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Moss v Gorrie

Moss v Gorrie

Case [2013] FCCA 1393 19 September 2013

Jurisdiction

Statutory Construction

Abuse of Process

Insolvency

Civil Procedure

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MOSS v GORRIE

[2013] FCCA 1393

Catchwords:
BANKRUPTCY – Substituted service of creditors petition – service outside of Australia – whether respondent carrying on business in Australia at the time of act of bankruptcy.

WORDS AND PHRASES – “carrying on business in Australia”.

Legislation:

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 43(1)(b)(i), (ii), (iii) & (iv), 44(1)
Bankruptcy Regulations 1996 (Cth), regs.16.01(e)(ii) and (2)(b)

Ample Source International Ltd (BVICN 1575638) v Bonython Metals Group Pty Ltd (ACN 141 257 294) & Ors (No. 6) (2011) 285 ALR 488; [2011] FCA 1484

Commonwealth Bank of Australia v Oswal [2012] FMCA 1082

Deputy Commissioner of Taxation v Cranswick (2010) 80 ATR 88; [2010] FCA 891

Londish & Ors v Gulf Pacific Pty Limited (1993) 45 FCR 128

Napiat Pty Ltd v Salfinger (No. 7) (2011) 9 ABC(NS) 485; [2011] FCA 1322

NT Power Generation Pty Ltd v Power and Water Authority & Anor (2004) 219 CLR 90; [2004] HCA 48

Re Allen; Ex pare Shaw [1915] 1 KB 285
Re Bird; Ex parte the Debtor v Inland Revenue Commissioners & Ors [1962] 2 All ER 406
Re Dagnall; Ex parte Soan & Morley [1896] 2 QB 407
Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256
Re Reynolds, Ex parte White Bros Ltd [1915] 2 KB 186
Re Vassis; Ex parte Leung (1986) 9 FCR 518
Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for the Sustainability, Environment, Water, Population and Communities [2013] FCA 782
Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107; [2004] FCAFC 321
Theophile v The Solicitor-General [1950] 1 All ER 405
Turner v Trevorrow & Anor (1994) 49 FCR 566
Westpac Banking Corporation v Faress [2011] FMCA 26

Applicant:

GEOFFREY JOEL MOSS

Respondent:

GEOFFREY GORRIE

File Number:

PEG 235 of 2012

Judgment of:

Judge Lucev

Hearing date:

18 September 2013

Date of Last Submission:

18 September 2013

Delivered at:

Perth

Delivered on:

19 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr B Grubb

Solicitors for the Applicant:

Metaxas & Hager

For the Respondent:

No appearance

ORDERS

That the applicant’s interim application filed 29 August 2013 be dismissed.
There be no order as to costs.
That the Further Affidavit of Bruce Graeme Grubb sworn 18 September 2013 be removed from the Court record and returned to the applicant’s solicitors.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 235 of 2012

GEOFFREY JOEL MOSS

Applicant

And

GEOFFREY GORRIE

Respondent

REASONS FOR JUDGMENT

Introduction – the application and background circumstances

This is an application which seeks substituted service on the respondent, Mr Gorrie, by the applicant, Mr Moss, of a creditors petition.
At hearing four affidavits were relied upon by Mr Moss, namely:
a)the affidavit of Christina Trpcevski, sworn 4 October 2012;[1]
b)the affidavit of Christina Trpcevski, sworn 26 October 2012;[2]
c)the affidavit of Bruce Graeme Grubb, sworn 29 August 2013;[3] and
d)the further affidavit of Bruce Graeme Grubb, sworn 30 August 2013.[4]
[1] “First Trpcevski Affidavit”.
[2] “Second…

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.

Continue reading Moss v Gorrie

Details

AGLC: Moss v Gorrie [2013] FCCA 1393
Case: [2013] FCCA 1393
Decision Date: 19 September 2013

CaseChat Overview and Summary

In *Moss v Gorrie*, the Federal Court of Australia considered an application by the applicant, Mr. Moss, for substituted service of a creditors petition on the respondent, Mr. Gorrie. The core of the dispute concerned whether Mr. Gorrie was carrying on business in Australia at the time of the alleged act of bankruptcy, which was a prerequisite for the court to exercise jurisdiction over him in relation to the petition.

The primary legal issue before the court was whether substituted service of the creditors petition should be permitted, and in particular, whether the court had jurisdiction to make such an order given the respondent's alleged absence from Australia. This hinged on the interpretation of "carrying on business in Australia" within the context of the *Bankruptcy Act 1966* (Cth) and the rules governing service of process, especially when service was sought outside of Australia.

Judge Lucev reasoned that the test for "carrying on business in Australia" requires an examination of the respondent's activities within Australia, not merely their domicile or residence. The court found that the evidence presented did not establish that Mr. Gorrie was carrying on business in Australia at the relevant time. Consequently, the court lacked jurisdiction to make an order for substituted service of the creditors petition, as the foundational requirement of the respondent carrying on business in Australia had not been met.

The application for substituted service was therefore dismissed.

Orders