Serving documents on a company in Australia has become a bit harder

Serving a company in Australia is not an informal process.  It must be done strictly in accordance with section 109X of the Corporations Act 2001. One permitted method is by delivering the document to a director who resides in Australia or an external Territory[1].

Sounds simple, until you try to find the director.

In theory, the director might be at the registered office or usual place of business. In practice, directors of distressed or debt‑ridden companies have an uncanny ability to disappear precisely when court documents are on the way.

Until recently, that problem had a straightforward solution. An ASIC company extract disclosed a director’s residential address. True, some directors used less‑than‑reliable addresses, but in most cases the system worked.

That changed on 2 February this year.

ASIC no longer publishes directors’ residential addresses on company extracts. The information is gone.

ASIC says in its press release[2] this is about privacy and safety. ASIC explained that the change responds to concerns about personal security, identity theft and cybercrime, and that it strikes an appropriate balance between privacy and transparency.

That sounds reasonable, until you look at the consequences.

ASIC already withholds the publication of key identifying information, including Director Identification Numbers. Now it has removed the ability to locate a director altogether other than at the company’s business address. Which raises an obvious question: what is the point of section 109X(1)(b) if it is practically impossible to comply with it?

How exactly am I meant to “personally deliver” a document to a director if I have no way of knowing where the director is? Am I supposed to camp outside the company’s premises and hope for a sighting? Hire a private investigator? Consult tarot cards?

The privacy justification is also unconvincing. Australian Privacy Principle 2 already allows directors to interact with ASIC anonymously if they choose. ASIC has gone several steps further by shielding all directors, whether they want or need that protection or not.

ASIC also confirmed that law enforcement, government agencies and “those needing the information for regulatory compliance or business purposes” can still access directors’ addresses. But that carefully worded assurance excludes practitioners whose “business purpose” is complying with section 109X of the Corporations Act.

Ironically, shareholder addresses are shown on ASIC extracts.  So, if a director is also a shareholder, his or her address will be publicly available. That again does not sit well with ASIC’s stated intention to protect privacy and safety.

One might ask why personal service on a director even matters when a company has a registered office. Why not just serve the documents there?

Because registered offices have a habit of changing. Process servers regularly attend locations that are empty. While courts have confirmed that service may still be effective even if documents like Creditor’s Statutory Demands are left at an empty registered office[3], that often invites unnecessary disputes about whether service was valid. Personally serving a director avoids that argument altogether.

Well, it used to.

Anyone who regularly needs to serve documents on companies now needs to adjust. ASIC extracts can no longer be relied upon to locate directors. Instead, practitioners and businesses should proactively collect directors’ personal addresses through other legitimate channels, such as credit applications, so that service can still be effected when it matters most.

Because the law still expects service to occur.

It’s just become much harder to do it.

[1] Section 109X(1)(b)

[2] ASIC updates information available through purchased extracts: https://www.asic.gov.au/about-asic/news-centre/news-items/asic-updates-information-available-through-purchased-extracts/

[3] Option Funds Management Pty Ltd (atf Option Greenacre Property Fund) v Li [2024] FCA 1010; Office  Deputy Commissioner of Taxation v ACN 152 259 839 Pty Ltd [2024] FCA 1489