Civic Video Pty Ltd v Warburton

Link copied
Case Copied 19 min read

FEDERAL COURT OF AUSTRALIA

Civic Video Pty Ltd v Warburton [2013] FCA 934

Citation: Civic Video Pty Ltd v Warburton [2013] FCA 934
Parties: CIVIC VIDEO PTY LIMITED ACN 003 851 152 v PAUL GRAHAM WARBURTON
File number: NSD 1631 of 2012
Judge: JACOBSON J
Date of judgment: 18 September 2013
Catchwords: BANKRUPTCY – application for sequestration order – default judgment obtained in District Court – statement of claim not personally served on debtor – whether bankruptcy notice served in accordance with reg 16.01(1)(c) Bankruptcy Regulations 1996 (Cth) – meaning of “last-known address”
Legislation: Bankruptcy Act 1966 (Cth)
Bankruptcy Regulations 1996 (Cth), reg 160.1(1)(c)
Uniform Civil Procedure Rules 2005 (NSW), rr 10.14, 10.20, 10.21(1), 10.26(1)
Cases cited: Croft v Becton Investments Management Ltd (No 2) [2010] FMCA 419
Drake v Stanton [1999] FCA 1635
Evans v Bartlam [1937] AC 473
Magafas v Carantinos (2008) 222 FLR 185
QBE Insurance (Aust) Ltd v Mahaffy (No 2) (2012) 271 FLR 1
Rafaraci v Pearce [2003] FCA 1307
Re Marsh; Ex parte Marsh and Paramount Leisure Products Pty Ltd (1991) 32 FCR 482
Re Willshire-Smith; Ex parte Randle & Taylor Services Pty Ltd (1994) 48 FCR 371
Robertson v Banham & Co [1997] 1 WLR 446
Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321
Date of hearing: 11 September 2013
Date of last submissions: 11 September 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 81
Solicitor for the Applicant: Mr N Mattock of Marque Lawyers
Counsel for the Respondent: Mr D Stretton
Solicitor for the Respondent: Salvos Legal

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1631 of 2012
BETWEEN:

CIVIC VIDEO PTY LIMITED ACN 003 851 152
Applicant
AND:

PAUL GRAHAM WARBURTON
Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

18 SEPTEMBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The creditor’s petition filed by the applicant on 22 October 2012 be dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1631 of 2012
BETWEEN:

CIVIC VIDEO PTY LIMITED ACN 003 851 152
Applicant
AND:

PAUL GRAHAM WARBURTON
Respondent

JUDGE:

JACOBSON J

DATE:

18 SEPTEMBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. The applicant, Civic Video Pty Ltd (Civic) has filed a creditor’s petition seeking a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) (the Act) against Paul Graham Warburton (Mr Warburton).  Two issues arise for consideration.

  2. The first issue is whether a statement of claim filed in the District Court of New South Wales upon which a default judgment was obtained was served on Mr Warburton in accordance with Part 10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCP Rules).

  3. Mr Warburton contends that the statement of claim was not served and that the effect of the decided authorities on this question is that the…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Civic Video Pty Ltd v Warburton and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2013] FCA 934
Decision Date

CaseChat Overview and Summary

Civic Video Pty Ltd brought an action against Kanone and Mr Warburton, alleging that Kanone had breached the terms of a franchise agreement by ceasing to operate a video store in Werrington, NSW, without notice. Mr Warburton, who had guaranteed the obligations of Kanone, was also named in the suit. The District Court was tasked with determining whether the service of the statement of claim on Mr Warburton was valid, given the discrepancies in the addresses provided by him to various authorities.

The primary legal issue was whether the service of the statement of claim on Mr Warburton was valid, considering the address discrepancies. Specifically, the court had to determine if the address provided by Mr Warburton to ASIC was his last-known address and whether the service of the statement of claim at the address listed in the franchise agreement was sufficient. The court also had to consider the implications of Mr Warburton's change of address and whether the service was in line with legal requirements.

The court found that the service of the statement of claim on Mr Warburton was valid. It held that the relevant expression in the legislation was "the last-known address of the person," and this did not depend on where the person was residing at the time of service. Despite Mr Warburton's evidence that he was not living at the address listed in the franchise agreement when the statement of claim was served, the court concluded that the address was still his last-known address for the purposes of service. Consequently, the court dismissed the petition filed by Civic with costs.

The court's decision resulted in the dismissal of the creditor's petition filed by Civic Video Pty Ltd against both Kanone and Mr Warburton, with costs awarded against Civic.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This issue turns upon the proper construction of the phrase referred to above which appears in reg 16.01(1)(c).FACTUAL BACKGROUND By a franchise agreement made on 12 October 2005, a company known as Kanone Pty Ltd (Kanone) entered into a franchise with Civic for the operation of a video store in Werrington, NSW. Mr Warburton guaranteed the obligation of Kanone to Civic under the franchise agreement. Mr Warburton gave his address in a schedule to the franchise agreement as 16 Hemingway Crescent, Fairfield NSW. The address of the premises at which the franchise was conducted was shown as Shop 12, Werrington County Shopping Centre, Dunheved Road, Werrington NSW. Mr Warburton’s evidence is that the Fairfield address was the home of his mother but that in fact he was residing at another address in Fairfield when he signed the franchise agreement. In fact the other Fairfield address was recorded by Mr Warburton on a certificate given to him by Civic on 19 September 2005. However, the Hemingway Crescent address appears on the franchise agreement which bears the later date of 12 October 2005. Mr Warburton’s evidence is that in about September 2007 he moved to 13 Bursaria Crescent, Glenmore Park NSW where he lived with his wife and stepchildren for nearly five years until February 2012. On 31 August 2009 Mr Warburton filed with the Australian Securities and Investments Commission (ASIC) a notice of change of company details for Kanone which recorded the change of address of Mr Warburton as a director of that company. The notice described Mr Warburton’s residential address as 13 Bursaria Crescent, Glenmore Park. Civic alleges that on 21 February 2012, without providing any notice to it, Kanone ceased to operate the video franchise at the Werrington County Shopping Centre. That allegation was contained in paragraph [14] of the statement of claim in the District Court. The statement of claim was filed in the District Court on 13 June 2012. It names Kanone as the first defendant and Mr Warburton as the second defendant. Mr Warburton’s address is described on the statement of claim as the Hemingway Crescent address. Mr Nestor Mario Passanante, a process server engaged by Civic, swore an affidavit in the District Court setting out details of his visits to the Hemingway Crescent premises to serve the statement of claim. His affidavit included the following:I returned to the premises on the 19th June 2012 at 6:15, and the door was answered by a female resident who identified herself as the 2nd defendant’s mother.I said: “Does Paul Graham Warburton live at this address?”She said: “Yes, he’s my son, but he is not home.”I said: “If I left a message with you or correspondence would he receive it on his return?”She said: “Yes.”I said: “Do you know when he will be back?”She said: “No. He comes and goes.” Mr Passanante’s affidavit goes on to say that he returned to the address on several occasions, namely 23, 25 and 27 June 2012. He says that on 27 June, Mrs Warburton advised that her son was not at home. Mr Passanante then says that on 27 June 2012 he served Mr Warburton with the statement of claim by placing it in the letter box at the Hemingway Crescent premises:…which I have been instructed and verily believe is the defendant’s usual place of abode.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is not to the point that Mr Warburton has given evidence that he was not living at the address stated in the ASIC notice when Mr Passanante endeavoured to effect service. As Tamberlin J pointed out in Drake v Stanton at [5], it does not matter where he debtor is living at the time because the relevant expression is “the last-known address of the person”.CONCLUSION AND ORDERS It follows in my view that the creditor’s petition filed by Civic must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.