Equititrust Limited v Bosiljevac - [2007] FCA 323

FEDERAL COURT OF AUSTRALIA
Equititrust Ltd v Bosiljevac [2007] FCA 323
EQUITITRUST LTD ACN 061 383 944 v STEVE ZELJKO BOSILJEVAC
QUD005 OF 2007
COLLIER J
8 MARCH 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD005 OF 2007

BETWEEN:

EQUITITRUST LTD ACN 061 383 944
Applicant

AND:

STEVE ZELJKO BOSILJEVAC
Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

8 MARCH 2007

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Pursuant to s 309(2) Bankruptcy Act 1966, that service of Bankruptcy Notice QN1508/2006 (the “notice”) be effected on the respondent:
(a) by scanning the notice and storing it in Adobe Portable Document format and emailing it to sbosiljevac@ozemail.com.au; and
(b) by sending a copy of the notice by ordinary pre-paid post to each of:
(i) 1 Marseille Court, Bundall, Qld 4217; and
(ii) 124/13 Commodore Drive, Paradise Waters, Qld 4217; and

(c) by sending a copy of the notice by pre-paid airmail (or equivalent) to 42 Emirates Towers, Sheikh Zayed Road, Dubai, United Arab Emirates; and
(d) by transmitting a copy of the notice by facsimile to 0011 97 143993488; and
(e) that service by transmission of facsimile be deemed effective after three bona fide attempts.
2.When effecting service pursuant to para 1, in each case, a copy of the order be served by the same means.
3.Leave be granted to the applicant to service the notice outside Australia.
4.Service in accordance with this order be deemed good and sufficient service of the notice upon the respondent.
5.The bankruptcy notice be deemed to be served five (5) days after the last act of service referred to in para 1 of this order has been carried out (“the relevant date”).
6.The notice be amended by deleting the words “after service on you of this bankruptcy notice” in para 3 and substituting the relevant date.
7.Pursuant to s 40(g) Bankruptcy Act the time for compliance with the notice be fixed at 28 days after the relevant date.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD005 OF 2007

BETWEEN:

EQUITITRUST LTD ACN 061 383 944
Applicant

AND:

STEVE ZELJKO BOSILJEVAC
Respondent

JUDGE:

COLLIER J

DATE:

8 MARCH 2007

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is an ex parte application filed 8 January 2007 seeking orders that:
1.Pursuant to s 309(2) Bankruptcy Act 1966 that service of Bankruptcy Notice QN1508/2006 (the notice) be effected on the respondent by:
(a) Scanning of the notice and storing it in Adobe Portable Document Format and emailing it to sbosiljevac@ozemail.com.au; and
(b) by sending a copy of the notice by ordinary pre-paid post to each of:
(i) 1 Marseille Court, Bundall, Qld 4217; and
(ii) 124/13 Commodore Drive, Paradise Waters, Qld 4217; and
(c) by sending a copy of the notice by prepaid airmail or equivalent to 42 Emirates Towers, Sheikh Zayed Road, Dubai, United Arab Emirates; and
(d) by transmitting a copy of the notice by…

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.

Continue reading Equititrust Limited v Bosiljevac

Details

AGLC: Equititrust Limited v Bosiljevac [2007] FCA 323
Case: [2007] FCA 323
Decision Date: 8 March 2007

CaseChat Overview and Summary

The case of Equititrust Limited v Bosiljevac involved the applicant, Equititrust Limited, seeking to enforce a bankruptcy notice against the respondent, Mr Bosiljevac. The matter was heard in the Federal Circuit Court of Australia, where the primary concern was the manner in which the bankruptcy notice should be served upon the respondent. The applicant sought various modes of service, including email, postal mail, airmail, and facsimile, due to the respondent's international residence and the potential difficulty in effecting personal service.

The court was tasked with determining the appropriate methods for serving the bankruptcy notice on Mr Bosiljevac, who resided in the United Arab Emirates and had multiple addresses in Australia. The applicant argued that traditional methods of service, such as personal delivery or leaving the notice at the respondent's last known address, were impractical given the respondent's international presence and transient nature. The court needed to assess whether alternative methods of service, including electronic means, were permissible under the relevant legislative framework.

In delivering the judgment, the court found that the Bankruptcy Act 1966 provided sufficient flexibility to allow for various modes of service. The court emphasised the importance of ensuring that the service methods were reliable and capable of providing proof of delivery. It held that serving the bankruptcy notice via email, postal mail, airmail, and facsimile were all appropriate means, provided they were executed correctly. The court also deemed it necessary to fix the time for compliance with the notice, setting a deadline of 28 days following the completion of the last act of service.

The orders issued by the court mandated specific methods for serving the bankruptcy notice on Mr Bosiljevac, including emailing a scanned copy to his known email address, sending postal copies to his Australian addresses, and transmitting a facsimile to a contact in Dubai. The court granted the applicant leave to serve the notice outside Australia and deemed the service effective upon completion of the specified acts. The court further amended the notice to reflect the new compliance deadline and specified that service under the order would be considered sufficient service of the notice. The court's ruling facilitated the enforcement of the bankruptcy notice by accommodating the respondent's international status and multiple residences.

Orders

Orders of the court

1. Pursuant to s 309(2) Bankruptcy Act 1966, that service of Bankruptcy Notice QN1508/2006 (the “notice”) be effected on the respondent:

(a) by scanning the notice and storing it in Adobe Portable Document format and emailing it to sbosiljevac@ozemail.com.au; and

(b) by sending a copy of the notice by ordinary pre-paid post to each of:

(i) 1 Marseille Court, Bundall, Qld 4217; and

(ii) 124/13 Commodore Drive, Paradise Waters, Qld 4217; and

(c) by sending a copy of the notice by pre-paid airmail (or equivalent) to 42 Emirates Towers, Sheikh Zayed Road, Dubai, United Arab Emirates; and

(d) by transmitting a copy of the notice by facsimile to 0011 97 143993488; and

(e) that service by transmission of facsimile be deemed effective after three bona fide attempts.

2. When effecting service pursuant to para 1, in each case, a copy of the order be served by the same means.

3. Leave be granted to the applicant to service the notice outside Australia.

4. Service in accordance with this order be deemed good and sufficient service of the notice upon the respondent.

5. The bankruptcy notice be deemed to be served five (5) days after the last act of service referred to in para 1 of this order has been carried out (“the relevant date”).

6. The notice be amended by deleting the words “after service on you of this bankruptcy notice” in para 3 and substituting the relevant date.

7. Pursuant to s 40(g) Bankruptcy Act the time for compliance with the notice be fixed at 28 days after the relevant date.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

COLLIER J

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Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD005 OF 2007

BETWEEN:	EQUITITRUST LTD ACN 061 383 944 Applicant
AND:	STEVE ZELJKO BOSILJEVAC Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	8 MARCH 2007
WHERE MADE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD005 OF 2007

JUDGE:	COLLIER J
DATE:	8 MARCH 2007
PLACE:	BRISBANE