envelope and the contents contained in the envelope;
3. If the demand is returned, do not automatically assume service has not been effected;
4. Consider whether the returned envelope provides evidence of actual non-delivery;
5. File an Affidavit of Service in the proceeding to establish steps undertaken to serve the documents; and

If challenged, the Court will examine the specific circumstances and evidence surrounding the attempted service.