Deputy Commissioner of Taxation v Gadaleta

[1999] FCA 923

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Gadaleta [1999] FCA 923

DEPUTY COMMISSIONER OF TAXATION v ANTONIO GADALETA

NG 7943 OF 1998

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY
2 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7943 OF 1998

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Applicant
AND:	ANTONIO GADALETA Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	2 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. A petition for sequestration has been presented by the Deputy Commissioner of Taxation against Antonio Gadaleta.  The matter was originally listed for hearing last month but Mr Gadaleta informed the Court that he did not know of the hearing because he had been informed by an officer of the Australian Government Solicitor that the case was fixed for another day. To ensure that Mr Gadaleta knew, or had the opportunity of knowing, about the precise date for hearing and, if he chose, to be present, I re-fixed the matter for today and directed that the Australian Government Solicitor notify him by letter to the two fax numbers and the one address which he had given in two letters to the Court in June.  Evidence has been given today that the two fax numbers did not respond when the Australian Government Solicitor attempted to comply with those directions.  Nor was there a response to the letter posted to the address given by Mr Gadaleta in his recent correspondence.  He has not attended today. 

2. The case arises because in October 1998 Mr Gadaleta filed a notice of opposition to the creditor's petition stating inter alia that the bankruptcy notice was not served on him.  The notice actually says that it was not served on him personally and was not brought to his attention.  For that reason, and because in any event it would be necessary for the petitioner to prove service of the bankruptcy notice, a considerable volume of evidence has been looked at in this connection.

3. The affidavit of service of the bankruptcy notice states that the notice was left in an envelope at an address previously given by Mr Gadaleta at Avalon/Whale Beach at 7:55am on 23 July 1998 with a female person, apparently over the age of 16 years, who appeared to live at that address.  The person did not acknowledge that Mr Gadaleta was on the premises, or that he lived there, but a few days later, Mr Gadaleta launched proceedings in the Supreme Court to set aside the default judgment which formed the basis of the bankruptcy notice.  This application was dismissed by Master Malpass in the Supreme Court on 26 November 1998 and there appears to have been no appeal against that dismissal. 

4. When filing his application to set aside the default judgment, Mr Gadaleta filed three documents.  The first was the motion itself dated 28 July 1998 which gave the address at Avalon where the bankruptcy notice had previously been left.  The second was a notice of appearance on which he gave his address for service three times as the Avalon house, together with a telephone number.  Then on 18 August 1998 he filed an affidavit in support of his motion to set aside the default judgment, claiming that he had not been served with the statement of claim which had formed the basis of that judgment and again giving the Avalon residence as his address.  In the affidavit he claimed that he had made inquiries with all persons above the age of 16 years who had been residing at this address at the time of the alleged service of the statement of claim in September 1995 and found that no person could recall ever having received such a document.  In other words, within one month of the service of the bankruptcy notice on the female at the Avalon address, Mr Gadaleta gave that address as his own on five separate occasions.

5. There is other evidence that strongly supports a conclusion that he lives at that address or at least has extensive connections with it.  The electoral roll shows him as a voter in the Federal electorate of Mackellar and the State electorate of Pittwater registered at the Avalon address.  Energy Australia, the supplier of electricity to that address, has had Mr Gadaleta as the payer of the account for electricity there since March 1974.  Telstra identifies Mr Gadaleta as the owner or lessee of the telephone number given by Mr Gadaleta in the Supreme Court proceedings in July 1998 and gives the Avalon address as that at which that number is connected.  Australia Post has provided evidence that Mr Gadaleta is one of two people who received mail at the address in July and August 1998.

6. There is also evidence before the Court that Mr Gadaleta wrote two letters in December 1998 to the “Commonwealth Tax Ombudsman”, giving a post office address at Avalon Beach.  The second of the letters was replied to by a person whose title was Principal Investigation Officer of the Commonwealth Ombudsman, Taxation Section in a letter dated 12 January 1999 addressed to the same post office box at Avalon Beach.  That letter was obviously received by Mr Gadaleta as it was annexed to his affidavit dated and filed 25 January 1999.  Nonetheless, he gave his address in that affidavit as a place in Warrawee, which is certainly not Avalon or Whale Beach.  On this occasion he gave a telephone number as 9489 4490, and a fax number as 9849 5300.  The underlined part of the fax number was amended in a later affidavit of Mr Gadaleta to the same as the first four digits of the telephone number.  That affidavit is the first and only mention of the Warrawee address and although the affidavit itself states that this is his address, he notes himself at the foot of the document as "care of" that address.

7. Furthermore, he has, as I said earlier, written to the Court twice in June 1999.  On 3 June he supplied to the Court a recent letter written to Mr Shirvington of the Australian Government Solicitor giving a different fax number, 9971 0863, but no other method of contact.  On 6 June he wrote a letter to the Registrar of the Court for my attention.  On this occasion he gave a fax number 9974 4396 and his address as 33 Grand Parade, Bonnells Bay, postcode 2264.  Those two fax numbers and that address are the places to which Mr Shirvington sent Mr Gadaleta notification of today's hearing.

8. By an affidavit dated 4 June, Mr Gadaleta supplied some affidavit material, presumably intended to be by way of corroboration of the fact that he did not live at the Avalon/Whale Beach address in July 1998, as alleged by the petitioner.  In what he called an affidavit of service which annexed the affidavits, Mr Gadaleta again claimed his address to be Bonnells Bay.  Again he gave different numbers for fax and phone, 02 4923 5392 being the phone number and 9971 0863 the fax.  In two of the annexed affidavits dated in February 1999, Mr Gadaleta corrected the numbers at the so-called address at Warrawee to both commencing with the prefix 9489 but otherwise they were the same as previously.  The third affidavit, dated 4 June 1999, gave the Bonnells Bay address with the phone and fax numbers set out in his own affidavit as ostensibly applicable to them. 

9. The two February affidavits presented by Mr Gadaleta were made by his brothers who say that at any relevant time he did not live at the Avalon address, that from June 1995 to May 1997 he lived in Drummoyne, and that from May 1997 to September 1998 he lived at Bonnells Bay.  It seems that one of the brothers himself resides at the Bonnells Bay address, but he does not agree that Mr Gadaleta lives there with him now, as Mr Gadaleta’s  documents allege.  The third affidavit is of a man who apparently lives in the house next door to the place at Avalon previously referred to.  He says that he met Mr Gadaleta several weeks after moving there on 20 August 1996, and to the best of his knowledge, Mr Gadaleta has not been living next door to him and was certainly not there in July 1998. 

10. Strictly speaking, these affidavits have not been read because Mr Gadaleta is not here, but it would not be sensible to conduct these proceedings on any other basis than to take them into account for what they are worth.  I note in this connection that the Australian Government Solicitor gave notice to Mr Gadaleta that counsel wished to cross-examine the deponents of these three affidavits but none of them is present today.

11. Both affidavits of Mr Gadaleta sworn in February 1999 are dated on the same day as they were filed, suggesting that he either attended the Court on that day to file them or that he faxed them on the very date which they bear.  The documents are not originals nor have a fax marking but they do bear the Court's filing stamp.  At the time the Court did not strictly permit filing by fax, so faxing is less likely.  The only conclusion that can be drawn from all this material is that Mr Gadaleta is toying with the Court and with these proceedings.  He is not telling the truth about where he lives or how he can be contacted by telephone or by fax.

12. Two affidavits have been filed by Mr Shirvington.  From the one of 4 June in which he recounted several conversations, the only conclusion that can be drawn is that Mr Gadaleta was clearly in possession of relevant facts about these proceedings.  In the affidavit of 16 June, Mr Shirvington gave evidence that he phoned the telephone number given by Mr Gadaleta on some of the documents to which I have referred, and found that it was a place of employment at Broadmeadow and that Mr Gadaleta did not work there and was not known to the people concerned.

13. I am satisfied that Mr Gadaleta lives at or has a close connection with the address at Avalon at which, on 23 July 1998, the bankruptcy notice was left with a female person, and that that form of service complies with regulation 16.01(1)(c) of the Bankruptcy Regulations.  That finding does not make it necessary for me to address the alternative act of bankruptcy relied upon, viz that provided by section 40(1)(c) of the Bankruptcy Act that an act of bankruptcy is committed when a person absents himself or begins to keep house with intent to defeat or delay creditors.

14. It is my view that Mr Gadaleta obtained the bankruptcy notice consequent upon its being left at the Avalon address in July 1998 and that service of the bankruptcy notice has therefore been adequately established. On that and all the other evidence, I am satisfied that all the matters required by section 52(1) of the Bankruptcy Act have been established.  I pronounce a sequestration order against the estate of the debtor and order that the debtor pay the petitioner's costs of the proceedings, including any reserved costs.  I direct that a form of this order be provided to the Registrar within seven days pursuant to rule 124.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:             2 June 1999

Counsel for the Applicant:	Mr M. R. Aldridge
Solicitor for the Applicant:	Australian Government Solicitor
The respondent did not appear.
Date of Hearing:	2 June 1999
Date of Judgment:	2 June 1999