Hanger, John v Daniel Robertson Australia Pty Ltd (ACN 005 008 622)

[1997] FCA 1075

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7413 of 1997

RE:	JOHN HANGER DEBTOR
EX PARTE:	DANIEL ROBERTSON AUSTRALIA PTY LTD (ACN 005 008 622) CREDITOR

JUDGE:	RYAN J
DATE:	13 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT ON SERVICE
OF BANKRUPTCY NOTICE

RYAN J:    An issue has arisen as to whether the debtor was ever served with the bankruptcy notice on which the petitioning creditor seeks, in its amended petition, to rely as having given rise to an act of bankruptcy.  Evidence has been received from both the debtor and the process server directed to that issue and it is convenient to rule on it now.  The process server, Raymond Smith, has sworn on 6 June 1997:

1.On Wednesday, the 4th day of June 1997, at 6.31 o'clock in the after noon I served John Hanger with a copy of the Bankruptcy Notice dated and signed by an authorised officer for the Official Receiver on the 22.5.97 together with a copy of the Magistrates’ Court Certified Extract dated 13.12.96 by delivering the said documents to him personally at 9 Portobello Place Wheelers Hill in the State of Victoria. 

2.I identified the person served by me as John Hanger by reason of the following statements made at the time of service:

I said: “Is your name John Hanger?”

The person replied:     Yes

I then said:“Are you the person referred to in this proceedings as the       debtor?"

The person replied:     Yes

3.Annexed to this Affidavit and shown to me at the time of swearing this my affidavit and marked with the letter “A” is a copy of the Bankruptcy Notice dated and signed by an authorised officer for the Official Receiver on 22.5.97 and marked with the letter “B” is a copy of the Magistrates’ Court Certified Extract dated 13.12.96 as referred to in paragraph 1.

Except for the name and address of the deponent, the day, date and time of service and the address at which service was allegedly effected, and the two answers, “yes”, ascribed to the person served, the body of the affidavit is typewritten and was conceded by Mr Smith, under cross-examination, to have been pre-prepared. Mr Smith also acknowledged that he had asked in a preliminary way of the person served, “John Hanger?” before asking the two questions indicated in the pre-prepared form of affidavit. That preliminary form of interrogation, he conceded, was not reflected in his pro forma affidavit.

However, despite that acknowledgment, Mr Smith was not shaken in cross-examination by counsel for the debtor and claimed to have independently recorded the fact of service on a job sheet which was later transcribed by Mr Smith's wife, in his presence, into a register of service which was produced to the Court.  The job sheet, he said, was returned to his employer, Network Process Servers, together with the original affidavit to which it was attached and which had been completed by Mr Smith.  It is not without significance that Mr Smith, also on 6 June 1997, swore an affidavit deposing to three earlier attempts of service of the same bankruptcy notice on Mr Hanger on 31 May, 1 June and 3 June 1997.

Mr Hanger, on the other hand, has sworn in an affidavit made and filed today which contains these paragraphs::

3.I deny that I was served with the bankruptcy notice issued on the application of Tait Timber and Hardware Pty Ltd, (“Tait”) on 4 June 1997 or at any other time.  The first time I saw a copy of that notice was when shown the copy annexed to the affidavit of Donald Ward Taylor of 5 September 1997.

4.I was not at home at 6.31 pm on Wednesday, 4 June 1997.  I was at the home of my mother-in-law Gwen Kennedy, and her husband, Jim Kennedy, at 40 Holyrood Drive, Vermont, with my wife Linda and my two children between 5.30 pm and 8.30 pm for dinner on that evening.  My mother-in-law works on weekends and has two day off per week,  one of those days being Wednesday.  It is common for my family to go to her place for dinner on a Wednesday.

5.I keep an office desk calendar with appointments recorded.  This calendar contains an entry for 4 June 1997 indicating an appointment for dinner at my mother-in-law’s house.  Annexed to this my affidavit and marked “JH1” is a copy of the relevant page from the desk calendar.

The desk calendar for the year 1997, in its entirety, was produced to the Court.  However, it was conceded by Mr Hanger, under cross-examination, that he has no specific recollection of dining at his mother-in-law's home at the time and on the date on which he was allegedly served with the bankruptcy notice.  He relies entirely for that assertion on the notation in the desk calendar which he concedes was made by his wife.  It is also significant that the desk calendar records a similar notation "dinner mum", also apparently in Mr Hanger's wife's hand, for 25 July 1997 but Mr Hanger had no independent recollection of that occasion, despite the fact that it would have represented a departure from what he said was the usual practice for himself and his family to dine with his mother-in-law on a Wednesday at about six weekly intervals.

Although, as Mr Hanger acknowledged, there was no serious impediment to his wife, his mother-in-law, his father-in-law, or even, as far as the Court is aware, one or other of his children, giving evidence to corroborate the fact of having dined at Vermont at the time and on the date in question, no such corroborative evidence was given.  In all of the circumstances I am satisfied on the balance of probabilities that the bankruptcy notice was served at the time and place deposed to by Mr Smith.  Mr Smith had no identifiable motive to deceive the Court about the time and place of that service having been effected at the time and place to which he has sworn.  As I have indicated, he had made three earlier unsuccessful attempts to serve the same bankruptcy notice and had given details of those attempts in another affidavit contemporaneous with that deposing to what was said to be the successful service.  It may be that the entry on which Mr Hanger relied was mistakenly made by his wife recording an appointment on the wrong date or that the arrangement which it denotes was subsequently cancelled.  In all the circumstances, I am able to express the satisfaction of the court that service has been effected, as deposed to by Mr Smith.  I shall make a declaration to that effect. 

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             13 October 1997

Counsel for the Debtor:	Mr R Broberg
Solicitors for the Debtor:	Irlicht & Broberg
Counsel for the Petitioning Creditor:	Mr J Nolan
Solicitors for the Petitioning Creditor:	Messrs Ward Taylor
Counsel for Supporting Creditor (Tait Timber and Hardware Pty Ltd)	Mr C Purdy
Solicitors for Supporting Creditor (Tait Timber and Hardware Pty Ltd)	Herbert Geer & Rundle
Counsel for Supporting Creditor (Commonwealth Bank of Australia)	Ms M McNamara
Solicitors for Supporting Creditor (Commonwealth Bank of Australia)	Ian F Purbrick
Date of Hearing:	13 October 1997
Date of Judgment:	13 October 1997