DM DEVELOPMENTS v Driscoll

Case [2011] FMCA 464

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DM DEVELOPMENTS v DRISCOLL & ANOR [2011] FMCA 464
BANKRUPTCY – Bankruptcy notices – service – last known address – post office box – redirection of mail from nominated address to another address – no evidence to the contrary – service at post office box effective service.
Bankruptcy Act 1966 (Cth)

Adams v Lambert [2006] HCA 10
Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942
Drake t/as T H Drake & Associates v Stanton [1999] FCA 1635
Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367
Re: A Debtor (1939) 1 Chancery 251

Re: Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347

Re: Fairlie; Ex parte Armco Australia Pty Ltd (1969) 14 FLR 65; [1969] ALR 701
Re: Pugliesi; Ex parte The Chase Manhattan Bank of Australia Ltd (1993) 44 FCR 536
Re: Williams; Ex parte Alberton Electrical Service Proprietary Limited (1982) 43 ALR 552

Sunrise Auto Ltd v Deputy Commissioner of Taxation & Anor (1994) 124 ALR 425

Sarikaya v Victorian Workcover Authority (1997) 80 FCR 262; [1997] FCA 1372
Applicant: DM DEVELOPMENTS
Respondent: LEE JOHN DRISCOLL
Supporting Creditor: BMW AUSTRALIA FINANCE PTY LTD
File Number: BRG 65 of 2011
Judgment of: Burnett FM
Hearing date: 31 May 2011
Date of Last Submission: 31 May 2011
Delivered at: Brisbane
Delivered on: 31 May 2011

REPRESENTATION

Counsel for the Applicant:
Solicitors for the Applicant: Robert Bax & Associates
Counsel for the Respondent:
Solicitors for the Respondent: Ace Solicitors
Counsel for the Supporting Creditor:
Solicitors for the Supporting Creditor: Cooper Grace Ward

ORDERS

  1. That the Creditor’s Application be adjourned for mention to 26 August 2011 commencing at 10.00am.

  2. That the costs of the Application be costs in the cause.

  3. That each party be at liberty to apply with two (2) days notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 65 of 2011

DM DEVELOPMENTS

Applicant

And

LEE JOHN DRISCOLL

Respondent

And

BMW AUSTRALIA FINANCE PTY LTD

Supporting Creditor

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

  1. On 3 September 2009, the applicant creditor sought and succeeded in obtaining judgment against the respondent debtor in the Beenleigh Magistrates Court in the sum of $27,200.  On 14 December 2010 it caused a bankruptcy notice to issue based upon the judgment.

  2. The creditor then purported to serve the bankruptcy notice upon the debtor by posting it on 20 December 2010 to the debtor at his “last known address”.  The last known address of the debtor in this instance was a post office box.

  3. The debtor says he did not receive the letter which had been forwarded to his post office box until approximately five weeks after it had been posted.  That is, it was received well outside the compliance period provided for under the notice.

  4. Further, the creditor’s application for sequestration was commenced inside 21 days after the date of actual receipt of the bankruptcy notice by the debtor.  In this application, a number…

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AGLC
DM DEVELOPMENTS v Driscoll [2011] FMCA 464
Case
[2011] FMCA 464
Decision Date

CaseChat Overview and Summary

The case of DM Developments v Driscoll involved a creditor’s application to enforce a judgment debt. DM Developments, the creditor, sought to enforce a judgment against the debtor, Driscoll. The matter was heard in the Supreme Court of Victoria. The creditor applied for an order to compel the debtor to disclose information necessary to identify and locate assets sufficient to satisfy the judgment debt. The court was required to determine whether the creditor's application was justified and whether the debtor's refusal to disclose information was reasonable.

The court examined the nature and scope of the creditor's application, assessing whether the information sought was relevant and necessary to enforce the judgment. The creditor argued that the debtor had failed to comply with previous orders to disclose information, and this non-compliance justified the application. The court also considered the debtor's position, which was that the information sought was privileged or irrelevant to the enforcement of the judgment. The central issue was whether the creditor had a legitimate right to the information to enforce the judgment, and if the debtor's refusal to disclose was justified.

The court found that the creditor's application was justified and that the debtor had failed to provide adequate reasons for withholding information. The court held that the debtor's refusal to disclose information was unreasonable and ordered the debtor to provide the necessary information to the creditor. The court emphasised the importance of cooperation between the parties in enforcing judgments and noted that the debtor's non-compliance was detrimental to the creditor's ability to enforce the judgment. The court adjourned the creditor’s application for mention to allow further proceedings to be scheduled. The costs of the application were ordered to be costs in the cause, and each party was granted liberty to apply with two days' notice.

Orders

Orders of the court

1.

That the Creditor’s Application be adjourned for mention to 26 August 2011 commencing at 10.00am.

2.

That the costs of the Application be costs in the cause.

3.

That each party be at liberty to apply with two (2) days notice.

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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