FEDERAL COURT OF AUSTRALIA
Combis (Trustee) v Spottiswood [2011] FCA 1082
Citation: Combis (Trustee) v Spottiswood [2011] FCA 1082 Parties: NICK COMBIS AND PETER DINORIS AS TRUSTEES IN BANKRUPTCY OF THE ESTATE OF GRAHAM CLINTON CLEMENT SPOTTISWOOD (A BANKRUPT) v SUZANNE LESLEY SPOTTISWOOD File number: QUD 223 of 2011 Judge: LOGAN J Date of judgment: 16 September 2011 Catchwords: PRACTICE AND PROCEDURE – substituted and deemed service – whether service can be deemed after multiple unsuccessful attempts – where no evidence that documents came to the attention of respondent – where impracticable to personally serve respondent – substituted service ordered in lieu of deeming service Legislation: Bankruptcy Act 1966 (Cth) s 139ZQ
Federal Court Rules 2011 (Cth) r 10.23, r 10.24Cases cited: Scott V.-C, Adams, Bassett Cross et al, The Supreme Court Practice (The White Book) (Sweet and Maxwell, 1999) Vol 1 at pp 1291-1292
Date of hearing: 16 September 2011 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr GJ Handran Solicitor for the Applicant: Tucker & Cowen Solicitors Counsel for the Respondent: The respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 223 of 2011
BETWEEN: NICK COMBIS AND PETER DINORIS AS TRUSTEES IN BANKRUPTCY OF THE ESTATE OF GRAHAM CLINTON CLEMENT SPOTTISWOOD (A BANKRUPT)
ApplicantAND: SUZANNE LESLEY SPOTTISWOOD
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
16 SEPTEMBER 2011
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.Service of the originating application, the affidavit of Daniel Gregory Arthur Davey filed on 23 August 2011, such application, if any, as the trustees may be advised in respect of judgment in default and any further affidavits in support of either the originating application or the application for judgment in default will be taken to be served on the respondent, Suzanne Lesley Spottiswood, on the happening of the last of the following events:
(a)The sending by pre-paid post in an envelope addressed to the respondent at 5 McMillan Court, Southport QLD 4215 of those documents together with this order and a letter from the trustees’ solicitors appointing a date and time on which the trustees or their agent will attend at that address for the purpose of serving those documents upon the respondent and also offering the respondent the opportunity to nominate by email, to a specified email address, an alternative week day and time between the hours of 9:00 am and 5:00pm not later than Monday 26 September 2011 at which time service might be effected on her of the documents; and
(b)An attendance by the trustees or their agent at 5 McMillan Court, Southport QLD 4215 on the date and time nominated in the letter, or such alternative date or time as the respondent may nominate in accordance with this order, and the leaving of…
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- Case
- [2011] FCA 1082
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centered on the proper method of service of legal documents. Specifically, the court needed to determine whether the service could be deemed effective after multiple unsuccessful attempts to personally serve the documents, and whether it was appropriate to order substituted service in the absence of evidence that the documents had come to the respondent's attention.
In its decision, the court held that while substituted service was an appropriate measure, it was not permissible to deem service effective after multiple failed attempts without evidence that the documents had come to the respondent's attention. The court found that it was impracticable to personally serve the respondent, and thus substituted service was ordered in lieu of deeming service. The court set out a specific process for service, requiring the documents to be sent by prepaid post and offering the respondent the opportunity to nominate an alternative time for service. The application for summary judgment was adjourned to allow for this service to be effected.
The court made orders for substituted service of the originating application and related documents, specifying the method and timing of service. It also directed that an affidavit be filed once service was completed and set a date for the hearing of the application. Costs were reserved pending further orders.
Orders
Orders of the court
1. Service of the originating application, the affidavit of Daniel Gregory Arthur Davey filed on 23 August 2011, such application, if any, as the trustees may be advised in respect of judgment in default and any further affidavits in support of either the originating application or the application for judgment in default will be taken to be served on the respondent, Suzanne Lesley Spottiswood, on the happening of the last of the following events:
(a) The sending by pre-paid post in an envelope addressed to the respondent at 5 McMillan Court, Southport QLD 4215 of those documents together with this order and a letter from the trustees’ solicitors appointing a date and time on which the trustees or their agent will attend at that address for the purpose of serving those documents upon the respondent and also offering the respondent the opportunity to nominate by email, to a specified email address, an alternative week day and time between the hours of 9:00 am and 5:00pm not later than Monday 26 September 2011 at which time service might be effected on her of the documents; and
(b) An attendance by the trustees or their agent at 5 McMillan Court, Southport QLD 4215 on the date and time nominated in the letter, or such alternative date or time as the respondent may nominate in accordance with this order, and the leaving of the documents at that address in the event that the respondent is not able there and then to be located by the trustees or their agent.
2. The applicant is to file an affidavit deposing to the occurrence of the events nominated in order 1 as soon as possible after the happening of those events;
3. The application, including the application for summary judgment, be adjourned for hearing to 10:15am on 12 October 2011.
4. The return date for any application for judgment in default of appearance be listed for 10:15am on 12 October 2011.
5. Liberty to apply.
6. Costs are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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