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

1. 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.

2. 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.

3. 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.

4. Time for compliance with the notice be amended to 28 days after service.

5. 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

1. 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.

2. It appears that the bankruptcy notice in question has already been delivered to the debtor by way of personal service on 2 July 2013 and there is an affidavit of Mr Ian Hopkins dated 9 July 2013 to that effect. However, that service took place without obtaining leave of the court pursuant to s.40(1)(g). I am satisfied that there is authority for me to grant leave nunc pro tunc pursuant to s.306(1) of the Act and to make the declaration sought: Envee Energy Pty Limited (in liquidation) v Stockford [2007] FMCA 1426;[2]  American Express Australia Limited v Michaels [2010] FMCA 103. But in order to make such a declaration the court would have to be satisfied that there was no prejudice to the debtor in the manner in which the service took place. In this particular case the time for compliance with the bankruptcy notice was stated as the traditional 21 days. But to my mind if an application had been made to this court under s.40(1)(g) the time for compliance with the bankruptcy notice would have been extended past 21 days, probably to about 28 days. In comparison with the situation that pertained in Envee, where the debtor was served in Thailand and then returned almost immediately to Australia, the evidence that I have seen here indicates that Mr Slater is resident in the United Kingdom.

   [2] “Envee”.

3. I anticipate that should I make the orders requested in the application the applicant may well be met with an argument that the bankruptcy notice is invalid because of the fact that not sufficient time was given to the respondent to comply with it.  I therefore think that in all the circumstances the best course of action to take is to make orders in accordance with the alternative orders sought by the applicant in these proceedings.  These provide for service by post of a copy of the bankruptcy notice, amended so as to provide for a 28 day compliance period, together with a copy of the order for substituted service that has been requested.  The service will be effected by sending it to Mr Slater at his address in the United Kingdom and by serving personally his solicitor at Messrs Henry Davis York in Sydney.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  26 August 2013