Michael Wilson and Partners Limited v Slater

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.