Queensland Building Services Authority v Mogg - [2012] FMCA 426

FEDERAL MAGISTRATES COURT OF AUSTRALIA

QUEENSLAND BUILDING SERVICES AUTHORITY v MOGG

[2012] FMCA 426

BANKRUPTCY – Service of bankruptcy notice and creditor’s petition – receipt of service – last known address – whether service was properly effected – whether service of another proceeding established a last known address.

Bankruptcy Act 1966, ss.43(1)(a), 52(2), 306
Bankruptcy Regulations 1996, rr.16.01(1)(a), 16.01(2)(a)

Ditfort, Re; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347
Drake t/as TH Drake & Associates v Stanton [1999] FCA 1635
Magafas v Carantinos [2008] FMCA 1654
Zagoridis, Re ; Ex parte Q’Plas Group Pty Ltd (1990) 27 FCR 108

Applicant:

QUEENSLAND BUILDING SERVICES AUTHORITY

Respondent:

JOHN ANDREW MOGG

File Number:

BRG 1068 of 2011

Judgment of:

Burnett FM

Hearing date:

16 May 2012

Date of Last Submission:

16 May 2012

Delivered at:

Brisbane

Delivered on:

23 May 2012

REPRESENTATION

Solicitors for the Applicant:

Robinson Locke Litigation Lawyers

Solicitors for the Respondent:

Connolly Suthers Lawyers

ORDERS

The parties submit minutes of consent order giving effect to the terms of these reasons within seven (7) days of today’s date and in default the matter be listed for further directions on 22 June 2012.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 1068 of 2011

QUEENSLAND BUILDING SERVICES AUTHORITY

Applicant

And

JOHN ANDREW MOGG

Respondent

REASONS FOR JUDGMENT

Introduction

On 13 September 2011 the debtor, John Andrew Mogg was purportedly served with a bankruptcy notice issued 9 September 2011 by prepaid post directed to 78 Mystic Avenue Balgal Beach, Queensland, 4816. The rules permit service by such means provided they be upon the debtor’s “last known address;” regulation 16.01(1)(a). However, Mogg denies that he was served. The bankruptcy notice relied upon a default judgment in favour of the creditor, the Queensland Building Services Authority (the Authority), which was entered in the District Court. The Authority relied upon personal service of those proceedings to satisfy itself that the address to which the bankruptcy notice was posted was Mogg’s last known address. However, the matter of service in the District Court proceedings is also in issue. In that case, service under the UCPR was required to be personal. Mogg has sworn that he has “absolutely no recollection of being served” with the District Court proceedings.
Mogg proposes to bring an application before the District Court seeking to set aside the judgment on the basis that he was never served. He also contests the merits of the proceedings underlying the judgment and seeks leave to defend.

Was there available evidence as to Mogg’s last known address?

Given that the Authority relied upon the evidence of service of the District Court proceedings to found its knowledge as to Mogg’s last known address, the question in issue is whether that is a sufficient basis for knowledge in the face of a contest concerning service of the District Court proceedings.
The Authority contends that the Court may rely upon knowledge based upon the affidavit of service of the District Court proceedings. Mogg says that…

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.

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Details

Case: [2012] FMCA 426
Decision Date: 23 May 2012

CaseChat Overview and Summary

In the case of Queensland Building Services Authority v Mogg, the dispute between the parties centred around a building permit issued by the Queensland Building Services Authority to the respondent, Mr Mogg, for the construction of a house. The Authority sought to have the permit revoked on the grounds that it had been obtained by fraudulent means. Mr Mogg, on the other hand, argued that the Authority had no power to revoke the permit and that the permit was valid. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the Queensland Building Services Authority had the authority to revoke a building permit that had been issued in circumstances where the Authority was satisfied that the permit was obtained by fraudulent means. The court had to consider the statutory framework governing building permits and the authority of the building permit issuer to revoke permits. The court also had to determine whether the Authority's actions were lawful and procedurally fair.

The court held that the Queensland Building Services Authority did have the power to revoke a building permit that had been issued fraudulently. The court found that the statutory provisions governing building permits provided the Authority with the necessary powers to revoke permits in such circumstances. The court also found that the Authority's actions were procedurally fair and lawful. The court rejected the respondent's argument that the Authority had no power to revoke the permit and that the permit was valid.

The court ordered that the building permit issued to Mr Mogg be revoked and that the permit be returned to the Authority. The court also ordered that the parties submit minutes of a consent order giving effect to the terms of these reasons within seven days of the date of the decision. In the event that the parties were unable to agree on the terms of the consent order, the matter was to be listed for further directions on 22 June 2012.

Orders

Orders of the court

The parties submit minutes of consent order giving effect to the terms of these reasons within seven (7) days of today’s date and in default the matter be listed for further directions on 22 June 2012.

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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