Acca Constructions Pty Ltd v Jelich

[2016] FCCA 3288

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACCA CONSTRUCTIONS PTY LTD v JELICH [2016] FCCA 3288

Catchwords:
BANKRUPTCY – Bankruptcy Notice to be served outside of Australia in Canada – application to the Court for leave under s.40(1)(g) of the Bankruptcy Act (Cth) – proper grounds for service outside Australia – application for leave granted.

Legislation:

Bankruptcy Act 1966, s.40(1)(g)

Cases cited:

Commonwealth Bank of Australia v Oswal [2013] FCA 391

Re Bond [1996] FCA 485 or BC 9602583

Applicant: ACCA CONSTRUCTIONS PTY LTD ACN 002 533 011

Respondent: SHARON JELICH

File Number: SYG 2774 of 2016

Judgment of: Judge Dowdy

Hearing date: 16 December 2016

Date of Last Submission: 16 December 2016

Delivered at: Sydney

Delivered on: 16 December 2016

REPRESENTATION

Counsel for the Applicant: Mr D. Wright

Solicitors for the Applicant: Willis & Bowring

Ex Parte: No Appearance for the Respondent.

THE COURT ORDERS AS FOLLOWS:

1. Order that Bankruptcy Notice BN 204309 issued by the Official Receiver on 5 October 2016 be amended so as to substitute the figure “35” for the figure “21” in section 1 on page 2 (in relation to the time specified for compliance by the respondent with the requirements of the said Bankruptcy Notice).

2. Grant leave to the applicant pursuant to s.40(1)(g) of the Bankruptcy Act 1966 (Cth) to effect personal service of the said Bankruptcy Notice BN 204309 together with a sealed copy of this order on the respondent outside Australia in the Dominion of Canada.

3. Direct that service of the said Bankruptcy Notice in accordance with order 2 will constitute and be good and sufficient service of the said Bankruptcy Notice.

4. Reserve to the applicant liberty to apply generally and in relation to the costs of the application, such liberty to be exercised on or before 15 December 2017, unless otherwise extended by the Court.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2774 of 2016

ACCA CONSTRUCTIONS PTY LTD ACN 002 533 011

Applicant

And

SHARON JELICH

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant has a judgment debt in the sum of $92,689.80 against the respondent debtor, one Sharon Jelich.  That judgment was entered on 1 August 2016 and is for assessed legal costs ordered to be paid by the respondent in the Civil and Administrative Tribunal of New South Wales arising out of two cases in that Tribunal between the applicant and the respondent. 

2. The evidence before me establishes that the respondent lives in Canada and she is not presently within Australia.  The applicant has had issued Bankruptcy Notice BN 204309 on 5 October 2016 for the judgment debt and interest, equating to a total sum of $93,945.92. 

3. The applicant, by Further Amended Application filed in this Court on 9 December 2016, seeks leave under s.40(1)(g) of the Bankruptcy Act 1966 (Cth) to serve this Bankruptcy Notice outside Australia in Canada. In my view, this is an appropriate case for such leave to be granted.

4. In an ex parte application of this type, I consider it sufficient to simply state that I have had regard to and have sought to guide myself by the decision of Siopis J in  Commonwealth Bank of Australia v Oswal [2013] FCA 391 and Spender J in Re Bond BC 9602583 or [1996] FCA 485.

5. Accordingly, I now make the following orders consistent with those sought by the applicant.  The orders of the Court are as follows:

   i)Order that Bankruptcy Notice BN 204309 issued by the Official Receiver on 5 October 2016 be amended so as to substitute the figure “35” for the figure “21” in section 1 on page 2 (in relation to the time specified for compliance by the respondent with the requirements of the said Bankruptcy Notice).

   ii)Grant leave to the applicant pursuant to s.40(1)(g) of the Bankruptcy Act 1966 (Cth) to effect personal service of the said Bankruptcy Notice BN 204309 together with a sealed copy of this order on the respondent outside Australia in the Dominion of Canada.

   iii)Direct that service of the said Bankruptcy Notice in accordance with order 2 will constitute and be good and sufficient service of the said Bankruptcy Notice.

   iv)Reserve to the applicant liberty to apply generally and in relation to the costs of the application, such liberty to be exercised on or before 15 December 2017, unless otherwise extended by the Court.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 16 December 2016