BANKRUPTCY – application for sequestration order – whether bankruptcy notice was served at last known address of the judgment debtor – the address which has been made known by the applicant as at the time closest to the date in question
Bankruptcy Regulations reg 16.01(1)(c)
Federal Court Rules O 77 r 19(3)
IN THE MATTER OF JOSEPH ANTHONY STANTON TREVOR HOWARD DRAKE TRADING AS T H DRAKE & ASSOCIATES v JOSEPH ANTHONY STANTON N 7106 of 1999
TAMBERLIN J SYDNEY 5 NOVEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 7106 OF 1999
IN THE MATTER OF JOSEPH ANTHONY STANTON
BETWEEN:
TREVOR HOWARD DRAKE TRADING AS T H DRAKE & ASSOCIATES APPLICANT
AND:
JOSEPH ANTHONY STANTON RESPONDENT
JUDGE:
TAMBERLIN J
DATE OF ORDER:
5 NOVEMBER 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The necessity to file evidence of search in accordance with O 77 r 19(3) of the Federal Court Rules be dispensed with.
2. A sequestration order is made in the estate of Joseph Anthony Stanton.
3. Max Christopher Donnelly is appointed as Official Trustee of the estate.
4.A copy of the sequestration order is to be sent to the Official Receiver within 48 hours.
5. The respondent pay the applicant’s costs, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 7106 OF 1999
IN THE MATTER OF JOSEPH ANTHONY STANTON
BETWEEN:
TREVOR HOWARD DRAKE TRADING AS T H DRAKE & ASSOCIATES APPLICANT
AND:
JOSEPH ANTHONY STANTON RESPONDENT
JUDGE:
TAMBERLIN J
DATE:
5 NOVEMBER 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
In this matter the only question for determination by the Court is whether a bankruptcy notice was served on 4 December 1998 in accordance with the requirements of regulation 16.01(1)(c) of the Bankruptcy Regulations. That regulation provides that unless the contrary intention appears, where a document is required or permitted to be served on a person, the document may be left in an envelope or similar packaging, marked with the person's name at the last known address of the person. The issue turns on the words: "at the last-known address of the person".
Regulation 16.01(2) provides that a document given or sent to or served on a person in accordance with sub-regulation (1) is taken in the absence of proof to the contrary to have been received by or served on the person. In the present case the question arises as to whether the envelope was left at the last known address of the person. The evidence establishes that it was left in an envelope at 396 Grey Street, Glen Innes, and was marked with the person's name.
The Bankruptcy Notice which was issued on 9 November 1998 shows the address of the debtor, who is the respondent in this matter, on the first page as 292 Grey Street,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Drake v Stanton [1999] FCA 1635
Case
[1999] FCA 1635
Decision Date
CaseChat Overview and Summary
The case of Drake v Stanton involved a dispute over the estate of Joseph Anthony Stanton, with Max Christopher Donnelly seeking a sequestration order. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the applicant needed to comply with a specific procedural requirement set out in rule 19(3) of Order 77 of the Federal Court Rules, concerning the filing of evidence of search. Additionally, the court had to determine if a sequestration order should be granted in Stanton's estate and who should be appointed as the Official Trustee.
The court found that the procedural requirement for filing evidence of search was not strictly necessary in this case, given the circumstances and the fact that the opposing party did not raise any issues regarding the lack of such evidence. The court considered the overall fairness and expeditious resolution of the matter in its decision. The court concluded that granting a sequestration order was appropriate, considering the evidence presented. The court appointed Max Christopher Donnelly as the Official Trustee of Stanton's estate and ordered him to send a copy of the sequestration order to the Official Receiver within 48 hours. Finally, the court ruled that the respondent, Joseph Anthony Stanton, should pay the applicant's costs, including any reserved costs.
Orders
Orders of the court
1. The necessity to file evidence of search in accordance with O 77 r 19(3) of the Federal Court Rules be dispensed with.
2. A sequestration order is made in the estate of Joseph Anthony Stanton.
3. Max Christopher Donnelly is appointed as Official Trustee of the estate.
4. A copy of the sequestration order is to be sent to the Official Receiver within 48 hours.
5. The respondent pay the applicant’s costs, including any reserved costs.