Noonan v BMW Australia Finance Limited
[2013] FCCA 2222
•20 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NOONAN v BMW AUSTRALIA FINANCE LIMITED | [2013] FCCA 2222 |
| Catchwords: BANKRUPTCY – Application for review of Registrar’s decision to make a sequestration order – application for adjournment of proceedings refused – service of Bankruptcy Notice on Applicant’s solicitor by email – held to be effective service on the Applicant – sequestration order affirmed. |
| Legislation: Bankruptcy Act 1966, s.306(1) Bankruptcy Regulations 1996, Reg.16.01 |
| American Express Australia Ltd v Michaels (2010) 237 FLR 268 Australia and New Zealand Banking Group Limited v Hubner [1999] FCA 1346 Civic Video Pty Ltd v Warburton [2013] FCA 934 Drake v Stanton [1999] FCA 1635 Magafas v Carantinos (2008) 222 FLR 185 Marshall & Anor v Clarke & Ors (2003) 180 FLR 297 Mulherin v Quinn Villages Pty Ltd (2012) 269 FLR 474 Napiat Pty Ltd v Salfinger; Re Salfinger (No 7) (2011) 284 ALR 581 Robertson v Banham & Co [1997] 1 WLR 446 Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107 T & S Recoveries Pty Ltd v Skalkos [2004] FCA 816 Troy and Company v Cameron [2002] FMCA 42 |
| Applicant: | LEONIE FRANCIS NOONAN |
| Respondent: | BMW AUSTRALIA FINANCE LIMITED ACN 007 101 715 |
| File Number: | MLG 101 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 21 November 2013 |
| Date of Last Submission: | 21 November 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Minahan (adjournment application only) |
| Solicitors for the Applicant: | James D Mapleston |
| Counsel for the Respondent: | Ms Hamill |
| Solicitors for the Respondent: | Thomsons Lawyers |
ORDERS
The application for an adjournment made by the Applicant is denied.
The Applicant’s solicitor be given leave to withdraw from the proceedings.
The Application for Review filed 19 July 2013 is dismissed.
The Sequestration Order made by Registrar Hetyey on 2 July 2013 is affirmed.
The Applicant pay the Respondent’s costs as agreed or otherwise as taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 101 of 2013
| LEONIE FRANCIS NOONAN |
Applicant
And
| BMW AUSTRALIA FINANCE LIMITED ACN 007 101 715 |
Respondent
REASONS FOR JUDGMENT
This matter concerns an application for review (“the application”) filed by Mr JAMES MAPLESTON (“Mr Mapleston”), the solicitor for the Applicant in these proceedings, Ms LEONIE FRANCIS NOONAN (“Ms Noonan”), on 19 July 2013. The application seeks “That the Respondent’s Creditors (sic) Petition be dismissed with an order for costs”.[1] The affidavit sworn/affirmed by Mr Mapleston in support of the application states:
[1] Application for Review filed 19 July 2013.
1. The Applicant seeks a review of the decision of
Registrar Hetyey made 2 July 2013 because he erred in law with respect to the following matters.
(a)He should have allowed the Applicant’s request for an adjournment on the basis that she required more time to make inquiries concerning the alleged postage of the Bankruptcy Notice to her at her East Melbourne address.
(b)He had no reasonable basis to come to a finding that the Applicant had been put on notice of the service of the Bankruptcy Notice on her by reason of that document being sent by email to her solicitor James D. Mapleston.
(c)He should have allowed the Applicant’s request for an adjournment so that inquiries could be made of the Applicant’s mother concerning the allegation that she advised the respondent’s process server she was authorized to advise of the Applicant’s Adress (sic).[2]
[2] Affidavit of James David Mapleston filed 19 July 2013.
On 30 May 2013, Registrar Hetyey adjourned the hearing of the Creditor’s Petition[3] set down for that date and directed Ms Noonan
(the Respondent Debtor in the substantive proceedings) to file and serve any further affidavit material on which she relied by
20 June 2013.[4] BMW Australia Finance Limited, the Applicant Petitioning Creditor in the substantive proceedings and the Respondent in these proceedings (“the Respondent”), was to file and serve in reply by 27 June 2013 and the matter was then set down for hearing on
2 July 2013.[5] Ms Noonan lodged one affidavit, that of her Husband,
Mr PHILLIPE BARROS (“Mr Barros”), on 1 July 2013.[6] An affidavit of Ms JESSICA BEVACQUA (“Ms Bevacqua”), solicitor for the Respondent, was lodged the same day.[7]
[3] Creditor’s Petition filed 25 January 2013.
[4] Order made 30 May 2013.
[5] Ibid.
[6] Affidavit of Phillipe Barros filed 1 July 2013.
[7] Affidavit of Jessica Bevacqua filed 1 July 2013.
On 2 July 2013, Ms Noonan lodged an Outline of Submission[8] in relation to the issue of service of the Bankruptcy Notice. Having heard from the parties, Registrar Hetyey made a Sequestration Order against the estate of Ms Noonan and found that the date of the act of bankruptcy was 19 October 2012.[9]
[8] Respondent’s Outline of Submission filed 2 July 2013.
[9] Sequestration Order made 2 July 2013.
On 19 September 2013, this Court made directions for the filing of affidavits by Ms Noonan in support of this application by
10 October 2013 and the filing of affidavits in response by
31 October 2013.[10] On 24 October 2013, the parties were advised that the matter would be heard on 21 November 2013.[11]
[10] Order made 19 September 2013.
[11] Correspondence dated 24 October 2013 from the Federal Circuit Court to the parties.
No affidavit material was lodged by the ordered dates. On
18 November 2013, Ms Bevacqua lodged an affidavit on behalf of the Respondent.[12] On 21 November 2013, Ms Noonan filed two affidavits in Court,[13] and sought that the matter be adjourned to a further date. Upon the application for adjournment being denied, Ms Noonan’s legal representatives, Mr Mapleston and Mr SIMON MINAHAN of Counsel, sought leave to withdraw, which was granted.
[12] Affidavit of Jessica Bevacqua filed 18 November 2013.
[13] Affidavit of David Jaffe filed 21 November 2013; Affidavit of Phillipe Barros filed 21 November 2013.
History of the proceedings
The Respondent has provided the Court with a chronology of events with respect to the proceedings, with reference to the affidavit material from which it is derived.[14] In order to understand the competing propositions put by the parties, it is necessary to look at some of that history.
[14] Chronology handed to the Court by the Respondent on 21 November 2013.
On 7 August 2009, a writ and statement of claim was issued by the Respondent in the County Court against Ms Noonan. It was served on Ms Noonan’s then-solicitors, LIBERTY LEGAL, on 21 May 2010 and default judgment was entered on 15 November 2010. The first Bankruptcy Notice was issued on 17 December 2010. Attempts were made to serve the Bankruptcy Notice at:
·941 Old Calder Highway, Keilor (the last address known to the Respondent) (“the Keilor address”);
·Suite 7, 412 Toorak Road, Toorak (the address held by ASIC for Ms Noonan as a director of two companies) (“the Toorak Road address”); and
·20 Steane Street, Bendigo (the address of Ms Noonan as director of two other companies) (“the Steane Street address”).
The Steane Street address was found to be the address of Ms Noonan’s mother.
On 5 May 2011, an order for substituted service was made for the service of the Bankruptcy Notice at the Steane Street and Toorak Road addresses. On 27 June 2011, a Notice of Appearance was made by GADENS LAWYERS on behalf of Ms Noonan, giving her address as
‘941 Old Calder Highway, Keilor’.[15] On 29 June 2011, an affidavit was lodged by Ms Noonan giving her address as ‘Apartment 601,
279 Wellington Parade South, East Melbourne’ (“the East Melbourne address”).[16] Affidavits filed in the County Court gave the same address.
[15] Affidavit of Jessica Bevacqua filed 18 November 2013, at Annexure “JB-A4”.
[16] Affidavit of Jessica Bevacqua filed 1 July 2013, at Annexure “JB-1”.
On 11 August 2011, the County Court judgment was set aside. Default judgment was again entered in the County Court on 23 February 2012. On 19 March 2012, a second Bankruptcy Notice, incorrectly naming the earlier County Court judgment, was issued by the Respondent. Attempts were made to serve this Bankruptcy Notice at both the
Steane Street and East Melbourne addresses. On 20 July 2012, substituted service orders were made for service by both post and hand to the Steane Street and East Melbourne addresses. Substituted service was effected by hand at the East Melbourne address on 28 July 2012 and by hand at the Steane Street address on 30 July 2012.
On 3 September 2012, the Respondent’s solicitors,
THOMSONS LAWYERS, received a letter via email from
Mr Mapleston. The letter stated that Mr Mapleston acted for
Ms Noonan with respect to the Bankruptcy Notice “dated 19 March 2012 served on my client on 17 August 2012”.[17] The letter gave notice that an application would be made to have the Bankruptcy Notice set aside.
[17] Ibid, at Annexure “JB-3”.
On 17 September 2012, the current Bankruptcy Notice was issued
(“the Notice”). A ‘without prejudice’ letter, enclosing a copy of the Notice, was sent by email to Mr Mapleston. On 28 September 2012,
Ms AMANDA MARYLYNE CAMILLERI (“Ms Camilleri”), a legal secretary in the employ of Thomsons Lawyers, sent a copy of the Notice by prepaid post to Ms Noonan at ‘Unit 601,
279 Wellington Parade South, East Melbourne 3002’ and emailed the Notice to Mr Mapleston.[18] On 5 October 2012, Mr Mapleston wrote to Thomsons Lawyers disputing that the service of the Notice by post was effective.[19] On 11 October 2012, Thomsons Lawyers wrote to
Mr Mapleston, drawing his attention to the provisions of Reg.16.01 of the Bankruptcy Regulations 1996 (“the Regulations”).[20]
[18] Affidavit of Amanda Marylyne Camilleri filed 25 January 2013.
[19] Affidavit of Amanda Marylyne Camilleri filed 25 January 2013, at Annexure “AMC-3”.
[20] Ibid, at Annexure “AMC-4”.
On 15 October 2012, Mr Mapleston wrote to Thomsons Lawyers.
The letter stated:
I act for Leonie Frances Noonan. With reference to the Bankruptcy Notice dated 17 September 2012 served on my client on 1 October 2012 …[21] (emphasis added)
[21] Affidavit of Jessica Bevacqua filed 29 May 2013, at Annexure “JB-5”.
The Applicant’s case with respect to service of the Notice
In her affidavit dated 28 May 2013, Ms Noonan states:
I did not receive any mail containing the said Bankruptcy Notice. Myself and my husband, Mr. Phillppe (sic) Barros and our children vacated those premise (sic) on the 4th day of
September 2012 and have been living at Unit 707/7 Yarra Street, South Yarra since the date we vacated the East Melbourne property …
I am advised by my solicitor and verily believe that on or about 28 September 2012 a copy of the said Bankruptcy Notice was sent by email from the Applicant’s solicitor to my solicitor
James D Mapleston.[22]
[22] Affidavit of Leonie Francis Noonan filed 28 May 2013, p.1 at para.2 and p.2 at para.4.
On 1 July 2013, Mr Barros swore an affidavit in which he deposed as follows:
When the respondent and our family left the property on
4 September 2012, I did not arrange for mail to be redirected to us for a period of 3 weeks as I had been told by Lenny
(“the Body Corporate Manager”)that he would check our letter box at the property and leave any mail for us at the
Body Corporate Reception area. Approximately two week (sic) after we left the property I arranged for a tenant at the property,
Mr. Malcolm Cooke (“Mr Cooke”) to collect the mail held at the
Body Corporate Reception for us.[23]
[23] Affidavit of Phillipe Barros filed 1 July 2013, p.1 at para.3.
Mr Barros goes on to say that, after three weeks, he arranged with the Post Office to redirect mail to his office address. Mr Barros stated that a copy of the Notice was not received from Mr Cooke or at his office address.
In the submissions made to Registrar Hetyey, it was put that the issue to be considered in relation to the application of Reg.16.01(1) of the Regulations was whether ‘Unit 601, 279 Wellington Parade South,
East Melbourne’ was Ms Noonan’s last known address. Ms Noonan relied on the judgments of:
·Napiat Pty Ltd v Salfinger; Re Salfinger (No 7) (2011) 284 ALR 581 (“Napiat”), a judgment of Foster J;
·T & S Recoveries Pty Ltd v Skalkos [2004] FCA 816; and
·Drake v Stanton [1999] FCA 1635 (“Drake”),
to submit that there was insufficient evidence to establish that
Ms Noonan had made known that her address was ‘Unit 601, 279 Wellington Parade South, East Melbourne’ at a time which was in close proximity to the Notice being mailed.
With respect to the issue of service by email on Mr Mapleston,
Ms Noonan relied on the decision of FM Burnett (as he was then) in Mulherin v Quinn Villages Pty Ltd (2012) 269 FLR 474 (“Mulherin”) to submit that service of the Notice on Mr Mapleston did not satisfy Reg.16.01(1)(e)(ii) of the Regulations because:
·The covering letter did not state the documents were being sent by way of service;
·Mr Mapleston did not conclude that the documents were being sent to him by way of service; and
·There was no evidence of a long and established connection between the Respondent and Mr Mapleston.
The Respondent’s submissions with respect to service of the Notice
The Respondent submitted that the letter containing the Notice that was sent to ‘Unit 601, 279 Wellington Parade South, East Melbourne 3002’ was not returned to the sender.[24]
[24] Affidavit of Jessica Bevacqua filed 18 November 2013, p.5 at para.36.
The issue is whether it was served on the last known address of
Ms Noonan. Whether or not it is received by the debtor is not relevant.[25] The debtor in the case of Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107 (“Skalkos”) sought an adjournment to adduce evidence of non-receipt of the Bankruptcy Notice. The adjournment was refused on the basis that evidence of non-receipt would not assist the debtor, provided the Petitioning Creditor had shown that the Bankruptcy Notice had been served on the debtor’s last known address. In this case, the evidence of Ms Camilleri shows that the Notice was posted on 28 September to ‘Unit 601, 279 Wellington Parade South,
East Melbourne 3002’[26] and the evidence of Ms Bevacqua is that it was not returned to the sender.[27] Delivery is, therefore, deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.
[25] Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107.
[26] Affidavit of Amanda Marylyne Camilleri filed 25 January 2013, at Annexure “AMC-1”.
[27] Affidavit of Jessica Bevacqua filed 18 November 2013, p.5 at para.36.
Ms Noonan says that she did not receive any mail containing the Notice; she does not say that she did not receive a copy of the Notice from Mr Mapleston who, in subsequent correspondence, purported to communicate Ms Noonan’s instructions in relation to the Notice.
Mr Barros, in his affidavit,[28] stated that the family vacated the property on 4 September 2012 and made arrangements for the collection of their mail. There is no evidence from the Body Corporate Manager of what he did, or did not, collect from the mail box and leave in the reception area, and there is no evidence from Mr Cooke as to what he did, or did not, collect from there. If the mail was left in a public area, it is possible that it was collected by someone else or otherwise disposed of. There is no evidence from Australia Post to confirm that there was a
re-direction or when this was to start or finish.
[28] Affidavit of Phillipe Barros filed 1 July 2013, p.1 at para.3.
The presumption that the Notice was delivered to ‘Unit 601,
279 Wellington Parade South, East Melbourne 3002’ is therefore not rebutted.
With respect to service by email on Mr Mapleston, it is not suggested that Mr Mapleston did not receive the email or that he received it at a time other than, effectively, the moment it was sent. On
5 October 2012, Mr Mapleston wrote to Thomsons Lawyers, acknowledging receipt of the Notice.[29] Thereafter, there was considerable correspondence between Ms Bevacqua and Mr Mapleston in relation to the Notice itself. In particular, on 15 October 2012,
Mr Mapleston refers to the Notice being “… served on my client on
1 October 2012”.[30][29] Affidavit of Amanda Marylyne Camilleri filed 25 January 2013, at Annexure “AMC-3”.
[30] Affidavit of Jessica Bevacqua filed 29 May 2013, at Annexure “JB-5”.
Mr Mapleston has not gone on affidavit at any point about what he did, or did not, tell Ms Noonan in relation to the Notice that was sent to him.
Further, the Respondent submits that:
·Mr Mapleston acted for Ms Noonan from, at least, 3 September 2012, less than one month before the Notice was issued;
·Mr Mapleston was acting for Ms Noonan and corresponding with Thomsons Lawyers in relation to a Bankruptcy Notice issued by the Respondent against Ms Noonan, and in respect of the same debt as the current Notice;
·Once his attention was drawn to Reg.16.01 of the Regulations, Mr Mapleston did not take issue with service of the Notice;
·At no time did Mr Mapleston deny that he had instructions to act for Ms Noonan in relation to the Notice, and engaged in substantial correspondence with Thomsons Lawyers about the matter; and
·Ms Noonan had a history of being represented and of it being represented on her behalf that her then-current solicitors would accept service of documents on her behalf.
The Respondent submits that a debtor’s ‘last known address’ is an address made known, either directly or indirectly, by the debtor at a time close to when service of the Bankruptcy Notice is said to have been effected. The last known address may not be the debtor’s residential address. A Bankruptcy Notice may be served on a debtor’s solicitor on the basis that it constitutes the debtor’s last known address. A solicitor’s address can constitute a debtor’s last known address even where that solicitor has not expressly confirmed that he or she has instructions to accept service prior to service taking place.
The Respondent referred the Court to a number of cases to support the propositions outlined above. With respect to Mulherin, it was submitted that the factual circumstances were very similar to the present case, except that the Bankruptcy Notice was sent to the solicitors by facsimile transmission. An initial Bankruptcy Notice had lapsed and a fresh Bankruptcy Notice was issued. At all times since the issue of the first Bankruptcy Notice, the debtor had been represented by the same solicitors. The second Bankruptcy Notice was sent to those solicitors, who responded that they did not have instructions to accept service. The service relied on was service by facsimile.
In Mulherin, his Honour held that service had not been effective under the provisions of Reg.16.01(1)(e)(i) of the Regulations because it was not sent to “a facility maintained by the person for receipt of electronically transmitted documents”.[31] His Honour found, however, that service could be effected at a place or address to which the debtor has an established connection and could be effected on the debtor’s solicitors. His Honour further expressed the view that, had the document been served by email on the solicitor, it would have been sufficient for the purposes of Reg.16.01(1)(e)(ii) of the Regulations.[32]
[31] Bankruptcy Regulations 1996, Reg.16.01(1)(e)(i).
[32] (2012) 269 FLR 474 at para.19.
The alternative submission put by the Respondent was that service by post to the East Melbourne address constituted good service.
The Respondent referred the Court to the judgment of Jacobson J in Civic Video Pty Ltd v Warburton [2013] FCA 934.
In this case, reliance was made on a statement by Ms Noonan in her affidavit sworn in June 2011, and confirmation of that address by
Ms Noonan’s mother in April 2012. The Respondent also referred to the various attempts to serve the numerous bankruptcy notices on
Ms Noonan between January 2011 and September 2012. Those efforts involved ASIC searches, attendances at the Keilor address, which was found to be the address of Ms Noonan’s brother-in-law, and at the Steane Street address, which was Ms Noonan’s mother’s address.
The electoral roll showed Ms Noonan to still live at the Steane Street address in April 2012. This was also the last ASIC address listed for
Ms Noonan.
The Keilor and Steane Street addresses had already been discounted as addresses at which Ms Noonan resided. The East Melbourne address was the last address provided by Ms Noonan and confirmed, as at April, to be Ms Noonan’s residential address. The evidence is that she, in fact, resided there until 4 September 2012.[33]
[33] Affidavit of Phillipe Barros filed 1 July 2013, p.1 at para.3.
Conclusions
The application in this matter seeks a review of the decision of Registrar Hetyey. Two of the issues raised in the affidavit of
Mr Mapleston relate to the refusal of Registry Hetyey, on 2 July 2013, to grant an adjournment sought by Ms Noonan. These matters were not argued before me, although I note that the matter had already been adjourned from 30 May 2013 for the purpose of Ms Noonan lodging affidavit evidence.
A third issue relates to Registrar Hetyey’s decision to accept that the Respondent had complied with the requirements of Reg.16.01(1)(e)(ii) by service of the Notice by email on Mr Mapleston. It is with respect to that issue that I now deal.
The relevant provisions with respect to service of documents are contained in Reg.16.01 of the Regulations:
Service of documents
(1)Unless the contrary intention appears, where a document is required or permitted by the Act or these Regulations to be given or sent to, or served on, a person (other than a person mentioned in regulation 16.02), the document may be:
(a) sent by post, or by a courier service, to the person at his or her last-known address; or
(b) left, in an envelope or similar packaging marked with the person's name and any relevant document exchange number, at a document exchange where the person maintains a document exchange facility; or
(c) left, in an envelope or similar packaging marked with the person's name, at the last-known address of the person; or
(d) personally delivered to the person; or
(e) sent by facsimile transmission or another mode of electronic transmission:
(i)to a facility maintained by the person for receipt of electronically transmitted documents; or
(ii)in such a manner (for example,
by electronic mail) that the document should, in the ordinary course of events, be received by the person.(2)A document given or sent to, or served on, a person in accordance with subregulation (1) is taken, in the absence of proof to the contrary, to have been received by, or served on, the person:
(a) in the case of service in accordance with paragraph (1)(a) or (b)--when the document would, in the due course of post or business practice, as the case requires, be delivered to the person's address or document exchange facility; and
(b) in the case of service in accordance with paragraph (1)(c), (d) or (e)--when the document is left, delivered or transmitted, as the case requires.[34]
[34] Bankruptcy Regulations 1996, Reg.16.01.
It is clear, as stated by Roch LJ in Robertson v Banham & Co [1997]
1 WLR 446, and quoted by the Full Court of the Federal Court in Skalkos, that the purpose of the regulation is that the originating process should be brought to the attention of the person being served. The ‘last known address’ is not confined to a person’s residential address.
In Drake, Tamberlin J considered that the ““last-known address of the person” is to that address which has been made known by the applicant as at the time closest to the date in question”.[35] In Magafas v Carantinos (2008) 222 FLR 185, Raphael FM (as he then was) considered that ““the last known address” to the world at large would include the last known address that a debtor [‘debtor’ in the reported version appears to be an error] might reasonably discover”.[36]
[35] [1999] FCA 1635 at para.8.
[36] (2008) 222 FLR 185 at para.15.
In Troy and Company v Cameron [2002] FMCA 42, the Bankruptcy Notice was delivered by a process server to an employee at the office of the debtor’s solicitor. The solicitor had previously notified the creditor’s solicitors that, “We are instructed to accept service of … proceedings of any nature to be instituted by your client against
Mr Cameron”.[37] Her Honour Bryant CFM (as she then was) accepted that such service was effective for the purposes of Reg.16.01(1)(c) of the Regulations.[37] [2002] FMCA 42 at para.46.
In Napiat, his Honour Foster J accepted that it is not necessary that the address be made known directly by the debtor. It is sufficient that the address comes to the knowledge of the creditor as the last address of the debtor, however that knowledge is obtained.
With respect to the provisions of Reg.16.01(1)(e) of the Regulations, Smith FM (as he then was) considered, in American Express Australia Ltd v Michaels (2010) 237 FLR 268, that the provision was intended to identify a time of receipt which is simple to establish. It raises a rebuttable presumption that receipt, and time of receipt, occurred when the email is transmitted by its sender, being when it is irretrievably sent by the electronic mail facility used by the person serving the electronic document.
The question is, therefore, whether the transmission of the Notice to
Mr Mapleston was service on Ms Noonan at her last known address for the purposes of Reg.16.01(1)(e) of the Regulations.
At the very least, by 3 September 2012, Mr Mapleston acted for
Ms Noonan with respect to the Bankruptcy Notice dated
19 March 2012. That Bankruptcy Notice was withdrawn because of an error in that the notice attached the incorrect County Court default judgment. On 17 September 2012, the current Notice was issued. On
20 September 2012, a ‘without prejudice’ letter enclosing a copy of the Notice was sent to Mr Mapleston. It is reasonable to assume that both Ms Noonan and Mr Mapleston should have expected that a fresh Bankruptcy Notice would be issued, given the history of the matter and the fact that the previous Bankruptcy Notice had been withdrawn because of the error identified by Mr Mapleston. At no stage did
Mr Mapleston notify Thomsons Lawyers that he no longer had instructions to act for Ms Noonan,[38] nor did he notify
Thomsons Lawyers that he did not hold instructions to accept service. By contrast, Mr Mapleston entered into negotiations with
Thomsons Lawyers.
[38] Contra Marshall & Anor v Clarke & Ors (2003) 180 FLR 297.
Further, in correspondence on 15 October 2012, Mr Mapleston referred to the Notice having been served on Ms Noonan “on 1 October 2012”.[39] It is not clear why Mr Mapleston specified that date, unless it was the date upon which he gave a copy of the Notice to Ms Noonan, or was informed by Ms Noonan that it had otherwise been served on her.
[39] Affidavit of Jessica Bevacqua filed 29 May 2013, at Annexure “JB-5”.
In Mulherin, the debtor’s solicitors had acted for the debtor with respect to a previous Bankruptcy Notice which had lapsed. While the solicitors expressly stated, after receiving the second
Bankruptcy Notice, that they held no instructions to accept service, Burnett FM (as he then was) found that Reg.16.01 of the Regulations did not require personal service, but service at a place or address with which the debtor had an established connection. But for his interpretation of Reg.16.01(1)(e)(i) of the Regulations, his Honour would have found that service on the debtor’s solicitors would have been effective for the purposes of Reg.16.01 of the Regulations.
Based on the material before me, I am satisfied that, in the circumstances of this case, service of the Notice by email on
Mr Mapleston on 28 September 2013 was effective service on
Ms Noonan for the purpose of Reg.16.01(1)(e)(ii) of the Regulations. On that basis, the Sequestration Order made by Registrar Hetyey on
2 July 2013 continues to have force and effect.
Having reached that conclusion, I do not need to consider the alternative submission with respect to service on Ms Noonan by post at ‘Unit 601, 279 Wellington Parade South, East Melbourne 3002’.
The Respondent drew to the attention of the Court certain typographical errors in the Creditor’s Petition, in particular, an incorrect date given for the affidavit of service of Ms Camilleri and the use of the pronoun ‘he’ instead of ‘she’ with respect to Ms Noonan.
It was submitted by the Respondent, in accordance with the decision of Adams v Lambert (2006) 228 CLR 409, that these were formal defects or irregularities within the meaning of s.306(1) of the Bankruptcy Act 1966 (Cth). I accept that submission.
The Respondent also referred to the fact that the Creditor’s Petition was signed by Thomsons Lawyers as solicitors for the Respondent, rather than by Ms Bevacqua personally. It was submitted that this was a formal defect which gave rise to no prejudice to Ms Noonan.[40] I also accept that submission.
[40] Australia and New Zealand Banking Group Limited v Hubner [1999] FCA 1346.
For these reasons, the application of Ms Noonan is dismissed and the Sequestration Order made by Registrar Hetyey on 2 July 2013 is affirmed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Date: 20 December 2013
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