The general rule is that serving a company at their registered office will be deemed effective service. However, what happens when you “serve” court documents at a company’s registered address, and it is returned to sender? The Courts have made it clear that if there is proof that a document has not been delivered, service will not be deemed to have taken place.
The Common Law Position on return to sender
While the Court’s position on documents marked “returned to sender” appears to take a “common sense” approach, this position may change depending on the individual circumstances of the matter. For example, in the case of CGU Workers’ Compensation (Victoria) Ltd v Carousel Bar Pty Ltd (1999) 17 ACLC 1, service of a Creditor’s Statutory Demand was deemed ineffective because the envelope was returned and marked ‘return to sender’. The Court considered this to be sufficient proof of non-delivery. Whilst this case emphasizes that unless the creditor has taken all reasonable steps to bring the demand to the attention of the Company after it has been served, there are circumstances, and case law to suggest that it really does come down to the individual circumstances of each case.
On the contrary, in the case of Dennis v Fodare Pty Ltd [2007] NSWSC 180, the plaintiff sent an originating process along with an accompanying affidavit to the Defendant’s registered office. The envelope was returned and marked ‘Return to sender’ followed by the word ‘refused’ by way of explanation. In contrast to the above case, the Court inferred that the document had in fact come to the attention of a relevant person at the Defendant’s address but they declined to accept delivery. As such, the court was prepared to hold that service was effective.
What Section 109X says about Return to Sender
Section 109X of the Corporations Act 2001 (Cth) presumes that documents which have been delivered to the registered office of a company have been served. It is up to the party seeking to maintain that the documents were not served, usually the defendant, whom will be required to rebut this presumption, which has a high threshold of proof.
Significance
The above highlights that despite there being a general presumption for the service of documents on companies, each case will be decided on its own individual facts and circumstances.
How can we help?
Having difficulty effecting service? Our commercial litigation team has extensive experience in all facets of litigation, including service. If you or someone you know requires further assistance, please do not hesitate to contact Rostron Carlyle Rojas Lawyers on (07) 3009 8444 or email us at [email protected].
Please note that this article has been prepared by Ellen Nowland, Lawyer and settled by Sarina Mari Alwi, Associate of Rostron Carlyle Rojas Lawyers. Its contents are for general information purposes only and does not by any means constitute legal advice, nor should it be relied upon.
