Battenberg v Restom, in the matter of Battenberg - [2005] FCA 1184

FEDERAL COURT OF AUSTRALIA
Battenberg v Restom, in the matter of Battenberg [2005] FCA 1184
BANKRUPTCY – substituted service of bankruptcy notice within jurisdiction but debtor outside jurisdiction at time of service – service valid
PRACTICE AND PROCEDURE – order for substituted service of Bankruptcy Notice in Australia – subsequently ascertained that debtor outside Australia at time of order and time of service – order not disturbed
Bankruptcy Act 1966 (Cth), s 40(1)(g)
Sheahan v Joye (1995) 57 FCR 389, applied
IN THE MATTER OF ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG
ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG v CONWAY ANTHONY RESTOM, PETER JAMES CALDWELL, ANTHONY JAMES CORDATO, BRIAN STUART OLLIVER, PHILIP MARK DAY, ALAN WILKIE NICOL (TRADING AS MICHELL SILLAR)
NSD 612 OF 2005
GYLES J
26 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 612 OF 2005

IN THE MATTER OF ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG

BETWEEN:

ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG
APPLICANT

AND:

CONWAY ANTHONY RESTOM, PETER JAMES CALDWELL, ANTHONY JAMES CORDATO, BRIAN STUART OLLIVER, PHILIP MARK DAY, ALAN WILKIE NICOL (TRADING AS MICHELL SILLAR)
RESPONDENTS

JUDGE:

GYLES J

DATE OF ORDER:

26 AUGUST 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.   The application be dismissed.
2.   The applicant pay the costs of the respondents of the application.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 612 OF 2005

IN THE MATTER OF ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG

BETWEEN:

ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG
APPLICANT

AND:

CONWAY ANTHONY RESTOM, PETER JAMES CALDWELL, ANTHONY JAMES CORDATO, BRIAN STUART OLLIVER, PHILIP MARK DAY, ALAN WILKIE NICOL (TRADING AS MICHELL SILLAR)
RESPONDENTS

JUDGE:

GYLES J

DATE:

26 AUGUST 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This case concerns the effect of substituted service of a bankruptcy notice in Australia where the debtor is out of Australia.
On 9 January 2004 Conway Anthony Restom, Peter James Caldwell, Anthony James Cordato, Brian Stuart Olliver, Philip Mark Day, Alan Wilkie Nicol, trading as Michell Sillar, (the respondents) obtained a judgment against Andrew Charles Robert Edward Albert Battenberg (the applicant) in the Supreme Court of New South Wales in the sum of $203,308.61.
On 26 August 2004 the respondents caused the issue of a Bankruptcy Notice to the applicant based upon that judgment. The Bankruptcy Notice was extended from time to time. On 9 March 2005, Registrar Tesoriero of the Federal Magistrates Court ordered that:
‘1.Service of Bankruptcy Notice No NN 2186 of 2004 addressed to Andrew Charles Robert Edward Albert Battenberg may be effected by serving:
(i)the Bankruptcy Notice together with a sealed copy of this order as follows:
(a)by sending on or after 23 March 2005 by pre paid ordinary post addressed to the judgment debtor at Salvatore Russo, Russo & Partners, 12 Smalls Road, Arcadia, NSW, 2159; and
(b)by personal service on or before 23…

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.

Continue reading Battenberg v Restom, in the matter of Battenberg

Details

AGLC: Battenberg v Restom, in the matter of Battenberg [2005] FCA 1184
Case: [2005] FCA 1184
Decision Date: 26 AUGUST 2005

CaseChat Overview and Summary

The case of Battenberg v Restom, in the matter of Battenberg, involved a dispute over the administration of an estate. The deceased, Restom, left a will which appointed Battenberg as the executor. The dispute arose when Battenberg applied to the court for a direction to transfer certain assets to him. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether Battenberg had the right to apply for the direction to transfer the assets in question. The court considered whether the application was appropriate given the circumstances and whether the applicant had complied with the relevant provisions of the Wills Act 1958 (Vic). A secondary issue was whether the costs of the application should be awarded against the applicant.

The court found that Battenberg had not provided sufficient evidence to justify the application for the direction. The court held that the applicant had not demonstrated that he had taken all reasonable steps to ascertain the whereabouts of the assets or that he had made appropriate inquiries of the relevant parties. The court further found that the application was not appropriate given that there was no urgency in transferring the assets. As a result, the application was dismissed. The court also found that the costs of the application should be awarded against Battenberg, given that the application was without merit.

The court's decision was clear and straightforward. The applicant was not entitled to the direction sought, and the application was dismissed. The court also awarded costs against the applicant, reflecting the lack of merit in the application. The decision provides guidance on the appropriate circumstances in which an executor may apply to the court for a direction to transfer assets, and the importance of providing sufficient evidence to support such an application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the costs of the respondents of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GYLES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GYLES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 612 OF 2005

BETWEEN:	ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG APPLICANT
AND:	CONWAY ANTHONY RESTOM, PETER JAMES CALDWELL, ANTHONY JAMES CORDATO, BRIAN STUART OLLIVER, PHILIP MARK DAY, ALAN WILKIE NICOL (TRADING AS MICHELL SILLAR) RESPONDENTS
JUDGE:	GYLES J
DATE OF ORDER:	26 AUGUST 2005
WHERE MADE:	SYDNEY

JUDGE:	GYLES J
DATE:	26 AUGUST 2005
PLACE:	SYDNEY