Michael Wilson and Partners Limited v Slater - [2013] FCCA 1201

FEDERAL CIRCUIT COURT OF AUSTRALIA

MICHAEL WILSON & PARTNERS LIMITED v SLATER

[2013] FCCA 1201

Catchwords:

BANKRUPTCY – Application for leave to serve bankruptcy notice outside of Australia – where bankruptcy notice previously served on respondent without leave of court – where bankruptcy notice stated time for compliance 21 days – whether prejudice to respondent – whether to grant leave nunc pro tunc – whether to make declaration that bankruptcy notice correctly served – whether to grant leave to serve amended bankruptcy notice overseas.

Legislation:

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 306(1)

Envee Energy Pty Limited (in liquidation) v Stockford [2007] FMCA 1426

American Express Australia Limited v Michaels [2010] FMCA 103

Applicant:

MICHAEL WILSON & PARTNERS LIMITED

Respondent:

DAVID ROSS SLATER

File Number:

SYG 1405 of 2013

Judgment of:

Judge Raphael

Hearing date:

12 August 2013

Date of Last Submission:

12 August 2013

Delivered at:

Sydney

Delivered on:

12 August 2013

REPRESENTATION

Solicitors for the Applicant:

Slater & Gordon

For the Respondent:

No appearance

ORDERS

Pursuant to s.40(1)(g) of the Bankruptcy Act 1966 (Cth), the Applicant be granted leave to serve Bankruptcy Notice no 161655 of 2013 addressed to David Ross Slater outside of Australia.
Pursuant to s.309(2) of the Bankruptcy Act 1966 (Cth), service of Bankruptcy Notice no 161655 of 2013 addressed to David Ross Slater be served by:
(a)Sending the notice and a copy of this order by prepaid post addressed to David Ross Slater at 153 Warren Road, Chesterfield, Orpington, London, Kent BR66ES, United Kingdom;
(b)By personal service on Mr Stephen Gorry of the notice and this order at Henry Davis York, 44 Martin Place, Sydney NSW 2000.Orders Style.
Service of Bankruptcy Notice no 161655 of 2013 be deemed good and sufficient service of the said Bankruptcy Notice seven days after service in accordance with orders 2a and, 2b, whichever is the later.
Time for compliance with the notice be amended to 28 days after service.
Costs be reserved.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1405 of 2013

MICHAEL WILSON & PARTNERS LIMITED

Applicant

And

DAVID ROSS SLATER

Respondent

REASONS FOR JUDGMENT

There comes before me today an application pursuant to s.40(1)(g) of the Bankruptcy Act 1966 (Cth)[1] that the applicant be granted leave to serve bankruptcy notice 161655 of 2013 addressed to David Ross Slater outside of Australia, and pursuant to s.306(1) of the Act that the applicant be granted leave nunc pro tunc to serve the bankruptcy notice outside of Australia on the respondent in the United Kingdom and for a declaration that the service of the bankruptcy notice was properly effected on the respondent on 2 July 2013. There is also a request for alternative orders in the nature of substituted service on the debtor of the bankruptcy notice in the United Kingdom and through a person who has acted as his solicitor in relation to associated matters for some considerable time.
[1] The Act.
It appears that the bankruptcy notice in question has already been delivered to the debtor by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 1201
Decision Date: 12 August 2013

CaseChat Overview and Summary

Michael Wilson and Partners Limited (the applicant) sought leave from the Federal Court of Australia to serve a bankruptcy notice on the respondent, Mr. Slater, outside of Australia. This application followed an earlier attempt to serve a bankruptcy notice on the respondent within Australia, which had been served without the court's leave and stipulated a 21-day compliance period. The applicant sought to regularise this service, requesting leave *nunc pro tunc* (retrospectively) or leave to serve an amended bankruptcy notice overseas.

The primary legal issues before the Court were whether to grant leave to serve the bankruptcy notice outside of Australia, either retrospectively or prospectively, and whether the initial service within Australia was valid despite lacking prior leave. The Court also considered whether the respondent would suffer prejudice from the granting of such leave and whether a declaration should be made that the bankruptcy notice had been correctly served.

Judge Raphael considered the principles governing the service of bankruptcy notices, particularly the requirement for leave to serve outside of Australia under the *Bankruptcy Act 1966* (Cth). The Court noted that while service within Australia generally does not require leave, service outside of Australia does. The judge found that the initial service within Australia was defective as it was served on a person who was not an Australian resident and therefore required leave. The Court also considered the prejudice to the respondent, noting that the 21-day compliance period was shorter than the standard 21 days plus time for service outside Australia. Ultimately, the Court determined that it had the power to grant leave *nunc pro tunc* and that it was appropriate to do so in these circumstances, as the respondent had not been prejudiced. The Court also granted leave to serve an amended bankruptcy notice overseas.

Orders