Gouras v Voitin (No. 2) - [2023] FedCFamC2G 263

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gouras v Voitin (No. 2) [2023] FedCFamC2G 263

File number(s): MLG 1487 of 2022

Judgment of: JUDGE MANSINI

Date of judgment: 6 April 2023

Catchwords: PRACTICE AND PROCEDURE – second application for orders allowing substituted service on First Respondent – interlocutory application allowed.

Legislation:
Bankruptcy Act 1966 (Cth) s.58(3).

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr.6.14, 6.15.

Cases cited:
Australian Competition and Consumer Commission v Facebook, Inc [2021] FCA 244

Ricegrowers Co-Operative Ltd v ABC Containerline NV [1996] FCA 1663; (1996) 138 ALR 480

Royal Express Pty Ltd (Recs and Mgrs Apptd) (Admins Apptd) v Huang, Royal Express Pty Ltd (No 3) [2021] FCA 611

Division: Division 2 General Federal Law

Number of paragraphs: 24

Date of last submission/s: 17 March 2023

Date of hearing: On the papers in chambers

Place: Melbourne

Table of Corrections

18 April 2023 At order 2, the address and the email address have been suppressed for publication.

18 April 2023 At paragraph 12(c), the address has been suppressed for publication.

18 April 2023 At paragraph 13, the number 12(b) was replaced with the number 12(e).

18 April 2023 At paragraph 15, the address has been suppressed for publication.

18 April 2023 At paragraph 23, the address has been suppressed for publication.
ORDERS

MLG 1487 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ATHANASIOS GOURAS
Applicant

AND:
JOHN MICHAEL VOITIN
First Respondent

AND:
PAUL ANTHONY ALLEN
Second Respondent

order made by:

JUDGE MANSINI

DATE OF ORDER:

6 April 2023

THE COURT ORDERS THAT:
1.Pursuant to r.6.14 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth), personal service on the First Respondent of the ‘Application: Federal Circuit and Family Court (Division 2) (Bankruptcy) Rules 2021 form B2’ filed on 15 June 2022 (Application) be dispensed with.
2.The Application together with “the Documents” as defined herein, be served on the First Respondent as follows:
(a)by express post, addressed: Attention Mr Voitin, XXXX, Deepdene Victoria 3103:
(i)a covering letter;
(ii)a sealed copy of this order;
(iii)a sealed copy of the Application;
(iv)the Court’s orders made on 27 September 2022;
(v)the Court’s reasons and orders made on 31 October 2022;
(vi)a copy of the affidavit affirmed on 15 June 2022 by Mr Athanasios Gouras;
(vii)a copy of the affidavit affirmed on 27 September 2022 by Mr Sam Angelatos;
(viii)a copy of the affidavit affirmed on 4 October 2022 by Mr Sam Angelatos;
(ix)a copy of the affidavit affirmed on 28 October 2022 by Mr Sam Angelatos;
(x)a copy of the affidavit affirmed on 17 March 2023 by Mr Sam Angelatos;
(xi)a copy of the affidavit affirmed on 28 February 2023 by Mr Basilios Meletsis; and
(xii)the Court’s reasons and orders made on 6 April 2023,

(collectively, the Documents).
(b)by placing the Documents in an envelope marked for the attention of Mr Voitin and leaving the envelope in…

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 Gouras v Voitin (No. 2)

Details

AGLC: Gouras v Voitin (No. 2) [2023] FedCFamC2G 263
Case: [2023] FedCFamC2G 263
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) was presented with an application by Athanasios Gouras to allow substituted service on John Michael Voitin in a proceeding related to a provable debt after Voitin became bankrupt. The case involved two respondents: Voitin and his trustee in bankruptcy, Paul Anthony Allen. The primary legal issue was whether the Court should grant substituted service on Voitin, given that personal service had been unsuccessful.

The court examined the requirements for substituted service under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. It was established that while there is no specific service requirement for an application made under section 58(3) of the Bankruptcy Act 1966 (Cth), the FCFCOA Rules apply to service and substituted service of such an application. The court considered the factors outlined in rule 6.15 of the FCFCOA Rules, such as whether reasonable steps had been taken to serve Voitin and whether it was likely that these steps had brought the proceedings to his attention. The court also looked at relevant case law, which indicated that "impracticable to serve" should be interpreted broadly, and that the proposed method of substituted service should aim to achieve the object of notifying the respondent of the proceedings.

After reviewing the evidence, the court determined that it was impractical to serve Voitin personally as of the date the second substituted service application was made. The court found that placing documents in a conspicuous location at and posting by express post to Voitin’s last known address at Deepdene, Victoria, and serving Ms. Tracy Rothwell of Rothwell Lawyers, who appeared on the record as Voitin’s representative in other ongoing court proceedings, was likely to bring the proceedings to Voitin’s attention. The court ordered that personal service be dispensed with and service be effected by the specified methods. The substantive application will be programmed for a later date after compliance with these orders.

This decision highlights the importance of demonstrating that reasonable efforts have been made to serve the respondent personally and that the proposed method of substituted service is likely to achieve the objective of notifying the respondent of the proceedings. The court’s decision was based on the totality of the evidence presented, including unsuccessful attempts to serve Voitin personally and the likelihood that serving Rothwell Lawyers would bring the proceedings to Voitin’s attention.

Orders