Enterprise and Management Pty Ltd v Tomasevich - [2015] FCCA 922

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENTERPRISE & MANAGEMENT PTY LTD & ANOR v TOMASEVICH

[2015] FCCA 922

Catchwords:
BANKRUPTCY – Application for leave under s.40(1)(g) of the Bankruptcy Act 1966 (Cth) (Act) to serve bankruptcy notice outside Australia – whether when considering whether to grant leave under s.40(1)(g) it is necessary for the Court to be satisfied the creditor has a prima facie case or a good arguable case that the creditor will satisfy the jurisdictional requirements prescribed by s.43(1) of the Act on the hearing of the creditor’s petition based on the debtor’s not complying with the bankruptcy notice – whether there are any considerations of comity that weigh against granting leave under s.40(1)(g) of the Act.

BANKRUPTCY – Application for substituted service of bankruptcy notice under s.309(2) of the Act – whether there are abnormal difficulties in serving the bankruptcy notice on the debtor – whether it is likely the debtor will be informed of the bankruptcy notice if it is delivered to the offices of the lawyer who represented the debtor in the proceedings that resulted in the judgment on the basis of which the bankruptcy notice was issued – order for substituted service made.

Legislation:

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41, 43, 43(1), 43(1)(b), 309(2)

Battenberg v Restrom [2006] 149 FCR 128
Commonwealth Bank of Australia v Oswal [2013] FCA 391

First Applicant:

Second Applicant:

ENTERPRISE & MANAGEMENT PTY LTD

GUY SHUTE

Respondent:

MATTIE TOMASEVICH

File Number:

SYG 132 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

11 March 2015

Delivered at:

Sydney

Delivered on:

15 April 2015

REPRESENTATION

Second applicant in person and on behalf of all applicants.

ORDERS

Pursuant to s.309(2) of the Bankruptcy Act 1966 (Cth) instead of effecting personal service on Mattie Tomasevich of bankruptcy notice BN 174224, bankruptcy notice BN 174224 be delivered to a person apparently over the age of 16 at the offices of Clamenz Lawyers inside an envelope addressed as follows:
Clamenz Lawyers
Level 24, 1 Alfred Street
Sydney NSW 2000
Attention: Mr Dev Menon
The applicants have liberty to apply to the Court in relation to any issue that may arise in connection with the service of bankruptcy notice BN 174224 as required by order 1.
The applicants include in the envelope referred to in order 1 a sealed copy of these orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 132 of 2015

ENTERPRISE & MANAGEMENT PTY LTD

First Applicant

GUY SHUTE

Second Applicant

And

MATTIE TOMASEVICH

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an ex parte application by Enterprise & Management Pty Ltd (EMP) for orders relating to the service of a bankruptcy notice issued against the respondent, Ms Mattie Tomasevich.
In its application EMP claims orders that the bankruptcy notice be served on Ms Tomasevich by its being served on solicitors that had previously acted for her, and also by the bankruptcy notice being emailed to a number of email addresses apparently belonging to Ms Tomasevich and to…

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

Case: [2015] FCCA 922
Decision Date: 15 April 2015

CaseChat Overview and Summary

Enterprise and Management Pty Ltd (the creditor) sought leave from the Federal Court of Australia to serve a bankruptcy notice on Mr. Tomasevich (the debtor) outside of Australia, and alternatively, sought an order for substituted service of the bankruptcy notice. The dispute arose from the creditor's attempt to enforce a judgment debt against the debtor, who was believed to be residing overseas.

The primary legal issues before the Court were whether, in considering an application for leave to serve a bankruptcy notice outside Australia under s 40(1)(g) of the *Bankruptcy Act 1966* (Cth), it was necessary for the Court to be satisfied that the creditor had a prima facie or good arguable case that the jurisdictional requirements for a creditor's petition would be met. Additionally, the Court considered whether principles of comity might militate against granting such leave. The secondary issue concerned whether there were abnormal difficulties in serving the bankruptcy notice on the debtor, and if so, whether an order for substituted service, by delivery to the offices of the debtor's former legal representatives, was appropriate under s 309(2) of the Act.

Judge Manousaridis determined that for the purposes of s 40(1)(g), the Court was not required to be satisfied of a prima facie or good arguable case that the jurisdictional requirements for a creditor's petition would be met. The focus was on whether the creditor had a good arguable case that the debtor had committed an act of bankruptcy by failing to comply with the bankruptcy notice. The Court found no considerations of comity that would prevent the granting of leave to serve the notice abroad. Regarding substituted service, the Court found that there were abnormal difficulties in effecting personal service on the debtor overseas and that delivery to his former lawyers was likely to bring the notice to his attention, thus satisfying the requirements of s 309(2).

The Court made orders granting leave to serve the bankruptcy notice outside of Australia and, in the alternative, ordered that service be effected by leaving a copy of the bankruptcy notice at the offices of the legal firm that represented the debtor in the proceedings that led to the judgment debt.

Orders