Fletcher v Weston (Trustee)
[2013] FCA 1356
FEDERAL COURT OF AUSTRALIA
Fletcher v Weston (Trustee); In the Matter of the Bankrupt Estate of Fletcher [2013] FCA 1356
Citation: Fletcher v Weston (Trustee); In the Matter of the Bankrupt Estate of Fletcher [2013] FCA 1356 Parties: LESLIE JAMES FLETCHER v PAUL WESTON AS TRUSTEE OF THE BANKRUPT ESTATE OF LESLEY FLETCHER ALSO KNOWN AS LESLIE FLETCHER and WORKERS COMPENSATION NOMINAL INSURER; IN THE MATTER OF THE BANKRUPT ESTATE OF LESLEY FLETCHER File number: NSD 1791 of 2013 Judge: NICHOLAS J Date of judgment: 27 November 2013 Legislation: Bankruptcy Act 1966 (Cth) ss 153B, 156A Date of hearing: 27 November 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 14 Solicitor for the Applicant: Mr R Kamiya of Cathers Mulley Kamiya Lawyers Solicitor for the Second Respondent: Mr A Blackie of Woods & Day Solicitors
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1791 of 2013
IN THE MATTER OF THE BANKRUPT ESTATE OF LESLEY FLETCHER
BETWEEN: LESLIE JAMES FLETCHER
ApplicantAND: PAUL WESTON AS TRUSTEE OF THE BANKRUPT ESTATE OF LESLEY FLETCHER ALSO KNOWN AS LESLIE FLETCHER
First RespondentWORKERS COMPENSATION NOMINAL INSURER
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
27 NOVEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Paul Weston as Trustee of the Bankrupt Estate of Lesley Fletcher also known as Leslie Fletcher.
2.Workers Compensation Nominal Insurer be joined as the second respondent to the proceeding.
3.The requirement that the applicant file and serve an amended application be dispensed with.
4.The applicant’s application filed on 2 September 2013 be dismissed.
5.The second respondent’s costs of the application be paid from the Bankrupt Estate in accordance with the Bankruptcy Act 1966 (Cth).
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1791 of 2013
IN THE MATTER OF THE BANKRUPT ESTATE OF LESLEY FLETCHER
BETWEEN: LESLIE JAMES FLETCHER
ApplicantAND: PAUL WESTON AS TRUSTEE OF THE BANKRUPT ESTATE OF LESLEY FLETCHER ALSO KNOWN AS LESLIE FLETCHER
First RespondentWORKERS COMPENSATION NOMINAL INSURER
Second Respondent
JUDGE:
NICHOLAS J
DATE:
27 NOVEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from Transcript)
On 6 September 2012 a sequestration order was made against the estate of Lesley Fletcher also known as Leslie Fletcher. The sequestration order was made upon the application of Workers Compensation Nominal Insurer (the Creditor) who has at all relevant times been represented by Allianz Australia Workers’ Compensation (NSW) Ltd (Allianz), a scheme agent. The sequestration order was made by a Registrar of the Federal Magistrates Court of Australia (at it was then known) at Sydney. Mr Paul Weston became the trustee of the applicant’s bankrupt estate by operation of s 156A(3) of the Bankruptcy Act 1966 (Cth) (the Act).
At the time of making the sequestration order the Registrar also ordered that the name of the respondent as shown in the Creditor’s Petition be amended from “Lesley Fletcher” to “Lesley Fletcher also known as Leslie Fletcher”. The Registrar also made an order dispensing with the requirement for re-verification and re-service of the Creditor’s Petition. The relevant minute of orders as entered includes a notation which indicates that the date of the act of bankruptcy was 28 November 2011.
On 2 September 2013 Leslie James Fletcher (Mr Fletcher) filed an application in this Court seeking an order pursuant to s 153B of the Act for the annulment of his bankruptcy. By his application Mr Fletcher also seeks a declaration that he is not indebted to the Creditor. For the reasons which follow, Mr Fletcher’s application will be dismissed.
Mr Fletcher has made a number of affidavits in support of his application. He was also briefly cross-examined. In his affidavits Mr Fletcher indicates that he is a victim of mistaken identity. He says that he has always been known as Leslie Fletcher, not Lesley Fletcher, and that he has always conducted his business affairs as Leslie Fletcher trading as Les Fletcher Powerlines. Attached to the first of Mr Fletcher’s affidavits are copies of a passport, a driver’s licence, a birth certificate, and other documents which identify Mr Fletcher as “Leslie James Fletcher”. The driver’s licence indicates that Mr Fletcher resides at 78 Scheyville Road Oakville, NSW, 2765 (the Oakville address). This is also the address Mr Fletcher provides in his first affidavit.
Also attached to Mr Fletcher’s first affidavit is a copy of a certificate of registration of business name. This certificate indicates that from 21 February 2009 until at least 21 February 2012 Mr Fletcher was the proprietor of the business name “Les Fletcher Powerlines”. It also indicates that the business was carried on at the Oakville address.
In his first affidavit Mr Fletcher states that he has never entered into a policy for workers compensation insurance with Allianz under the name Lesley Fletcher. He also states that he has never been personally served with documents relating to his bankrupt estate.
It is apparent from the affidavit evidence relied upon by the Creditor that Mr Fletcher was never personally served with relevant documents. The bankruptcy notice upon which the Creditor’s Petition was founded was sent by pre-paid post to the Oakville address. The Creditor’s Petition was served pursuant to orders for substituted service made on 1 August 2012 which dispensed with the requirement for personal service. The Creditor was instead required to serve the Creditor’s Petition and supporting documents by the following means:
(a)by handing them to any person apparently over the age of 16 years but, if this is not possible, by leaving them in the letterbox or affixing them to the front door in a sealed envelope addressed to Mr Fletcher at the Oakville address; and
(b)by faxing such documents to (02) 4572 3802; and
(c)by scanning such documents and sending them by email to [email protected]; and
(d)by sending a text (sms) message to Mr Fletcher on mobile number 0428 262 517 advising him that a Creditor’s Petition has been served on him by substituted service as described in paragraphs (a), (b) and (c) above.
It is apparent that the Registrar who made the sequestration order was satisfied that the order for substituted service had been complied with. Further, the evidence relied upon by the Creditor for the purpose of the present application confirms that the order for substituted service was complied with.
The bankruptcy notice was issued against Mr Fletcher on 16 August 2011. The amount claimed was $12,949.65 based upon two default judgments obtained against “Lesley Fletcher” in the Local Court of New South Wales. The first was entered on 13 January 2011 and the second on 16 May 2011. The evidence before me establishes that, in respect of the first of these judgments, a statement of claim was sent from the Local Court by pre-paid post to Mr Fletcher at the Oakville address. The evidence before me also establishes that in respect of the second judgment, a statement of claim was hand delivered into Mr Fletcher’s letterbox at the Oakville address.
The Creditor adduced evidence explaining how it came to provide workers compensation insurance to Mr Fletcher in the first place. This evidence includes a business record dated 17 August 2009 which I am satisfied was brought into existence on that date. It indicates that workers compensation insurance was arranged on that date in a telephone conversation between Mr Fletcher and Mrs Saldanha, a former employee of Allianz, in respect of the business carried on at the Oakville address under the name Les Fletcher Powerlines. The business record (the customer call record) includes amongst other information:
·the name and telephone number of Les Fletcher;
·a reference to the Oakville address;
·a reference to the business “Les Fletcher Powerlines” – a business described as “construction of powerlines”;
·a reference to an ABN number (the ABN) which other evidence shows as associated with Mr Fletcher’s business;
·a reference to a post office box for “Les Fletcher Powerlines” with the same postcode as the Oakville address (the post-office box).
The evidence relied upon by the Creditor also establishes that numerous policy documents and invoices were sent to the post-office box. It also shows that in the course of effecting service of the Creditor’s Petition in accordance with the orders for substituted service, numerous steps were taken to bring the Creditor’s Petition and related documents to Mr Fletcher’s notice by email, text message and fax. These efforts are referred to in the affidavit of Mr Woods and they are also referred to by Mr Fletcher in an affidavit in reply to Mr Wood’s affidavit. According to Mr Fletcher, he was not aware of any such email, text message or fax. Mr Fletcher says that in his business, by which I understand him to mean that carried on under the name Les Fletcher Powerlines, he receives a number of calls on a daily basis which he tends to ignore if not related to his business. His evidence does not explain how he distinguishes telephone calls, text messages and correspondence that relate to his business from those that do not relate to it without listening to or reading such communications.
In his first affidavit Mr Fletcher also explained why he did not respond to correspondence from his bankruptcy trustee. His evidence was that he did not respond to the trustee’s correspondence because it was addressed to “Lesley Fletcher” rather than Leslie Fletcher. I find that explanation for Mr Fletcher not responding to his bankruptcy trustee incredible.
I do not accept Mr Fletcher’s evidence that he is the victim of mistaken identity. Measured against the objective facts – in particular the business records to which I have referred including the customer call record, the business name, registration and the ABN registration – I cannot accept Mr Fletcher’s evidence that he did not arrange for workers compensation insurance to be taken out in respect of his business through Allianz.
The application is dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 16 December 2013
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