HUDSON TIMBER and Hardware Ltd v Mudge

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUDSON TIMBER & HARDWARE LTD v MUDGE [2003] FMCA 298

BANKRUPTCY – Creditor’s petition – service of the creditor’s petition and bankruptcy notice – whether the debtor served personally – dispute of fact – whether personal service of the creditor’s petition required whether the debtor appears in the bankruptcy proceedings.

Bankruptcy Act 1966 (Cth), s.52(1)

Bankruptcy Regulations

Applicant:

HUDSON TIMBER & HARDWARE LTD

ACN 081 809 814

Respondent: RONALD ANTHONY MUDGE

File No: SZ297 of 2003

Delivered on: 17 June 2003

Delivered at: Sydney

Hearing date: 17 June 2003

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Mr J Johnson

Solicitors for the Applicant: Jones King Lawyers

Solicitors for the Respondent: Ms L Simons as agent
Alroe & O’Sullivans

THE COURT ORDERS THAT

1. A sequestration order be made against the estate of Ronald Anthony Mudge.

2. The petitioning creditor’s costs, including any reserved costs, be paid in accordance with the Bankruptcy Act 1966 (Cth).

The Court notes that the date of bankruptcy is 24 October 2002.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ297 of 2003

HUDSON TIMBER & HARDWARE LTD

ACN 081 809 814

Applicant

And

RONALD ANTHONY MUDGE

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me for ex tempore judgment a creditor's petition in this matter filed on 6 March 2003.  The petition asserts that the respondent debtor, Ronald Mudge, owes the applicant creditor the amount of $53,451.35 due pursuant to a final judgment obtained in the District Court of New South Wales on 30 August 2002.  The petition alleges an act of bankruptcy on 24 October 2002, being failure to comply with a bankruptcy notice served on the respondent debtor on 3 October 2002.

2. The petitioning creditor relies upon affidavits of debt which have been updated today and affidavits verifying the petition and also affidavits of search which have been updated.  In addition, the petitioning creditor relies upon affidavits of service personally upon the debtor both of the bankruptcy notice and the creditor's petition.  The only matter disputed is service of the bankruptcy notice and the creditor’s petition.  Subject to that issue, the petitioning creditor is entitled to receive a sequestration order.

3. The contest between the parties on the issue of service is a simple factual dispute.  The petitioning creditor, relying upon two affidavits by Robert Joseph Donnelly, asserts that the debtor was personally served with the bankruptcy notice on 3 October 2002 and with the creditor’s petition on 3 April 2003.  Mr Mudge, relying upon his own affidavits and affidavits by his partner, Michelle Terese Courtney, asserts that he was not at home on either of these occasions and that the bankruptcy notice and creditor’s petition only came to his attention subsequently when brought to his attention by Ms Courtney.

4. Both Mr Donnelly and Mr Mudge and Ms Courtney were cross examined today on their affidavits.  Both held firm to the accounts they gave of the relevant facts.  Obviously the evidence of either Mr Donnelly or Mr Mudge…