Cadence (90) Investments Pty Ltd (Trustee) v Chalmers

[2019] FCCA 3066

FEDERAL CIRCUIT COURT OF AUSTRALIA

CADENCE (90) INVESTMENTS PTY LTD (TRUSTEE) v CHALMERS & ANOR [2019] FCCA 3066

Catchwords:
BANKRUPTCY – Ex parte application for leave to serve bankruptcy notices outside Australia – leave granted.

Legislation:

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 43(1)

Cases cited:

Enterprise & Management Pty Ltd v Tomasevich [2015] FCCA 922

Applicant: CADENCE (90) INVESTMENTS PTY LTD AS TRUSTEE OF THE GDC DISCRETIONARY TRUST

First Respondent: SIMON DOUGAL CHALMERS

Second Respondent: BIANCA CHEAH

File Number: SYG 2543 of 2019

Judgment of: Judge Manousaridis

Hearing date: 15 October 2019

Date of Last Submission: 15 October 2019

Delivered at: Sydney

Delivered on: 15 October 2019

REPRESENTATION

Solicitors for the Applicant: Mr M Popplewell of Watson Mangioni Lawyers Pty Ltd

ORDERS

1. The requirement for the applicant to serve the application filed 3 October 2019 on the respondents is dispensed with.

2. Pursuant to s.40(1)(g) of the Bankruptcy Act 1966 (Cth), the applicant has leave to effect personal service of the Bankruptcy Notice BN 246473 addressed to Simon Dougal Chalmers, elsewhere than in Australia, namely, in the United States of America.

3. That, for the purposes of service pursuant to the leave granted in Order 2, the time for compliance with the requirements of Bankruptcy Notice BN 246473 addressed to Simon Dougal Chalmers be fixed so as to require compliance within 21 days after personal service on Simon Dougal Chalmers of the said Bankruptcy Notice.

4. Pursuant to s.40(1)(g) of the Bankruptcy Act 1966 (Cth), the applicant has leave to effect personal service of the Bankruptcy Notice BN 246474 addressed to Bianca Cheah, elsewhere than in Australia, namely, in the United States of America.

5. That, for the purposes of service pursuant to the leave granted in Order 4, the time for compliance with the requirements of Bankruptcy Notice BN 246474 addressed to Bianca Cheah be fixed so as to require compliance within 21 days after personal service on Bianca Cheah of the said Bankruptcy Notice.

6. When effecting personal service of the Bankruptcy Notices referred to in Order 2 and Order 4, each Bankruptcy Notice be accompanied by a sealed copy of these orders.

7. The applicant has liberty to apply to the court in relation to any issue that may arise in connection with the service of Bankruptcy Notices BN 246473 and BN 246474.

8. Costs of this application shall be reserved for the purposes of any creditor’s petitions based on the said Bankruptcy Notices.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2543 of 2019

CADENCE (90) INVESTMENTS PTY LTD AS TRUSTEE OF THE GDC DISCRETIONARY TRUST

Applicant

And

SIMON DOUGAL CHALMERS

First Respondent

BIANCA CHEAH

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. Before the Court is an application, made ex parte, by Cadence (90) Investments Pty Ltd as trustee of the GDC Discretionary Trust (Cadence), for orders that leave be granted to serve two bankruptcy notices outside Australia, in particular in the United States of America. The application is made pursuant to s.40(1)(g) of the Bankruptcy Act 1966 (Cth) (Act).

2. As I said, the application relates to two bankruptcy notices. These were issued on the application of Cadence. One against Mr Simon Dougal Chalmers, and one against Ms Bianca Cheah. Each bankruptcy notice demands payment of $1,174,162.18. That amount represents a judgment Cadence recovered in the Supreme Court of New South Wales against each of Mr Chalmers and Ms Cheah on 6 September 2019.

3. I have previously considered the principles relating to the exercise of the discretion to grant leave to serve a bankruptcy notice outside Australia, in Enterprise & Management Pty Ltd v Tomasevich [2015] FCCA 922. The effect of my understanding of the relevant principles, as I discussed them in that case, is that it is not relevant to my consideration to whether I should grant leave to serve the bankruptcy notices on the debtors in this case whether the jurisdictional requirements described by s.43(1) of the Act will be satisfied if, after service of each of the bankruptcy notices, there is non-compliance with it, and Cadence decides to proceed to a creditor’s petition based on that non-compliance. The only other matter which I identified in that case which may be relevant to the exercise of the discretion are considerations which relate to comity. There is nothing before me that would give any difficulties on that score, given that it is proposed that the bankruptcy notices be served in the United States of America; and I think it is safe to say that no such issue will arise.

4. In those circumstances, I am satisfied in this particular case, that it is appropriate that I grant leave. Mr Popplewell, who appeared for the applicant, has handed up short minutes of order which substantially reflect the form of orders sought in the application. Subject to some minor changes to those short minutes of order, which I discussed with Mr Popplewell during the course of argument, I propose to make orders in terms of those short minutes of order.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 25 October 2019