The Supreme Court of New South Wales has recently handed down a decision as to the nature of evidence supporting service by post.  Assumptions that other people have followed office procedure in serving documents won’t fly.

In In the matter of Smith & Young Pty Ltd [2016] NSWSC 1081 an application to wind up a company was reduced to the question of whether the creditor plaintiff had achieved the benefit of a presumption of insolvency under section 459C(2)(a) of the Corporations Act 2001 (Cth) by reason of the debtor company’s failure to comply with a statutory demand. Since there cannot be a failure to comply with a statutory demand unless the demand and accompanying affidavit was properly served in accordance with section 459E, the issue turned on whether service had been effected.

The solicitor for the plaintiff provided evidence on steps that had been taken in his office to effect service of the statutory demand by post. The problem was that he assumed that the office practice for service by post had been followed but there was no affidavit or evidence to support whether such procedure for service had been practised on that day.

When serving documents by post, an organisation should always have the person who follows the procedure for service by post complete the affidavit of service setting out the exact steps they took to effect service on that particular day.

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