Battenberg v Restrom

[2006] FCAFC 20

FEDERAL COURT OF AUSTRALIA

Battenberg v Restrom [2006] FCAFC 20

BANKRUPTCY – Bankruptcy notice – substituted service – substituted service of a bankruptcy notice made whilst the debtor is out of the jurisdiction – whether the Bankruptcy Act 1966 (Cth) permits service of a bankruptcy notice outside Australia – whether leave of the Court is required.

Bankruptcy Act 1966 (Cth) ss 40, 40(1)(a), 40(1)(b), 40(1)(g), 43(1), 43(1)(b), 309(2)

Laurie v Carrol (1958) 98 CLR 310 approved
Sheahan v Joye (1995) 57 FCR 389 cited
Re Trimbole; Ex parte Deputy Commissioner of Taxation (1984) 4 FCR 586 cited
Re Skase (1991) 32 FCR 212 cited
Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256 followed

ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG v CONWAY ANTHONY RESTROM, PETER JAMES CALDWELL, ANTHONY JAMES CORDATO, BRIAN STUART OLLIVER, PHILLIP MARK DAY, ALAN WILKIE NICOL (TRADING AS MICHELL SILLAR)

NSD 1682 of 2005

HEEREY, DOWSETT and CONTI JJ
7 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1682 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG APPELLANT
AND:	CONWAY ANTHONY RESTROM, PETER JAMES CALDWELL, ANTHONY JAMES CORDATO, BRIAN STUART OLLIVER, PHILLIP MARK DAY, ALAN WILKIE NICOL (TRADING AS MICHELL SILLAR) RESPONDENTS
JUDGES:	HEEREY, DOWSETT & CONTI JJ
DATE OF ORDER:	7 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondents’ costs of the appeal.

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 1682 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG APPELLANT
AND:	CONWAY ANTHONY RESTROM, PETER JAMES CALDWELL, ANTHONY JAMES CORDATO, BRIAN STUART OLLIVER, PHILLIP MARK DAY, ALAN WILKIE NICOL (TRADING AS MICHELL SILLAR) RESPONDENTS

JUDGES:	HEEREY, DOWSETT & CONTI JJ
DATE:	7 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a decision of Gyles J, refusing an application by the appellant for an order extending the time for compliance with a bankruptcy notice or, alternatively, setting aside an order for substituted service of the bankruptcy notice or, alternatively, declaring that there has been no valid service of the bankruptcy notice. 

2. On 9 January 2004 in the Supreme Court of New South Wales, the respondents recovered judgment against the appellant in the amount of $203 308.61. On 26 August 2004 the Official Receiver issued a bankruptcy notice pursuant to s 41 of the Bankruptcy Act 1966 (Cth) (the “Act”), addressed to the appellant and based upon that judgment. On 9 March 2005 a registrar in 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…