Love v Pattison

[1998] FCA 967

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY – sequestration order – appeal - appellant unrepresented at trial – whether right to representation – whether appellant had cause of action against respondent for damages greater than the amount of the judgment debt – finding of fact by trial judge concerning service of bankruptcy notice – when finding of fact should be overturned on appeal

Bankruptcy Act 1966 (Cth) s 52(2)

Brunskill v Sovereign Marine and General Insurance Co Pty Ltd (1985) 59 ALJR 842 mentioned
Devries v Australian National Railways Commission (1993) 177 CLR 472 followed
Ling v Enrobrook Pty Ltd (1997) 74 FCR 19 mentioned
Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111 mentioned

PAUL JAMES LOVE v PAUL PATTISON (AS TRUSTEE OF THE BANKRUPT ESTATE OF PAUL JAMES LOVE) and PYRAMID BUILDING SOCIETY (IN LIQUIDATION)
VG 395 of 1997

BRANSON, SACKVILLE & FINKELSTEIN JJ
MELBOURNE
24 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 395 of 1997

BETWEEN:	PAUL JAMES LOVE Appellant
AND:	PAUL PATTISON (AS TRUSTEE OF THE BANKRUPT ESTATE OF PAUL JAMES LOVE) and PYRAMID BUILDING SOCIETY (IN LIQUIDATION) Respondents
JUDGES:		BRANSON, SACKVILLE & FINKELSTEIN JJ
DATE OF ORDER:		24 JULY 1998
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 395 of 1997

BETWEEN:	PAUL JAMES LOVE Appellant
AND:	PAUL PATTISON (AS TRUSTEE OF THE BANKRUPT ESTATE OF PAUL JAMES LOVE) and PYRAMID BUILDING SOCIETY (IN LIQUIDATION) Respondents

JUDGES:	BRANSON, SACKVILLE & FINKELSTEIN JJ
DATE:	24 JULY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT (EX TEMPORE)

THE COURT:  This is an appeal from an order of the Court constituted by Heerey J that the estate of the appellant be sequestrated.  The petition which founded the order was based upon the failure by the appellant to comply with a bankruptcy notice said to have been served in accordance with an order for substituted service made by a registrar of the Court.  The order required service of the bankruptcy notice to be effected by posting a copy of the notice and a copy of the order for substituted service to the appellant at 10 Taylor Court, Highton and by handing a letter addressed to the appellant containing a copy of the bankruptcy notice and a copy of the order to a person apparently over the age of 16 years and apparently residing at that address.

The respondent had obtained a judgment against the appellant in the Supreme Court of Victoria in the amount of $1,014,682.19 together with costs.  The bankruptcy notice required the appellant to pay or secure the payment of the judgment debt but the appellant failed to do so.  Hence the respondent presented its petition. 

At the hearing below the appellant opposed the making of the sequestration order on two grounds.  First it was alleged that service of the bankruptcy notice had…