Division 1 of Part XXIII of the Companies Act 1997 codifies service. It applies notwithstanding the provisions of any other Act.
Section 431 — service in legal proceedings
(a) by delivery to a person named as a director or the secretary on the register;
(b) by delivery to an employee at the company’s head office or principal place of business;
(c) by leaving it at the registered office or address for service;
(d) by posting it to the registered office, address for service, or postal address;
(e) by serving it in accordance with directions given by the court having jurisdiction;
(f) in accordance with an agreement made with the company; or
(g) by serving it at an address for service given under the rules of the Court, or by such means as a solicitor has stated they will accept service.
The methods in subsection (1) are the only methods by which a document in legal proceedings may be served on a company in the country. Service by any other means — email to a director, hand delivery to a shareholder, leaving it at a branch that is not the head office — is not service, and a judgment obtained on it is vulnerable.
Note the reliance on the register in paragraph (a): a person named as a director or the secretary on the register. That is why section 137 and section 170(3) require changes to be notified within one month — and why a former director who has not been removed from the register can still be served.
Section 432 — other documents, and electronic service
A document other than a document in legal proceedings may be served —
(a) by any of the methods in section 431(1)(a), (b), (c), (d) or (f); or
(b) by sending it by any means, including a facsimile machine, telex, computer or other electronic device, that provides the document or a copy in a permanent form or image, including an electronic or magnetic form or image.
Paragraph (b) permits email and other electronic transmission for non-court documents — notices of meetings, annual reports, statutory demands and correspondence. The requirement is a permanent form or image.
Court documents remain confined to the section 431(1) methods, which do not include electronic transmission except through paragraph (e) or (g).
Sections 433 and 434 — overseas companies
(a) by delivery to a person named in the register as a director and resident in the country;
(b) by delivery to a person named in the register as authorised to accept service in the country;
(c) by delivery to an employee at the overseas company’s place of business in the country, or its principal place of business where there is more than one;
(d) by posting it to the principal place of business or postal address in the country;
(e) in accordance with directions given by the court; or
(f) in accordance with an agreement made with the overseas company.
Again, subsection (2) makes these the only methods for proceedings. Section 434 permits the same methods, plus electronic transmission to the principal place of business in the country, for other documents.
Section 435 — service on shareholders and creditors
| Recipient | Methods |
|---|---|
| A natural person (s 435(1)) | Given to them; posted to their address or postal address; or sent by any means providing a permanent form or image |
| A company or overseas company (s 435(2)) | Any method in section 432 or 434 |
| A body corporate that is neither (s 435(3)) | Delivery to a principal officer; to an employee at the principal office or place of business; as the Court directs; by agreement; posted to the principal office; or sent electronically to it |
Where a liquidator sends documents to a shareholder’s or creditor’s last known address, or to the address for service of a company, and they are returned unclaimed three consecutive times, the liquidator need not send further documents until that person gives notice of a new address.
Without this, a liquidator would be obliged to keep posting to addresses long abandoned. Note the burden it places on shareholders and creditors to keep their addresses current — see section 67(2)(a), which requires the register to record the latest known address of each shareholder.
Section 436 — when service takes effect, and proving it
(a) Service by delivery to a natural person is made by handing the document to the person, or where the person refuses to accept it, by bringing it to their attention and leaving it in a place accessible to them.
(b) A document posted is deemed received five days after posting — or any shorter period the Court determines in a particular case.
(c) A document sent electronically is deemed received on the day following the day on which it was sent.
(d) To prove service by post it is sufficient to prove the document was properly addressed, all postal charges were paid, and it was posted.
(e) To prove electronic service it is sufficient to prove the document was properly transmitted.
A document is not deemed served, sent or delivered where the person proves that, through no fault on the person’s part, the document was not received within the time specified.
The onus is on the recipient, and the qualification is strict: through no fault on the person’s part. A company that failed to keep its address for service current, or a shareholder who did not notify a change of address, is at fault and cannot rely on subsection (2).
Several time limits run from receipt or service:
- a statutory demand under section 337, and the period to apply to set it aside under section 338;
- a director’s resignation, effective under section 135(2) when received at the address for service;
- the inspection period under section 217, running from the day of service of the notice;
- a section 219 request, and the month allowed for a response; and
- notice of a meeting under Schedule 2 clause 2, and of a board meeting under Schedule 4 clause 2.
Five days for post and one day for electronic transmission are what convert the act of sending into the start of those periods.
Practical points
- Search the register first. Serve at the registered office and address for service shown there — and remember a change takes effect only 10 working days (registered office) or 5 days (address for service) after registration of the notice.
- For proceedings, use only the section 431(1) methods. Anything else is not service.
- Belt and braces. Leaving a document at the address for service and posting it to the registered office costs little and forecloses argument.
- Keep proof. Section 436(1)(d) and (e) set out exactly what must be proved; retain the addressed envelope details, the postage record, and the transmission report.
- If served, act promptly. The deeming provisions mean time may already have started running before the document reached the right person inside the company.
- Keep your own details current — sections 137, 162, 168 and 170 for the company; and shareholders should notify address changes so section 436(2) remains available.
Sources
- Companies Act 1997 — ss 67, 135, 137, 161–168, 170, 217, 219, 337, 338, 431–436; Schedules 2 and 4; Part XX
Before relying on anything here, read the current text of the Companies Act 1997 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.