KANG v GOLDSMITH

[2017] FCCA 847

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANG v GOLDSMITH [2017] FCCA 847

Catchwords:
BANKRUPTCY – Application to set aside the bankruptcy notice – service of the bankruptcy notice by email in accordance with reg 16.01 – transmission took place and proof to the contrary not established – application is dismissed.

Legislation:

Bankruptcy Act 1966, ss. 27, 41(6A).

Bankruptcy Regulations 1996, reg. 16.01

Applicant: EDWARD KANG

Respondent: BARRIE GOLDSMITH

File Number: SYG 619 of 2017

Judgment of: Judge Street

Hearing date: 27 April 2017

Date of Last Submission: 27 April 2017

Delivered at: Sydney

Delivered on: 27 April 2017

REPRESENTATION

Counsel for the Applicant: Mr N Allan

Solicitors for the Applicant: Ziman Lawyers

The Respondent appeared in person.

ORDERS

1. Grant leave to the Applicant’s representative to file a notice of address for service in Court and dispenses with the need for the electronic filing of the same.

2. Grant leave to the Applicant to adduce some oral evidence given the late representation by Counsel.

3. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 619 of 2017

EDWARD KANG

Applicant

And

BARRIE GOLDSMITH

Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.27 of the Bankruptcy Act 1966 (Cth) (“the Act”) in respect of a bankruptcy notice issued on 7 February 2017 by the Official Receiver. The application before the Court is an application by the recipient of the bankruptcy notice to set aside the bankruptcy notice and the application required an order purportedly under s.41(6A) of the Act.

2. On the evidence before the Court, the bankruptcy notice was served by email in accordance with reg. 16.01 of the Bankruptcy Regulations 1996 (“the Regulations”) by electronic transmission on 7 February. Under reg. 16.01(2) of the Regulations, the service is taken to have been received by the person in the absence of proof to the contrary when the document was transmitted.

3. Oral evidence was adduced before the Court from the applicant that acknowledged that the email would have been received by his computer on 7 February 2017. The applicant said however, that he did not open the document until 9 February 2017. The applicant filed an affidavit in which he acknowledged receipt of the document, albeit by the wrong means on 7 February 2017. 

4. I do not accept the applicant’s evidence that he did not receive and open and look at the document on 7 February 2017. Further, so far as the rules are concerned, what is required is that transmission has taken place. On the evidence before the Court, I am satisfied transmission has taken place on 7 February 2017 and proof to the contrary has not been established.

5. Accordingly, the applicant was taken to have been served on 7 February 2017 in accordance with reg 16.01(2) of the Regulations. It follows that the act of bankruptcy occurred on 28 February.

6. The proceedings in this Court were commenced on 2 March 2017. The application was not filed within the time. There is no power under s.41(6A) of the Act to extend time as the application has not been brought before the expire of the time fixed. The expiry of the time fixed occurred on 28 February 2017.

7. Accordingly, the current application is misconceived. The application is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 May 2017