Field (Trustee), in the matter of Mellor (Bankrupt) v Mellor
[2024] FedCFamC2G 443
•10 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Field (Trustee), in the matter of Mellor (Bankrupt) v Mellor [2024] FedCFamC2G 443
File number(s): PEG 107 of 2024 Judgment of: JUDGE STREET Date of judgment: 10 May 2024 Catchwords: BANKRUPTCY – order for substituted service – reasonable steps taken to attempt to effect service on the respondents – service in person impractical – oral application under r 6.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – no appearance by the respondents Legislation: Bankruptcy Act 1966 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Division: Division 2 General Federal Law Number of paragraphs: 5 Date of hearing: 10 May 2024 Place: Sydney Solicitor for the Applicant: Mr W MacDonald of Roe Legal Services Respondents: No appearance ORDERS
PEG 107 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF DEBBIE MARIE MELLOR, BANKRUPT
BETWEEN: MALCOLM FIELD AS TRUSTEE OF THE PROPERTY OF DEBBIE MARIE MELLOR
Applicant
AND: DEBBIE MARIE MELLOR
First Respondent
ANTONY MELLOR
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
10 MAY 2024
THE COURT ORDERS THAT:
1.Pursuant to rule 6.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the Court orders that substituted service of the originating application, affidavit, genuine steps document and a copy of this order may be affected upon the respondents, by delivery of the same to the doorstep of the premise at 16 Doddington Way, Quinns Rocks, Western Australia, 6030 and by forwarding an email to [email protected] with the commencement heading, “Order for substituted service upon Debbie Marie Mellor and Anthony Mellor” attaching the originating process, with supporting affidavit, genuine steps document and this order.
2.The respondents are directed to file and serve a response together with an address for service and any affidavit evidence that they wish to rely upon on or before 23 May 2024.
3.The proceedings are fixed for a final hearing commencing at 9:30AM (WST)/ 11:30AM (AEST) on 30 May 2024 via video and/ or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
4.Directs that an affidavit of service, in compliance with the substituted service order, is to be filed and be served by the same method in Order 1 above on or before 16 May 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These are proceedings within the Court's jurisdiction under section 27 of the Bankruptcy Act 1966 (Cth) and was commenced on 27 March 2024 by the trustee against the joint registered proprietors of a land in Western Australia. The proceedings seek a declaration as to the trustee being a beneficial owner of half the equal shares as a tenant in common of a property being 16 Doddington Way, Quinns Rocks, Western Australia, 6030 and seek orders for the delivery up of vacant possession and the sale of the property and disposition of the proceeds.
The applicant has been endeavouring to effect service and has tendered before the Court material in support of an application under rule 6.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for substituted service. The applicant contends that service in person, on the evidence before the Court, is currently impractical and seeks orders for substituted service.
The Court is satisfied from the evidence that has been filed that reasonable steps have been taken to attempt to effect service on the respondents. The Court notes that it was suggested that the respondents were not continuing to reside at the relevant premises. The Court accepts the applicant's contention that does not appear to be the true position, and the Court is satisfied that the steps the Court has proposed in its order for substituted service are likely to bring the existence and nature of these proceedings to the attention of both respondents.
The Court has also taken into account that these are bankruptcy proceedings of a kind that should be dealt with expeditiously. The Court has accordingly provided a timetable for the filing of an affidavit of service in compliance with the order for substituted service, the filing of a response to an affidavit of evidence by the respondents and fixed the matter for hearing. Proceedings of this kind should ordinarily be dealt expeditiously, given the nature of and public interest in bankruptcy proceedings and also the interests of the creditors.
It is for these reasons the Court makes the orders for substituted service.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 16 May 2024
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