Queensland Law Society Inc v Jensen
[2003] FMCA 564
•13 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QUEENSLAND LAW SOCIETY INC v JENSEN | [2003] FMCA 564 |
| BANKRUPTCY – Contested petition – application to dismiss petition on ground that defective Bankruptcy Notice was served – whether copy of judgment attached – sequestration order. |
| Applicant: | QUEENSLAND LAW SOCIETY INCORPORATED |
| Respondent: | PETER JENSEN |
| File No: | BZ362 of 2003 |
| Delivered on: | 13 November 2003 |
| Delivered at: | Brisbane |
| Hearing Date: | 14 October 2003 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Martin |
| Solicitors for the Applicant: | McCullough Robertson |
| Respondent: | Appeared in person |
ORDERS
A sequestration order be made against the estate of Peter Jensen.
The Applicant’s costs of and incidental to the petition, including reserved costs, if any, be taxed in accordance with the Federal Court Rules and paid from the estate of the Respondent in accordance with the Bankruptcy Act 1966.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ 362 of 2003
| QUEENSLAND LAW SOCIETY INCORPORATED |
Applicant
And
| PETER JENSEN |
Respondent
REASONS FOR JUDGMENT
Although the matter listed for my determination is a contested creditor's petition, the seminal issue is whether the petitioning creditor, Queensland Law Society (QLS), has properly served the Bankruptcy Notice upon the judgment debtor, Peter Jensen (Jensen). The petition which was presented on 30 June 2003 claims the sum of $589,772.88 pursuant to a summary judgment from the Queensland Supreme Court given 20 March 2003. The debtor is a former practising solicitor who has been convicted of fraud charges associated with his legal practice and, as a result, has been struck off the roll of solicitors and sentenced to a term of imprisonment.
The debt relates to funds paid by the QLS from the Legal Practitioners Fidelity Guarantee Fund to meet some claims by the former clients of Jensen. The onus, of course, rests upon the applicant creditor to prove, on the balance of probabilities, that service of Bankruptcy Notice QN 281/03 was properly effected. The evidence tested by competent cross-examination by Mr Jensen at trial relied upon by the applicant is as follows:
a)the solicitor, Elizabeth Lawson, in the employ of the solicitors for the creditors, says:
i)she arranged for the Bankruptcy Notice to be presented to ITSA on 26 March 2003. Her usual practice is to file three copies and receive two signed copies back.
ii)the Bankruptcy Notice she presented to ITSA attached a copy of the relevant judgment.
iii)after obtaining an order for substituted service, she arranged for service by forwarding a copy and enclosures to a process service, International Detection Services. She says, "I can recall checking the Bankruptcy Notice and the order by Registrar Ramsay dated 2 May 2003 were contained in the envelope addressed to Peter Jensen before I sealed the envelope. To the best of my recollection, I did not check each page of the Bankruptcy Notice, however I say that I had no reason to separate the Bankruptcy Notice from the judgment."
Under cross-examination, she acknowledged that some of the photocopies of the Bankruptcy Notice used as annexures to the affidavits in these proceedings show different markings, and that it appears, at least once, the judgment was removed from the Bankruptcy Notice for photocopying. She was conscious, at the critical time that the Bankruptcy Notice was sent by post to the process server, of the need to enclose an original Bankruptcy Notice. I accept that evidence. No original can be found on her file.
b)Charmaine Keir, the office manager of International Detection Services, gave instructions to the licensed commercial agent retained to effect service. She gave evidence of her usual practice in these matters. She had no particular recollection of this matter (save for receiving the letter of instructions) which, considering the volume of requests for service, is not surprising. She impressed me as an efficient operator who says that she is aware of the needs to serve an original Bankruptcy Notice and she is able to identify an original by ensuring the signature of the Official Receiver or its delegate is "written in ink". She says, and I accept, that had she merely received a photocopy of a Bankruptcy Notice from the solicitors for the creditor, she would have contacted them and requested an original sealed copy. She confirmed no original notice is on her file, nor did she retain a copy of the notice served.
c)The licensed commercial agent retained, Mr Ross Williams, gave evidence of serving on Phillip Baxter of Baxter Solicitors, an envelope and order for substituted service and a letter to the debtor, which he altered the date of to 7 May 2003 (the date of service). He cannot recall whether he examined the contents of the envelope when serving same. The order of Registrar Ramsay for substituted service required the "copy of the Bankruptcy Notice, together with a sealed copy of this order" to be served upon the respondent by handing to and leaving with a principal of the firm Baxter Solicitors. The documents were to be contained in a sealed envelope.
Mr Phillip Baxter gave evidence as a result of a subpoena issued by Jensen. He recalls the day of service by Mr Williams. He recalls opening the envelope and inspecting the contents, which included the Bankruptcy Notice which he did not examine in detail. He says Jensen collected the documents that afternoon from him and returned to his office the next day. When confronted with exhibit 4, he was unable to say whether that was the copy of the Bankruptcy Notice in the envelope. He did not "flick through" the pages of the notice and did not look to see if the judgment was attached.
Mr Jensen gave evidence and was cross-examined. He simply states the Bankruptcy Notice he was served with:
a)was not an original; and
b)did not annexe a copy of the judgment.
He denied strenuously that he had fabricated the evidence, in particular exhibit 4, which is the Bankruptcy Notice held by Baxter after it had been returned by Jensen to him on 8 May 2003. Whilst he fully acknowledges the criminality of his actions which resulted in his imprisonment, he asserts he has opposed the petition because service was not properly effected, and although he acknowledges the debt, he believes the petitioning creditor has not, as required, strictly complied with the Bankruptcy Act. Exhibit 4 is clearly a photocopy.
Ms Keir says it is her usual practice to ensure an original is served.
I accept in this matter that she followed her usual practice. I do not accept the evidence of Mr Jensen. I am satisfied that service has been properly effected and being satisfied of the other matters to which section 52 applies, I make a sequestration order in the usual terms.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
0
0
0