Bryant, in the matter of Bryant v Australia and New Zealand Banking Group Ltd

[2000] FCA 1326

FEDERAL COURT OF AUSTRALIA

Bryant, in the matter of Bryant v Australia and New Zealand Banking Group Ltd [2000] FCA 1326

IN THE MATTER OF ADRIAN CECIL BRYANT

ADRIAN CECIL BRYANT V AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

N 445 OF 2000

JUDGES:  BEAUMONT, LEE & LEHANE JJ

DATE OF ORDER:     30 AUGUST 2000
PLACE:  SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 445 OF 2000

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

IN THE MATTER OF ADRIAN CECIL BRYANT
BETWEEN:	ADRIAN CECIL BRYANT APPELLANT
AND:	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED RESPONDENT
JUDGES:	BEAUMONT, LEE & LEHANE JJ
DATE OF ORDER:	30 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal be granted.

2.The appeal be dismissed with costs.

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	N 445 OF 2000

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

IN THE MATTER OF ADRIAN CECIL BRYANT
BETWEEN:	ADRIAN CECIL BRYANT APPELLANT
AND:	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED RESPONDENT

JUDGES:	BEAUMONT, LEE & LEHANE JJ
DATE:	30 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. Before the Court is an appeal purportedly lodged as of right, without any objection to competency, from an order made by a Judge of the Court dismissing an application for the annulment of a sequestration order made in respect of the estate of the appellant. 

2. The sequestration order was made on 30 June 1999 on a petition presented on 12 January 1999. The petition was presented on the ground that the appellant had failed to comply with the requirements of a bankruptcy notice.  The return day of the petition was extended on several occasions.  It was ultimately fixed for hearing before a Registrar on 24 May 1999. 

3. On 11 May 1999, the solicitors for the respondent, Australia and New Zealand Banking Group Limited (“the Bank”), wrote to the solicitors for the appellant referring to some attempt to resolve the matter and advising that an offer made by the appellant was rejected.  The letter went on to say:

   “We enclose a copy of a Creditor’s Petition which is for hearing in the Federal Court on 24 May 1999 and would be grateful if you would advise whether you have instructions to accept service.”

4. The solicitors then acting for the appellant were Messrs John McEncroe & Company and the principal member of that firm, Mr John R McEncroe, in an affidavit sworn in these proceedings on 18 February 2000 stated, and there is no dispute about this, that he did not reply to that letter.  The matter was before the Registrar on 24 May 1999.  On that occasion, there was no appearance on behalf of the appellant.  Previously, on 13 May 1999, the Bank had filed a notice of motion returnable before the Registrar on 24 May 1999 seeking an order for substituted service of the petition.  It appears that the notice of motion was not served on any person, this of course being in accordance with the usual practice. 

5. On 24 May 1999 an order was made that personal service of the petition be dispensed with but that the process, being the petition, copies of supporting affidavits and a sealed copy of the order for substituted service be served on any person apparently over the age of sixteen years at the office of John McEncroe & Company.  The order provided that the petition was deemed to have been served on the appellant five days after service in accordance with that order.  The order further provided that the hearing date of the petition be amended to 9.15 am on 30 June 1999. 

6. There is not before us, and there was not before the primary Judge, the affidavit evidence in support of the application for substituted service, although some general information as to its contents was given to us from the Bar table by counsel for the Bank.  Some attempts were made on behalf of the Bank to serve the petition at the office of John McEncroe & Company on 2 June, 3 June and 7 June 1999.  A solicitor employed by the agent of the Bank’s solicitors spoke with Mr McEncroe in this connection.  In the course of their discussion, Mr McEncroe indicated that he did not act for Mr Bryant any more but that he would “certainly contact him or his solicitor.  I know who his new solicitors are and I’ll certainly let one or the other of them know about the proceedings”.  On 11 June 1999 a clerk in the employ of the Bank’s solicitors left the process I have described above with a person apparently over the age of sixteen years at the offices of John McEncroe & Company. 

7. On 29 June 1999 Messrs Jackson Smith, solicitors, wrote to the Bank’s solicitors informing them that they acted for the appellant and had received from John McEncroe & Company the order for substituted service and other documents.  Amongst other things the letter stated that its purpose –

   “is to seek your client’s consent to an adjournment of the bankruptcy petition listed for hearing tomorrow for a period of one month in order that your client may consider the following proposal.”

8. The letter stated that the appellant had no assets and little or no regular income and went on to say:

   “Our client has no funds and we are not instructed to appear at tomorrow’s hearing of the petition.”

9. As has been indicated, the sequestration order was made on 30 June 1999 and, as had been foreshadowed, there was no appearance on that occasion on behalf of the appellant.  In those circumstances the appellant moved for the annulment of the bankruptcy order.  The primary Judge refused that application and, as said, the appellant now seeks to appeal to this Full Court. 

10. I have some reservations as to the entitlement of the appellant to bring this appeal as of right.  In my view, there is at least an argument in favour of the proposition that this matter is interlocutory in the sense that it depends upon the evidence before the Court at the time of the application for annulment.  To that extent, it may be seen to be analogous to an application to set aside a default judgment which can, in some circumstances at least, be regarded as interlocutory.  However, we have had the benefit of a full argument on the matter. 

11. The facts do not appear to be seriously disputed.  The principal argument advanced on behalf of the appellant is that there was no need for the Bank to seek an order for substituted service of the bankruptcy petition.  However, the course of the correspondence and the failure on behalf of the appellant to seek, at any stage, to challenge the making of the order for substituted service, means, in my view, that this argument is without substance or foundation.  It was certainly not an argument that was put before the primary Judge.  As his Honour said at par 26 of his reasons “… this Court made an order for substituted service and there has been no attack on that order”.

12. More important, perhaps, are the surrounding circumstances to which I have referred and to which his Honour referred in the course of his reasons.  That is to say, the course of dealing between the Bank’s solicitors and both firms of solicitors acting for the appellant made it clear beyond question that those representing the appellant at the material time were fully aware, first of the application for substituted service, and secondly, of the hearing date of the petition.  There has been no suggestion in the evidence that the solicitors acting at relevant times for the appellant failed to inform the appellant of these crucial facts.  On the contrary, the only inference that may be drawn in such circumstances is that the appellant was personally well aware, first of the application for substituted service, and secondly, of the date of the hearing of the petition on 30 June 1999.

13. In those circumstances, it seems to me that the appeal is utterly without merit for the reasons I have previously mentioned.  I would however, as a precaution, formally grant leave to appeal but order that the appeal be dismissed with costs. 

    LEE J:

14. I agree.

    LEHANE J:

15. I also agree.

    BEAUMONT J:

16. The order of the Court therefore will be as I have pronounced.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             October 2000

Counsel for the Appellant:	M Abdul-Karim
Solicitor for the Appellant:	John McEncroe & Company
Counsel for the Respondent:	R E Montgomery
Solicitor for the Respondent:	Everingham Solomons
Date of Hearing:	30 August 2000
Date of Judgment:	30 August 2000