Enterprise and Management Pty Ltd v Tomasevich

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.