Amos v Monsour Legal Costs Pty Ltd
[2005] FMCA 1687
•22 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AMOS v MONSOUR LEGAL COSTS PTY LTD | [2005] FMCA 1687 |
| BANKRUPTCY – Service of Notice – allegation that order was not attached to Bankruptcy Notice at time of service – question of fact – found order was attached – application dismissed. |
| Applicant: | EDWARD AMOS |
| Respondent: | MONSOUR LEGAL COSTS PTY LTD |
| File Number: | BRG 603 of 2005 |
| Judgment of: | Baumann FM |
| Hearing date: | 15 November 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 22 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ambrose |
| Solicitors for the Applicant: | Keller Nall & Brown |
| Counsel for the Respondent: | Mr Wilson |
| Solicitors for the Respondent: | McInnes Wilson |
ORDERS
Application is dismissed.
Applicant pay the Respondent’s costs of the Application as agreed, and failing agreement as taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG603/2005
| EDWARD AMOS |
Applicant
And
| MONSOUR LEGAL COSTS PTY LTD |
Respondent
REASONS FOR JUDGMENT
On 27 June 2005 Magistrate Bradford-Morgan of the Queensland Magistrates Court ordered that the Applicant Debtor EDWARD AMOS (“the Applicant”) was to pay the Respondent Creditor MONSOUR LEGAL COSTS PTY LTD (“the Respondent”) costs “assessed at
$49, 996.00” by 11 July 2005.
I am satisfied that this order is a final order which has not been stayed, although the Applicant has lodged an Appeal against the said order in the District Court of Queensland. That Appeal has not been determined.
The Creditor relies upon the said order to found a Bankruptcy Notice number QN1192/2005 issued by ITSA on 6 September 2005. The said notice was served upon the Debtor on 12 September 2005 however a dispute arises as to the manner and effect of service.
This issue is the matter which caused the Debtor to file on
30 September 2005 in this Court an application to set aside the said Bankruptcy Notice. That application initially came before Registrar Ramsay on 14 October 2005 where directions were made for a hearing before a Federal Magistrate on 24 October 2005 including an order that “Time for compliance with B/N QN 1192/2005 be extended to and including 24 October 2005”.
Apparently the matter could not be heard on that day by the Federal Magistrate and the Registry “administratively adjourned” the matter to 15 November 2005 before me. It was acknowledged by both Counsel before me, that it was an oversight that no further order was made to further extend the date for compliance. For reasons which I give below, that oversight, in this case, is of no effect however it could have been an issue (see however Steimer v Tamas 37 ALR 211)
Although a number of grounds were relied upon by the Debtor to assert that the Bankruptcy Notice was invalid as to form, ultimately the issue of service of the Bankruptcy Notice became the critical issue.
The Debtor deposes that at the time of service, the copy of the order of Magistrate Bradford-Morgan was not attached to the Bankruptcy Notice, but rather was attached (and served simultaneously) with a letter addressed to him from the Solicitors for the Creditor.
The Respondent creditor assets that the order was so attached, but as an alternative, if the Court was to find it was not attached to the Bankruptcy Notice, (it being conceded by the Debtor he received the order at the same time) then such service was good.
The matter of service having been raised, the Respondent bears the onus of satisfying me, on the balance of probabilities, that the Bankruptcy Notice had the order attached to it. (see Jensen v Queensland Law Society Inc (2004) FLA 655).
I have come to the conclusion that the Debtor was served with a Bankruptcy Notice with the order attached to it, for the following reasons:
a)The evidence of ANDREW ORR, an Articled Clerk in the employ of the Solicitors for the Creditor, was that this was the first Bankruptcy Notice that he had ever issued. He says:
i)While preparing the Bankruptcy Notice for filing “I was required to attach a photocopy of the original order” (STAPLE 1).
ii)After filing “we retained the sealed copy, copied it once again and this was the document that was served upon Mr Amos”. The process of copying logically required the removal of the first staple, and after copying, the affixing of a new staple (STAPLE 2). It was clear that Mr Orr, when confronted with Exhibit 1 (being the documents brought to the Court by the Debtor under subpoena) was required to admit an error in his Affidavit. Mr Amos was clearly served with a sealed copy of the Bankruptcy Notice “not a copy”. On the totality of the evidence, I do not regard this correction as indicative of an attempt to mislead the Court.
iii)Mr Orr further gave evidence that he attached the Full Bankruptcy Notice and order to the letter dated 6 September 2005 to Mr Amos, signed by his supervising partner (STAPLE 3).
iv)
He then says he attached, in some form, a letter to the process server “RUMPOLES LEGAL SERVICES” of
6 September 2005 to the documents stapled together under (iii) above (STAPLE 4). Although he was unable to recall whether he stapled the letter or “bulldog clipped” it, I infer, from the documents being EXHIBIT 1, it was stapled.
b)The evidence of the process server REGINALD ALLAN STANDFAST sworn 11 October 2005 (just over 1 month after service) that
i)On or about the 8 September 2005 he received a letter from the Solicitors for the Creditor, instructing him to serve the Debtor;
ii)He conducted a routine check of the documents “to ensure they correlate exactly to what I was asked to serve” and that the documents “appeared in precisely the order described in the letter to him”.
iii)He cannot recall whether his letter of instructions was stapled or “bulldog clipped” to the Bankruptcy Notice with attached order, however other documents, set out as “RAS 2”, were firmly affixed together in the order set out in his letter of instruction.
iv)At the time of service, having received an enquiry from the Debtor of “what have you got for me this time?”, he says specifically (and although challenged on this evidence in cross examination, was unmoved), that:
“I turned over the first page of “RAS 2”, which was the letter to Mr Amos from McInnes Wilson, Lawyers. I noticed that the second page of “RAS 2” was the first page of a Bankruptcy Notice, so I replied to Mr Edward Amos “This is serious, it’s a Bankruptcy Notice”.
I accept this evidence.
c)It follows that to the extent that Mr Amos swears that at the time of service the order was attached to the letter to him, and not to the Bankruptcy Notice, I prefer the evidence from Mr Standfast.
I also note that the documents produced under subpoena have a number of small holes in the top left hand corner. Although not the subject of any expert examination, to the naked eye (exposing them to light), it appears to me that:
a)The letter to Mr Amos has only 4 holes – suggesting 2 staples were used;
b)The 6 pages of the Bankruptcy Notice and the copy of the order each have at least 9 holes – suggesting no less than 4 staples. The configuration of the holes on these 7 pages is similar.
I find that the Debtor, at the time of service, was duly served with a sealed copy of the Bankruptcy Notice QN 1192/2005 to which was attached the copy of the order made 27 June 2005.
The Applicant having conceded other grounds of invalidity set out in the written submissions do not have merit, there is no other basis, in my view, to set aside the Notice.
I therefore dismiss the Application. Costs should follow the event.
I propose to so order.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
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