Bryant, J.R. v Commonwealth Bank - [1995] FCA 219

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NP 1922   of 1994
  )
GENERAL DIVISION                 )

BETWEEN:JOSEPH RICHARD BRYANT

Applicant

AND:COMMONWEALTH BANK

Respondent

30 MARCH 1995

REASONS FOR JUDGMENT
LOCKHART J.

This is the hearing of a petition by the Commonwealth Bank of Australia to sequestrate the estate of Joseph Richard Bryant. The petitioning creditor has proved the formalities requisite for the making of a sequestration order. The issues on the hearing of the petition are the issues raised by Mr Bryant, the debtor, and are set out in his notice of appearance filed in the Sydney Registry on 13 December 1994. Mr Bryant has appeared for himself in this proceeding as indeed he has in other proceedings. It is obviously desirable that litigants have the benefit of counsel or solicitors to assist them and I have done my best, consistent with the duties of a judge to remain impartial, to be of some assistance to him in relation to his presentation of argument and of evidence. Mr Bryant has, I think, shown an awareness of the issues and a perception of the relevant facts and has conducted his case as well as could be expected of a layman.
The first argument that is relied upon by Mr Bryant is that the service of the petitioning creditor's petition was not properly effected. Two grounds of objection are raised. The first is that the petition was served by a licensed commercial agent by dropping the petition near Mr Bryant, but not actually delivering it into his hands. The second is that it was served in that fashion in the precincts of the court in this building.

The facts relating to service of the petition are set out in the affidavit of Malcolm Hill of 25 August 1994, and in his oral evidence which he gave today. Mr Hill served Mr Bryant with an official copy of the creditor's petition together with the customary documents in support of it in this building in the following circumstances. Mr Bryant was present in court room 7A of the Supreme Court of New South Wales in this building. He left the court room and proceeded to the lift area on level 7 of this building. He entered the lift in the company of a male person. Mr Hill followed them into the lift and the three men then ascended to level 10. As they did so Mr Hill said to Mr Bryant: "Mr Bryant is it?" To which Mr. Bryant replied: "Yes." Mr Hill said: "That is Joseph Richard Bryant, isn't it?" Mr Bryant said: "Yes." Mr Hill then said: "I have a creditor's petition and other documents here for you in the matter of yourself and the Commonwealth Bank, will you please accompany me outside to effect service." The lift had by then reached level 10 and Mr Bryant left the lift saying to Mr Hill: "No, I've got other business up here." Mr Hill…

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: [1995] FCA 219
Decision Date: 30 Mar 1995

CaseChat Overview and Summary

In the case of Bryant, J.R. v Commonwealth Bank, the applicant, Joseph Richard Bryant, sought to challenge a petition for sequestration filed against him by the Commonwealth Bank. The primary legal issues that Lockhart J had to decide were whether the service of the petition was valid, whether Bryant was solvent, and if the petition was presented maliciously. Lockhart J found that the service of the petition was valid, as it was served in the presence of Bryant and he was aware of it. The court also rejected Bryant's claims of solvency and malicious prosecution, finding that the evidence did not support these arguments. Consequently, Lockhart J ruled in favour of the Commonwealth Bank and made a sequestration order against Bryant's estate.

Lockhart J began by examining Bryant's objections to the service of the petition. Bryant argued that the service was not valid because it was not delivered directly into his hands, and it occurred within the precincts of the court building. However, Lockhart J found that the service was personal and valid, as it was carried out in Bryant's presence, and the location within the court building did not invalidate the service. The court also dismissed Bryant's argument that the petition should not include the proper address for service of the petitioning creditor's solicitor, as there was no evidence to support this claim.

Next, Lockhart J addressed Bryant's claim of solvency. The court examined the evidence presented by Bryant and found that it did not establish his solvency. Lockhart J also rejected Bryant's argument that the petition was presented maliciously, as there was no evidence to support this claim.

Finally, Lockhart J dismissed Bryant's request to adjourn the petition pending the resolution of appeals related to the judgment debt on which the petition was based. Lockhart J found that there were no grounds to go behind the judgment or suggest that the debt was not due to the petitioning creditor.

In conclusion, Lockhart J found that none of Bryant's grounds of opposition had been established and granted the Commonwealth Bank's petition for sequestration. Lockhart J ordered that all proceedings under the sequestration order be stayed until 19 April 1995 and that the costs be taxed and paid according to the Act.

Orders