Anne v Ask Funding Ltd (No.2) - [2014] FCCA 1840

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANNE v ASK FUNDING LTD (No.2)

[2014] FCCA 1840

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – bankruptcy notice reliant upon judgment – where bankruptcy notice followed judgment – where judgment and bankruptcy notice named the debtor using a name she had changed prior to the proceedings leading to the judgment – whether bankruptcy notice defective because debtor’s current name not used to describe her in the notice – whether service irregular – whether execution of judgment stayed because bankruptcy notice and judgment in old name – whether execution of judgment stayed because of order of Supreme Court establishing a trust for the proceeds of sale of certain property – bankruptcy notice valid – application dismissed.

Legislation:

Bankruptcy Act 1966, ss.33(1)(c), 41(1)(g), 41(3)(b), 41(6A), 52(1), 306(1)

Bankruptcy Regulations 1996, reg.16.01, 16.01(c)(ii), 16.02(b)
Births, Deaths and Marriages Registration Act 1995 (NSW)

Anne v Ask Funding Ltd [2013] FCCA 1271
Conway v Mogensen (1998) 156 ALR 254
James v Abraham (1981) 34 ALR 657
Kyriackou v Shield Mercantile Pty Ltd (2004) 138 FCR 324
Matheson v Scottish Pacific Business Finance Pty Ltd [2005] FCA 670
McBride v Ask Funding Limited [2013] QCA 130

Re Brownbank and Miller; Ex parte Loniplus Pty Ltd (1985) 12 FCR 254
Re Fredericke and Whitworth; Ex parte Hibbard [1927] 1 Ch 253
Re Grahame; Ex parte White (1940) 11 ABC 11
Re Hansen; Ex parte Hansen (1985) 4 FCR 590
Re McSwiney; Ex parte Davies (unreported, FCA, Beaumont J, P 1611 of 1986, 24 November 1986)
Re Vella; Ex parte Seymour (1983) 48 ALR 420
Seller v Deputy Commissioner of Taxation [2011] FCA 865
Singh v New Zealand Breweries Limited (No.2) [2009] FMCA 1281
Swart v Carr (No.2) [2008] FMCA 1204
Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572
Wren v Mahony (1972) 126 CLR 212
Yang v Mead [2009] FCA 1202

Applicant:

PATRICIA ANNE

Respondent:

ASK FUNDING LTD

File Number:

BRG 164 of 2014

Judgment of:

Judge Jarrett

Hearing date:

16 May 2014

Date of Last Submission:

16 May 2014

Delivered at:

Brisbane

Delivered on:

15 August 2014

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondent:

Ms Williamson

Solicitors for the Respondent:

Dibbs Barker

ORDERS

The application filed 26 February, 2014 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application, including reserved costs, as agreed or taxed pursuant to the Federal Circuit Court (Bankruptcy) Rules 2006.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 164 of 2014

PATRICIA ANNE

Applicant

And

ASK FUNDING LTD

Respondent

REASONS FOR JUDGMENT

On 7 November, 2012 the District Court of Queensland gave judgment against Patricia Ann McBride at the suit of Ask Funding Ltd for $150,552.49 plus costs of the action on the indemnity basis.
On 10 May, 2013 Ask Funding procured the issue of a bankruptcy notice against Patricia Ann McBride relying upon the judgment.
On 13 May, 2013 the bankruptcy notice was served upon the applicant in these proceedings, Patricia Anne.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 1840
Decision Date: 15 August 2014

CaseChat Overview and Summary

Anne (the bankrupt) sought to set aside a bankruptcy notice issued by Ask Funding Ltd (the creditor) on the grounds that the notice was invalid. The dispute concerned the validity of the bankruptcy notice, which the bankrupt alleged was defective due to non-compliance with the *Bankruptcy Act 1966* (Cth) and the *Bankruptcy Regulations 1996* (Cth). The matter came before Jarrett J in the Federal Court of Australia.

The primary legal issue before the Court was whether the bankruptcy notice was validly served on the bankrupt. Specifically, the Court had to determine if the creditor had complied with the requirements for service of a bankruptcy notice, particularly in light of the bankrupt's assertion that she had not received the notice. This involved an examination of the relevant provisions of the *Bankruptcy Act* and *Bankruptcy Regulations* concerning the proper method and proof of service.

Jarrett J considered the provisions of section 41(1)(g) and 41(3)(b) of the *Bankruptcy Act*, which prescribe the requirements for service of a bankruptcy notice. His Honour found that the creditor had failed to establish that the notice had been served in accordance with the Act. The evidence presented by the creditor did not sufficiently demonstrate that the notice had been sent to the bankrupt's last known address or that it had been served in a manner that would create a presumption of receipt. Consequently, the Court concluded that the bankruptcy notice was invalid.

The Court ordered that the bankruptcy notice issued by Ask Funding Ltd be set aside.

Orders