Modular Nominees Pty Ltd v Berrached

[1999] FCA 237

FEDERAL COURT OF AUSTRALIA

Modular Nominees Pty Ltd v Berrached [1999] FCA 237

BANKRUPTCY- application for substituted service outside jurisdiction – application annexing draft bankruptcy notice – whether requirement to annex actual notice can be dispensed with – whether impractical to serve document in manner set out in Federal Court Rules.

Bankruptcy Regulations (1966) reg16.01
Bankruptcy Rules O 77 r 12
Federal Court Rules O 1 r 8, 0 7 r 9

MODULAR NOMINEES PTY LTD V GHASSANE SALEM BERRACHED
W 7002 of 1999

R D NICHOLSON J
10 FEBRUARY 1999
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 7002 OF 1999

BETWEEN:	MODULAR NOMINEES PTY LTD Applicant
AND:	GHASSANE SALEM BERRACHED Respondent
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	10 FEBRUARY 1999
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.Personal service, and service pursuant to Regulation 16.01 of the Bankruptcy Regulations, of the Bankruptcy Notice issued on 20 January 1999 on the debtor respondent be dispensed with.

2.Service of a copy of the Bankruptcy Notice issued on 20 January 1999 and a copy of the order of this Court granting leave for substituted service duly sealed with the seal of this Court be served on the debtor respondent by sending them by pre-paid ordinary post addressed to the debtor respondent’s solicitor on the record in action number 24878of 1997 in the Local Court, Perth in the State of Western Australia.

3.Pursuant to Order 1 rule 8 of the Federal Court Rules, strict compliance of Order 77 rule 12(2) of the Rules by the applicant be dispensed with.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 7002 OF 1999

BETWEEN:	MODULAR NOMINEES PTY LTD Applicant
AND:	GHASSANE SALEM BERRACHED Respondent

JUDGE:	R D NICHOLSON J
DATE:	10 FEBRUARY 1999
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for substituted service of a bankruptcy notice.

2. The affidavits filed in support of the application disclose the following position.  On 27 November 1998 the applicant obtained judgment by consent against the respondent in action number 24878 of 1997 in the Local Court, Perth, Western Australia.  The solicitors representing the respondent in the action were Fiocco, Hopkins, Nash.

3. The respondent, who is the person sought to be served by way of substituted service with the bankruptcy notice, resides overseas.  Although inquiries and correspondence addressed to the abovementioned solicitors have sought the address of the respondent, this has not been forthcoming.  The respondent, so it is said by the solicitors, resides in the United Emirates.  The solicitors themselves had experienced some difficulty in contacting him, although contact was made and on 28 November 1998 the solicitors advised the applicant’s solicitors that the respondent was instructing them.

4. The affidavit evidence also discloses that the respondent has sold the property in which he formerly resided and owns no other land in Western Australia

5. The factual position is, therefore, that the respondent cannot personally be served with a bankruptcy notice as the applicant has no means of discovering his whereabouts.

6. To that point, the matter is entirely routine.  The only element of novelty arises from the following circumstances.  The application was lodged on 6 January 1999.  It annexed a copy of the proposed bankruptcy notice.  The bankruptcy notice was in fact issued on 20 January 1999.

7. Order 77 r 12 of the Bankruptcy Rules provides, firstly, that an application for an order for substituted service of a bankruptcy notice must be made by filing an application in accordance with form 5.  I am satisfied that the application is in accordance with that form.

8. Subrule 12(2) provides that the application must be accompanied by a copy of the bankruptcy notice and an affidavit stating the grounds in support of the application.  While an affidavit was filed with the application it was the case, as has already appeared, that the bankruptcy notice did not accompany the application.  What accompanied the application was the draft of the proposed bankruptcy notice.

9. It is open to argument that the use of the word "must" in subr 12(2) is a mandatory condition which must be satisfied by the attachment of the actual bankruptcy notice to the application and that, upon failure to so comply with that requirement, a court does not have power to make an order in terms of the application.

10. In my opinion such an argument cannot succeed.  Order 77 r 4(2) provides that the other orders of the Federal Court Rules apply so far as they are relevant and not inconsistent with O 77 and that they apply to a proceeding in the court to which the Bankruptcy Act (1966) (Cth) applies.

11. Order 1 r 8 of the Federal Court Rules provides that the court may dispense with compliance with any of the requirements of the Rules either before or after the occasion for compliance arises.  The “Rules” referred to in that Rule are the Federal Court Rules: see O 1 r 4.  Therefore O 1 r 8 is applicable to O 77 and hence to the provisions of O 77 r 12(2), there being no inconsistency preventing such application.

12. In my opinion, the requirement for the bankruptcy notice to accompany the application in this particular matter as required by O 77 r 12(2) should be dispensed with on the basis that the notice is identified in affidavit evidence and now accompanies the application, that is before the order for substituted service is made.

13. The provisions of O 77 not themselves further providing in respect of substituted service, it is consequently appropriate to revert to the provisions of O 7 r 9.  I have on earlier occasions held that the requirement in that Rule that it be impractical to serve a document in the manner set out in the Rules is applicable to the requirements of O 8 dealing with service outside the jurisdiction.  See:  Swan Brewery Co Ltd v Attlee ( 27 February 1998, unreported); Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd & Ors ( 14 July 1998, unreported).  It is apparent from the facts as I have found them from the affidavit evidence that the condition of impracticality is satisfied.  It is therefore open to the Court, in accordance with O 7 r 9, to order that such steps be taken as are specified for the purpose of bringing the document to the notice of the person to be served.

14. Orders will be made accordingly.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON.

Associate:

Dated:             15 March 1999

Counsel for the Applicant:	Mr M C Hotchkin
Solicitor for the Applicant:	Hotchkin Healy
Counsel for the Respondent:	No appearance
Solicitor for the Respondent:	None on record
Date of Hearing:	10 February 1999
Date of Judgment:	10 February 1999