Commonwealth Bank of Australia v Shannon
[2012] FMCA 1064
•5 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COMMONWEALTH BANK OF AUSTRALIA v SHANNON | [2012] FMCA 1064 |
| BANKRUPTCY – Application for summary dismissal of the creditor’s petition on the basis of no proof of service of the supporting bankruptcy notice. |
| Bankruptcy Regulations Federal Magistrates Court Rules 2001 (Cth) |
| Kathleen Wong; ex parte Wong v Robinson, unreported 15 September 1995 Re Ditfort, ex parte Deputy Commissioner of Taxation (NSW)(1988) 83ALR 265 Re Rosenberg; ex parte Westpac Banking Corporation, unreported 21 July 1993 |
| Applicant: | COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 |
| Respondent: | GEOFFREY ANTHONY SHANNON |
| File Number: | SYG 2366 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 5 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Newton |
| Solicitors for the Applicant: | Gadens Lawyers |
| Counsel for the Respondent: | Mr M Jacobs QC |
| Solicitors for the Respondent: | LHD Lawyers |
INTERLOCUTORY ORDERS
The interim application filed on 26 October 2012 be dismissed with costs.
The hearing date of the creditor’s petition filed on 19 October 2012, and fixed for hearing on 23 November 2012 is vacated.
The creditor’s petition is to be listed for hearing at 10.15am on 13 December 2012 before Federal Magistrate Driver.
The debtor is to file and serve on the creditor any Notice of Grounds of Opposition to the creditor’s petition by 13 November 2012.
The debtor is to file and serve on the creditor any affidavit evidence in support of the Notice of Ground of Opposition by 20 November 2012.
The creditor is to file and serve on the debtor any affidavit evidence in relation to the Grounds of Opposition by 7 December 2012.
The debtor is to file and serve on the creditor any affidavit evidence in reply by 11 December 2012.
Parties have liberty to apply for further orders or directions on three days’ notice
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2366 of 2012
| COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 |
Applicant
And
| GEOFFREY ANTHONY SHANNON |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an interlocutory application filed on 26 October 2012 by Geoffrey Anthony Shannon seeking the summary dismissal of a creditor’s petition, pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules). The creditor’s petition was filed on 19 October 2012 by the Commonwealth Bank, the petitioning creditor. Mr Shannon supports his interlocutory application by reliance on the affidavit of Richard Wellmeela made on 12 September 2012, deposing as to service of the bankruptcy notice BN5513 issued on 4 September 2012 on Mr Shannon. The bankruptcy notice supports the present petition.
The proposition advanced on behalf of Mr Shannon is that, on any view based upon the evidence of Mr Wellmeela, there has not been service of the bankruptcy notice in accordance with regulation 16.01 of the Bankruptcy Regulations (the Bankruptcy Regulations). The creditor contends that the bankruptcy notice was served in accordance with regulation 16.01(1)(d), that being personal delivery to the debtor. In addition to the affidavit of Mr Wellmeela, I have before me correspondence between the parties in which Mr Shannon offers to accept service of the bankruptcy notice through his solicitors.
This matter must be resolved by reference to the circumstances. The circumstances of the purported service of the bankruptcy notice are detailed in the affidavit of Mr Wellmeela:
At 9.45am on 12 September 2012, I attended Court 11B of the Land and Environment Court, Sydney where I had information that Geoffrey Anthony Shannon was due to attend at 10am. Gadens Lawyers provided photographs of Geoffrey Anthony Shannon which is attached and marked with the letter “B”. At approximately 10.10am I identified Geoffrey Anthony Shannon.
At 10.23am on 12 September 2012, Geoffrey Anthony Shannon walked from the Court room and boarded the lift. I asked: “Are you Geoffrey Anthony Shannon?” The male replied: “Get out”. I said; “No, this is a public lift”. Geoffrey Anthony Shannon alighted the lift. I stayed in the lift and alighted on the ground floor. I waited for Geoffrey Anthony Shannon.
At 10.25am Geoffrey Anthony Shannon alighted the lift on the ground floor, he ran to the coffee shop within the foyer of the court building. I waited outside the coffee shop. Geoffrey Anthony Shannon ran out of the coffee shop and ran towards the lift.
At 10.28am Geoffrey Anthony Shannon alighted the lift on the ground floor and ran towards the coffee shop, then exited the Court Building. I placed the documents at the feet of Geoffrey Anthony Shannon and said in a loud voice “Geoffrey Anthony Shannon you have been served”.
Geoffrey Anthony Shannon looked at me and ran away from the building leaving the documents on the ground.
It is apparent that although the documents were apparently placed at the feet of Mr Shannon, he did not take physical possession of them. I accept from the decision of Gummow J in Re Ditfort, ex parte Deputy Commissioner of Taxation (NSW)[1], that actual corporal possession of the documents is not required for the purpose of effecting personal delivery in accordance with regulation 16.01(1)(d).
[1] (1988) 83 ALR 265 at 276, 277
As his Honour observes in that case, however, it is necessary that in some way the documents being served are indentified. They may be indentified by express words or they may be identified by the person being served looking at them or otherwise understanding their contents. I was taken to the decision of the Federal Court in Re Rosenberg; ex parte Westpac Banking Corporation[2]. In the circumstances of that case, the Court was prepared to accept personal delivery where the documents had been placed inside a motor vehicle occupied by the debtor, and the debtor threw the documents out the window. A specific feature of that case was the debtor took corporal possession of the documents for the purpose of throwing them out the window. The surrounding circumstances also strongly indicated that he was aware of what the documents were and had had an opportunity to look at them at the time he took hold of them.
[2] an unreported decision of the Federal Court made on 21 July 1993
I was also taken to the decision of Sackville J in Kathleen Wong; ex parte Wong v Robinson[3]. In that case the documents were placed near the debtor apparently within the court precincts where she was engaged in other proceedings also involving the creditor. Again, the surrounding circumstances satisfied the Court that the debtor understood the nature of the documents, although she was not expressly told what they were.
[3] unreported 15 September 1995
The facts in this case are that there was an attempt of service of the documents on Mr Shannon outside the precincts of the Court where Mr Shannon had apparently been attending some proceeding in the Land and Environment Court. The affidavit of Mr Wellmeela makes clear that Mr Shannon was not expressly told what the documents were. Whether Mr Shannon was aware, or likely to have been aware of what the documents were is unclear. It is not known, for example, whether the documents were placed at his feet in such a way that he could see what the documents were. It is also not known whether Mr Shannon would have been able to identify what the documents were from any knowledge he may have had of Mr Wellmeela or whether there may have been other legal matters on which he was engaged which could have led to some process being served.
The debtor’s application is for summary dismissal, rather than as a ground of objection to the creditor’s petition. The test in rule 13.10 of the Bankruptcy Regulations is that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting that proceeding or claim. The difficulty for Mr Shannon is that the circumstances are somewhat obscure.
If I had been dealing with a final hearing on the creditor’s petition, I may well, based on the current state of the evidence, have been not satisfied that the bankruptcy notice had been served in accordance with regulation 16.01(1)(d), but I cannot conclude that the petitioning creditor is unable to argue that the documents were served in accordance with that Regulation. If the issue remains in dispute between the parties, it would be necessary to resolve that by whatever evidence is available at a final hearing. It would, presumably, be necessary for Mr Welmeela to be cross‑examined on his affidavit of service. Mr Shannon may also wish to give evidence as to what occurred and his understanding or lack of understanding about what was happening. I am unable to conclude that the petitioning creditor has no reasonable prospect of successfully prosecuting the petition.
I will order that the interim application filed on 26 October 2012 be dismissed with costs.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 16 November 2012