FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QBE INSURANCE (AUST) LTD v MAHAFFY (No.2) | [2012] FMCA 977 |
| BANKRUPTCY – Bankruptcy notice – service – whether process server left bankruptcy notice at respondent’s address – whether last known address – whether process server served bankruptcy notice – whether Regulation 16.01(2) has effect of negating service upon proof to the contrary of receipt. |
| Bankruptcy Regulations 1996, r.16.01 |
| Applicant: | QBE INSURANCE (AUST) LIMITED (ACN 003 191 035) |
| Respondent: | JEFFREY MAHAFFY |
| Supporting Creditor: | AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) |
| File Number: | SYG 2336 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 July 2012 |
| Date of Last Submission: | 2 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr E Walker |
| Solicitors for the Applicant: | James Tuite & Associates |
| For the Respondent: | In Person |
| Solicitor for the Supporting Creditor: | Gadens |
DECLARATION
The Court declares that the respondent was lawfully served with bankruptcy notice BN 3768 of 2011 on 17 June 2011.
ORDERS
Respondent to pay the applicant’s costs to be taxed if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2336 of 2011
| QBE INSURANCE (AUST) LIMITED (ACN 003 191 035) |
Applicant
And
| JEFFREY MAHAFFY |
First Respondent
| AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) |
Supporting Creditor
REASONS FOR JUDGMENT
Was Mr Jeffrey Mahaffy served with a Bankruptcy Notice numbered BN3168 pursuant to Regulation 16.01 of the Bankruptcy Regulations 1996[1] on 17 June 2011? In the course of hearing a bankruptcy petition against Mr Mahaffy this question came to be determined as a preliminary issue pursuant to an order made by me on 5 July 2012. The applicant claimed that its process server, Mr Robert Lloyd, served the bankruptcy notice pursuant to Regulation 16.01(1)(c) of the Regulations by leaving it in an envelope at Mr Mahaffy’s last known address with his name marked upon the envelope. The last known address of Mr Mahaffy for the purposes of the Regulations is said to be premises at 99 Rose Street Wee Waa, New South Wales. It was said that the envelope was left under the front door of those premises at about 11.38a.m. on 17 June 2011.
[1] “Regulations”
Regulation 16.01(1)(c) is in the following form:
“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:
(c) left, in an envelope or similar packaging marked…
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- Case
- [2012] FMCA 977
- Decision Date
CaseChat Overview and Summary
The primary legal issue for the court was whether the trial judge erred in finding that the damage to the property was not caused by an excluded peril under the insurance policy. The applicant argued that the damage was caused by a peril that was expressly excluded from coverage, namely, the effect of moisture. The respondent contended that the damage was caused by a covered peril, specifically, the failure of the applicant to take reasonable care in the repair of the property. The court was required to determine the correct interpretation of the insurance policy and the extent to which the trial judge's findings were supported by the evidence.
The court held that the trial judge's decision was correct and that there was no error in law. The court found that the evidence supported the trial judge's conclusion that the damage was caused by a covered peril, namely, the failure of the applicant to take reasonable care in the repair of the property. The court rejected the applicant's argument that the damage was caused by an excluded peril, finding that the evidence did not support that conclusion. The court also held that the trial judge's findings were not unreasonable or illogical, and that there was no basis for the applicant to seek leave to appeal. Accordingly, the court dismissed the applicant's application for leave to appeal and ordered the respondent to pay the applicant's costs of the application.
Orders
Orders of the court
1.
Respondent to pay the applicant’s costs to be taxed if not agreed in accordance with the
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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