Mineo v Etna - [2008] FMCA 1676

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MINEO v ETNA

[2008] FMCA 1676

BANKRUPTCY – Whether original or copy of Bankruptcy notice served.

Bankruptcy Act 1966 (Cth)

Re DeIeso (1978) 24 ALR 701

Applicant:

GIUSEPPE MINEO

Respondent:

ENZA ETNA

File Number:

MLG 400 of 2008

Judgment of:

Phipps FM

Hearing date:

27 October 2008

Date of Last Submission:

27 October 2008

Delivered at:

Melbourne

Delivered on:

27 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr Goldsmith

Solicitors for the Applicant:

Goldsmiths Lawyers

Counsel for the Respondent:

Mr A. Mansour

Solicitors for the Respondent:

Voitin Lawyers

ORDERS

The Application for Review filed on 1 August 2008 is dismissed.
The Respondent Creditors costs of and incidental to the Application for Review, including reserved costs be taxed pursuant to Order 62 of the Federal Court Rules and paid in accordance with the statute.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 400 of 2008

GIUSEPPE MINEO

Applicant

And

ENZA ETNA

Respondent

REASONS FOR JUDGMENT

The debtor in this case, Mr Giuseppe Mineo, was made bankrupt by sequestration order made by Registrar Luxton on 15 July 2008. The issue on the review is whether the document which was served on the debtor was an original or photocopy of a bankruptcy notice. If it was a photocopy, then one of the requirements for an act of bankruptcy in this case has not been met.
Evidence has been given by Mr Mansour, the solicitor for the creditor, and by the debtor himself, Mr Mineo. The document was served by Mr Mansour. It is common ground between Mr Mansour and Mr Mineo that it, with an accompanying letter, was handed to Mr Mineo on 1 October 2007 at Voitin Lawyers, the solicitors for the creditor who employ Mr Mansour.
Mr Mineo acknowledges that he had had many conversations and meetings with Mr Mansour in which he had made promises to pay the debt, the subject matter of the bankruptcy notice. It is a debt of some $80,000 including interest and costs obtained in the Magistrates Court of Victoria at Melbourne on 14 August 2007. Mr Mineo also says that for personal reasons he had requested Mr Mansour serve all documents on him at Voitin Lawyers office. Subsequent to the document being handed to him he acknowledges that he had promised to pay the money. He acknowledges that he had more than one conversation with Mr Mansour where Mr Mansour said there would be a bankruptcy petition issued if the money was not paid. There were several adjournments of the hearing of the bankruptcy application, again so that Mr Mineo could have the opportunity to pay the money. That did not happen.
Mr Mineo, it would seem subsequent to the sequestration order being made, consulted a solicitor, Mr Goldsmith. Mr Mineo says that he gave his whole file which had all the documents, all the affidavits, all the correspondence about the whole proceeding to Mr Goldsmith. I assume the debt proceedings as well as the bankruptcy proceedings. He gave them to Mr Goldsmith. Mr Mineo says the copy of the bankruptcy notice, which was in that file, was a photocopy. He has sworn an affidavit in which he annexes the letter dated 1 October 2007 from Voitin Lawyers and the document which he says he received. That document, annexed to the affidavit is clearly a photocopy. That is common ground.
Mr Mansour swore a straightforward affidavit of service for the purpose of the creditors' petition which the registrar acted upon. Mr Mansour says first that he is familiar with bankruptcy proceedings and he is familiar with the process. He said the insolvency trustee, when issuing the bankruptcy notice, signs and stamps or signs and seals three copies; one stays with ITSA, two go with the solicitor, in this case him. He says he gave the letter and the bankruptcy notice to Mr Mineo. He says he has no recollection of taking the original bankruptcy notice from the file as the one which he handed to Mr Mineo. He says at that stage there must have been two copies of the bankruptcy notice on the file, no reason to make a photocopy at that stage and no photocopy on the file. He says his file now, which he has produced, has one original left on it. It does have a photocopy of the bankruptcy notice but he said in his evidence-in-chief that at the time of service of the bankruptcy notice on Mr Mineo no photocopies had been made. There was no need to make photocopies. Subsequent to that time photocopies would have been made because they were needed for the bankruptcy petition documents and affidavits of service associated with the bankruptcy petition.
Both witnesses are giving evidence of their recollection of something which occurred a little over 12 months ago. Both are relying on now what is contained within their files. Mr Mineo's evidence is really this: he says, everything I received I put into the file. This is the only copy of a bankruptcy notice that is on that file and it's a photocopy. It must have been the one served on me. That is a fair summary of Mr Mineo's evidence.
Mr Mansour's evidence is this: that again, he does not state, in fact he says quite clearly he does not have a specific recollection of the document he served being an original bankruptcy notice, one of the ones which had been dated and signed and stamped by the insolvency trustee service. He says there is now only one original copy on the file. The only destination for the other original copy must have been by being handed to Mr Mineo.
Mr Mineo did consult one other solicitor. He said that that was to have an affidavit prepared. This was done on the morning of one of the court dates or hearing dates for the creditors' petition. He said that solicitor asked only for a copy of the creditors' petition. He did not give him the bankruptcy notice.
This is a rehearing of the creditors' petition. The onus of proving the matters which must be satisfied for a sequestration order to be made is on the applicant. That includes proof of service of the bankruptcy notice. The onus here is on the petitioning creditor. It is then a question, on the balance of probabilities, what finding do I make? Was the document an original or was it a copy?
Neither witness has a specific recollection of the document being either a photocopy or an original at the time of service. One other difference in the evidence is that Mr Mansour says that the letter and the bankruptcy notice were not in an envelope. Mr Mineo says they were in an envelope. Mr Goldsmith, who appears for Mr Mineo, points to the documents annexed to Mr Mineo's affidavits as showing creases in them consistent with having been folded and placed in an envelope.
In a case where it is the evidence of one witness against the evidence of another, but particularly in this case where both say they do not have a specific recollection of the key issue, that is, the nature of the document at the point it was handed over, I need to look at external matters which might point to where the probabilities are. The applicant, Mr Mansour, points to the fact that his file now only has one original document on it. The only explanation for the whereabouts of the other document is that it has been handed to Mr Mineo. The other factor which supports the applicant's case, the creditor's case, is that this was a solicitor who is experienced in bankruptcy matters who should understand the significance of the two original documents that he had on his file, that one of them had to go to the debtor.
On the other hand, Mr Mineo did not understand the significance of whether this was an original or a photocopy until, it would seem, recently when he eventually consulted solicitors who looked at the matter in a comprehensive manner. So Mr Mineo's attention was not turned to the nature of this document until many months after he had actually received it.
When I weigh all those matters up, the probabilities come down in favour of the creditor, that is, that what was handed to the debtor was an original bankruptcy notice. The matters I have pointed to, what might be called the independent matters, aside from parties' recollections, point that way.
The missing original of the bankruptcy notice must have gone somewhere. The probabilities are that it was taken out of the file by Mr Mansour and handed to Mr Mineo on the date of service, 7 October 2007.
Rogerson J in Re DeIeso (1978) 24 ALR 701 held that a bankruptcy notice is not a bankruptcy notice for the purpose of service. It has to be the original.
I have found that on the balance of probabilities the document which was served was the original. The application for review is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Jan Smith

Date: 15 December 2008