Holliday, D. & J. v Mascord, G.N. & J

[1989] FCA 824

JUDGMENT No. ..... %?&....$?L.

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IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY )	NO. NP 2046 of 1989

)

BANKRUPTCY DIVISION )

RE:  DOUGLAS HOLLIDAY AND JULIE
HOLLIDAY

V L W Debtors

EX PARTE:  GEOFFREY NORMAN MASCORD
and JAN MASCORD

A31 Petitionina Creditors

TEMPORE REASONS FOR JUDGMENT

Given 28 November 1989

BURCHETT J.

Mrs Holliday defends the creditor's petition brought against her on one ground only. She contests the evidence of service of the bankruptcy notlce. In doing so, she is supported by the evidence of her husband. According to each of them, they were both present at the premises where they worked at about 7 o'clock in the evening, when servlce was admittedly effected upon the husband. It is also admitted by Mrs Holliday that the documents served included bankruptcy notices which related to each of them, and not merely one bankruptcy notice relating to the husband. He, for his part, is not prepared to say whether that is so or not. She took the documents to her sollcitoc the very next day, but there is no suggestion that any complaint was made concerning service until after the bankruptcy petition was

launched.

A matter whlch is not in dlspute between the process

server, Mr Ball, on the one hand, and Mr and Mrs Holliday on the other, is that he had previously called at their home in an attempt to effect service. His evidence is that he there saw, at about 3.30 in the afternoon, a boy aged about 10 or 12 who informed him that Mrs Holliday would be at Walker Street, Warners Bay, and that his father could be at a Hunter Street shop. The process server went to the shop, where he was told that he had mlssed Mr Holllday by an hour. He then returned to the home address at about 5 o'clock in the afternoon. He decided to wait there because he had understood from the boy that Mr and Mrs Holliday would be returning home at about 5.30. He walted until about a quarter to seven, and as they had still not arrived he then decided to go to Walker Street, Warners Bay which was about 15 minutes drive away. He arrived at about 7 o'clock in the evening. He said that he asked for Mr Holllday, who was pointed out to him, that he told Mr Holliday he had court papers, and asked whether his wife was there too, whereupon Mr Holliday said that she was.

According to the process server's account, Mr Holllday took him to an office where Mrs Holllday then was.	He had never
seen her before, and he asked: "Are you Julie Holliday?"	receiving the answer "yes". Following that, he served each of
them.
I heard the process server, Mr Ball, cross-examined concerning this occasion, and also concerning the events upon the subsequent occasion when he served the petition, as he said, on each of them - the latter occasion being dealt wlth, in evidence, particularly for the light it threw on the probabilities regarding the former. On the latter occasion, Mr Ball failed at first to recognise Mrs Holliday, who, he said, had her hair done somewhat differently. If Mr Ball's account is correct, this incident mlght explaln the genesis of the idea that servlce had not been effected personally upon her on the first occasion. I did not detect anything in Mr Ball's demeanour, or in the substance of hls evidence, to cast any serious doubt on his account. He conceded with frankness certain errors in the rather formal affidavits initially filed. Although that is not a matter which should be treated lightly, I take the same vlew which Mr Justice Hill took in re Roberts ex parte Evans, an unreported decislon delivered by him on 25 August 1989, where he did not regard a process server's credit as significantly affected by a similar failing. As Mr Justice Hill did, I interpolate that Mr Ball should be more careful to avoid that sort of problem in future, but I do not regard it in the circumstances of this case as a reason to disbelieve his account. In fact, I was on the contrary inclined to think it to his credit that he was frank about the matter.
I think I should add that there was nothing in the demeanour of Mr and Mrs Holliday which in itself demanded rejection of their account. However, I think it extremely improbable, in all the circumstances revealed by the evidence, and particularly in the light of the circumstances whlch were not in dispute, that Mr Ball would have attended premises where he had been told he could expect to flnd each of the persons he had a duty to serve personally; that he should find each of them there and together; that he should serve both sets of documents, which it was his task to hand to each of them; but that he should hand both sets to Mr Holliday, and make no attempt to take the easy further step of serving Mrs Holliday. Having heard all three of them, I am not prepared to accept that improbability. On the probabilities, and bearing in mlnd the seriousness of the issue (to which Mr Justice Hill drew attention in the judgment I have cited), I am, nevertheless, satisfied that servlce was effected as sworn to by Mr Ball.
There was, as I indicated at the beginning of these reasons, no other matter disputed in the notice of opposition or in the submissions on behalf of the debtor, Mrs Holliday. That, of course, does not relieve the court, in a case of this kind, from being satisfied on each of the matters proof of which is required under section 52(1) of the Act. I have considered the evidence tendered, and am satisfied that the debtor has committed the act of bankruptcy alleged in the petition; and I am satisfled of proof of the other matters required to be proved. I note that Edward Michael Ring, a registered trustee, has consented to act as the trustee of the estate of the debtor. I make a
that costs, including reserved costs, be taxed and paid according sequestration order against the estate of the debtor. I order to the Act; and I direct that a draft of this order be delivered to the Registrar within 7 days in accordance with rule 124(2).
In relation to Mr Holliday, I am satisfied that the debtor has committed the act of bankruptcy alleged in the petition against him. I am satisfied of proof of the other matters of which section 52(1) of the Act requires proof. I note that the same registered trustee has consented to act as the trustee of the estate of the debtor. I make a sequestration order against the estate of the debtor. I order that costs, including reserved costs, be taxed and paid according to the Act; and I direct that a draft of this order be delivered to the Registrar within 7 days in accordance with rule 124(2).
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.
Dated: 28 November 1989