Pandey v Baycorp Collections PDL (Australia) Pty Ltd

[2013] FCCA 1398

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANDEY v BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LTD [2013] FCCA 1398

Catchwords:
BANKRUPTCY – Application for Review of Sequestration Order made by a Registrar – allegation of failure to serve Bankruptcy Notice and Creditors Petition – application dismissed.

Legislation:  
Bankruptcy Act 1966, s.153B

Applicant: APARNA PANDEY

Respondent: BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LTD ACN 119 478 778 AS ASSIGNEE FROM COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124

File Number: MLG 612 of 2013

Judgment of: Judge Whelan

Hearing dates: 28 and 29 August 2013

Date of Last Submission: 29 August 2013

Delivered at: Melbourne

Delivered on: 29 August 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Ms McCredden

Solicitors for the Respondent: White Cleland Pty Ltd

Counsel for the Trustee in Bankruptcy Ms Sheggerud-Woods

Solicitors for the Trustee in Bankruptcy Marsh & Maher

ORDERS:

1. The Application filed 17 July 2013 to annul the bankruptcy be dismissed.

2. The sequestration order made by Registrar Caporale on 18 June 2013 be upheld.

3. The costs of the Respondent creditor, including reserved costs, be taxed and paid from the estate of the Applicant with the same priority as the costs of a petitioning creditor and in accordance with the Federal Court Rules 2011.

4. The costs of the Trustee in Bankruptcy, including reserved costs,

   
   

   be taxed and paid from the estate of the Applicant as costs of and incidental to the bankruptcy administration and in accordance with the Federal Court Rules 2011.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 612 of 2013

APARNA PANDEY

Applicant

And

BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LTD
ACN 119 478 778 AS ASSIGNEE FROM COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124

Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

1. This is an Application to have a sequestration order that was made by Registrar Caporale on 18 June 2013 set aside. The substance of the Application is that the Applicant, Ms APARNA PANDEY

   
   

   (“the Applicant”), says that she was not served with either the Bankruptcy Notice or the Creditor’s Petition.

2. I have had evidence this morning from Mr KENNETH RAMSHAW (“Mr Ramshaw”), who is a Process Server, in support of three affidavits which Mr Ramshaw has sworn in these proceedings.

   
   

   Those affidavits were dated 28 February, 31 May and 22 August 2013.

3. In each of those affidavits, Mr Ramshaw states that he visited the property, which is the home of the Applicant, in these proceedings.

   
   

   He gives a description in the affidavit of 22 August 2013 of that property. Mr Ramshaw says that, “On each occasion that I served her, her daughter aged about 11 came to the door and then went back inside and got Ms Pandey for me”.[1] It is clear from the Statement of Affairs filed by the Applicant that she does have a daughter of about that age.

   [1] Affidavit of Kenneth Ramshaw sworn 22 August 2013, p.1 at para.4.

4. [4] Affidavit of Kenneth Ramshaw sworn 31 May 2013, p.1 at para.3.

   Mr Ramshaw then gives a description of the person whom he served and says that when he asked the person, “Is your name
   APARNA PANDEY?” she said “Yes”.[2] On each occasion respectively, Mr Ramshaw asked, “Are you the person referred to in the Bankruptcy Notice as the Respondent Debtor?”[3] and on the second occasion,

   
   “Are you the person referred to in this Creditor’s Petition as the Respondent Debtor?”[4]

   and on both occasions, the Applicant said “Yes”. Mr Ramshaw has identified the Applicant in the Court today.

   [2] Affidavit of Kelly Reaara Margaret Glover sworn 6 May 2013 at Annexure “A”.

   [3] Ibid.

5. Mr Ramshaw is a professional Process Server. He has no interest in lying in an Affidavit of Service. As was pointed out by Ms McCredden, Counsel for Baycorp Collections PDL (Australia) Pty Ltd

   
   

   (“the Respondent”), if Mr Ramshaw had not been able to serve the Applicant, he could have put in an affidavit saying, ‘I’ve been unable to serve the Applicant’, and he still would have been paid for his efforts. There was no financial advantage or any other advantage for Mr Ramshaw to provide a false affidavit. To the contrary, if this Court was to find that Mr Ramshaw was not a witness of truth, then it would affect his role as a Process Server, and I therefore find it very unlikely that he would come before this Court and tell the Court matters which were not true.

6. The Applicant has given evidence that she has never seen

   
   

   Mr Ramshaw before, and that he has never given her any documents. The Applicant has also given evidence today that she never received a letter of 6 March 2013 in response to an approach that was made by her Husband to the Respondent to negotiate a discount on the amount owed. I find it more probable than not that the Applicant’s Husband contacted the Respondent, in response to the Bankruptcy Notice being served, in order to try and negotiate a settlement.

7. The Applicant has said in her affidavit that there was no response from the Respondent to that approach by her Husband and that they did not ring her back. Yet the Applicant was aware that the offer had been rejected. I find it more probable than not that the Applicant was aware that the offer had been rejected because the Respondent had instructed its solicitors to notify the Applicant in writing that the offer had been rejected, and that that was the content of the letter of 6 March 2013. That letter also indicated that the Respondent was prepared to proceed to issue a Creditor’s Petition if the matter was not satisfactorily resolved.

8. I also have difficulty in the Applicant’s evidence that the Commonwealth Bank was the only unsecured creditor that she had, given the Report to the Creditors prepared by

   
   

   Mr ROBERT SCOTT WOODS on behalf of the Trustee in Bankruptcy which indicates that, apart from the Commonwealth Bank, there are other unsecured creditors, including the ANZ Bank and other lenders.[5] I therefore do not find the Applicant to be a witness of truth, and I therefore reject the evidence that she was never served with the Bankruptcy Notice or the Creditor’s Petition.

   [5] Affidavit of Robert Scott Woods sworn 28 August 2013, at Annexure “RSW-8”.

9. On that basis, I am satisfied that the sequestration order that was made by Registrar Caporale was validly made and that there are no grounds to have it set aside.

10. When this matter was adjourned for the purpose of Mr Ramshaw being called to give evidence, the Applicant was warned that should the Court accept the evidence of Mr Ramshaw, an order for costs may be made against her.

11. As the Applicant has been entirely unsuccessful in this Application, there will be orders for costs made in favour of both the Respondent and the Trustee in Bankruptcy.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Date: 18 September 2013