Mikkelsen, R.W. v Lynch, A - [1991] FCA 608

Bankruptcy - Application for annulment of bankruptcy - whether sequestration order "ought not to have been made" - whether

service of bankruptcy notice and creditors petition made in

accordance with Act and Rules - whether bankruptcy should be

annulled - Barrkruptcy Act 1966 (Commonwealth) s.l54(l)(a)

Re Williams (1968) 13 PLR 10

RONALD WARREN MIKKELSEN v. ADA LYNCH

NB300 of 1990

14 October 1991

Sweeney J

Sydney

IN THE FEDERAL COTIRT OF AUSTRALIA )

1

GENERAL DIVISION 1
1
BANKRUPTCY DISTRICT OF THE STATE

) No.NB300 of 1990
1
OF NEW SOUTH WALES 1

RE : RONALD WARREN MIKKBLSEN Applicant
AND : ADA LYNCH Respondent
THE COURT : Sweeney J
PLACE Sydney
DATE 14 October 1991

MINUTES OF ORDER

THE COURT ORDERS THAT:

Bankruptcy of applicant is annulled.

2. Respondent to pay the costs of the applicant of and incidental to the application, such costs to be taxed, if not agreed.

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

GENERAL DIVISION i
)
BANKRUPTCY DISTRICT OF THE STATE )
1
OF NEW SOUTH WALES 1

R O W WARREN MIKKELSEN Applicant

AND : ADA LYNCH Respondent

THE COURT : Sweeney J
PLACE Sydney
DATE
- 14 October 1991

By an application filed on 15 May 1991 Ronald Warren

Mikkelsen ("the applicant") asks that an order of

annulled on the ground that the Bankruptcy Petition was not sequestration made against him on 13 February 1991 "be served" on him and that "the Bankruptcy Notice filed herein be
set aside on the ground that it was not served" on him.

On 13 October 1991 Registrar Sexton had before her an affidavit in which Lorraine Margaret Dunn, licensed commercial agent deposed that on 12 July at 10.10 a.m. she served the applicant with a copy of the bankruptcy notice "by delivering it to him personally at 'Far East' Fruit Shop, Jonson Street, Byron Bay" and that she identified the person served by reason of the fact that at the time of service she asked him "Are you Ronald Mikkelsen the person referred to in this Bankruptcy Notice?" and he replied "Yes". The bankruptcy notice was based upon a default judgment obtained in the District Court at Sydney on 17 February 1989.

The Registrar also had before her a further affidavit by the licensed commercial agent, in which she deposed that she served the applicant with an official copy of the bankruptcy petition, together with the copies of the affidavits in support and the consent to act of the proposed trustee Richard Campbell Brien, "by delivering the same to him" at the Far East Fruit Shop at about 11.40 a.m. She deposed that she identified the applicant by asking him:

"Are you the Ronald Mikkelsen referred to in the
Petition?" to which he replied "Yes".

The sole act of bankruptcy relied upon in the petition was that the applicant failed on or before 2 August 1990 either to comply with the requirements of the bankruptcy notice…

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: [1991] FCA 608
Decision Date: 14 Oct 1991

CaseChat Overview and Summary

Ronald Warren Mikkelsen applied to the Federal Court of Australia to have his bankruptcy annulled on the grounds that the Bankruptcy Notice and the Creditors Petition were not properly served on him. The application was heard by Sweeney J in the Bankruptcy District of New South Wales. The central legal issue was whether the service of the bankruptcy notice and the creditors petition complied with the Bankruptcy Act 1966 and the relevant rules, and if not, whether the bankruptcy should be annulled under s.154(1)(a) of the Act.

Sweeney J found that the evidence of the applicant and his mother was credible and truthful, while the evidence of Ms Dunn, the person who claimed to have served the documents, was not. The court accepted that neither the bankruptcy notice nor the creditors petition was served on the applicant as required by the Act. Consequently, the court was satisfied that the sequestration order ought not to have been made and exercised its discretion to annul the bankruptcy. The court also ordered the respondent to pay the applicant's costs of and incidental to the application.

The final orders of the court were that the bankruptcy of Ronald Warren Mikkelsen is annulled, and the respondent is ordered to pay the costs of the applicant of and incidental to the application, such costs to be taxed, if not agreed.

Orders