Re Bond, Paul Levinson Ex Parte Coomera Resort Pty Ltd
[1996] FCA 485
•3 Jun 1996
IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION )
No. QN 791 of 1996
BANKRUPTCY DISTRICT OF THE )
STATE OF QUEENSLAND )
RE:PAUL LEVINSON BOND
EX PARTE:COOMERA RESORT PTY LTD
MINUTES OF ORDER
JUDGE MAKING ORDER: Spender J
DATE OF ORDER: 3 June 1996
WHERE MADE: Brisbane
THE COURT ORDERS THAT:
(1)leave be given to Coomera Resort Pty Ltd to effect service of a bankruptcy notice on the judgment debtor, Paul Levinson Bond, in the United States of America by delivering to him personally the bankruptcy notice issued herein, signed and stamped by a Deputy Registrar in Bankruptcy, as well as a sealed copy of this order;
(2)service in accordance with order (1) be deemed good and sufficient service of the bankruptcy notice;
(3)costs be reserved.
NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION )
No. QN 791 of 1996
BANKRUPTCY DISTRICT OF THE )
STATE OF QUEENSLAND )
RE:PAUL LEVINSON BOND
EX PARTE:COOMERA RESORT PTY LTD
CORAM: Spender J
DATE: 3 June 1996
PLACE: Brisbane
REASONS FOR JUDGMENT
This is an application filed on 1 May 1996 by Coomera Resort Pty Ltd for orders that:
1.leave be given to it to effect service of a bankruptcy notice on Paul Levinson Bond, a judgment debtor, in the United States of America by delivering to the judgment debtor, personally, the bankruptcy notice issued herein signed and stamped by a Deputy Registrar in Bankruptcy as well as a sealed copy of the order giving such leave;
2.that service in accordance with the first order be deemed good and sufficient service of the said bankruptcy notice;
3.and that costs be reserved.
The question of the service of bankruptcy proceedings, using a general term, has been the subject of some difficulty and there are, in the judgment of Sheppard J in Re Trimbole; Ex parte Deputy Commissioner of Taxation (1985) 59 ALR 625, observations pointing to the difficulties about the lack of specific provision in the Bankruptcy Act or Rules dealing with the question of service outside the
jurisdiction. His Honour, at 626 of that judgment, said of discussions he had with counsel some time earlier:
"...there arose consideration of whether or not it was appropriate at all to serve a bankruptcy petition outside the jurisdiction. Counsel referred me to the decision of the present Chief Justice of the High Court, when judge in bankruptcy, in Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256 which is authority for the proposition that a bankruptcy petition may be served outside the jurisdiction. I mention, however, in passing that it is curious that there is no provision in the Act or Rules expressly authorising such a course. That is contrary to the provision which prevails in England where the rules of Court make provision for such service (86 of the Bankruptcy Rules 1952)...
The Rules of the Federal Court in their application to matters other than bankruptcy matters make specific provision for service outside the jurisdiction (O 8). Those Rules are expressly made not to apply in bankruptcy (O 1 r 11). It seems to me that consideration should be given to the question of whether Bankruptcy rules should not be made dealing expressly with this matter. "
Notwithstanding that those comments were made in 1984, nothing has been done in respect of that matter. The position is that jurisdiction in respect of the making of a sequestration order is governed by s 43 of the Bankruptcy Act 1966, which requires that, for relevant purposes, it is an essential ingredient, before a Court can make a sequestration order, that at the time when an act of bankruptcy was committed, the debtor was either personally present or ordinarily resident in Australia.
Here I am concerned not with the difficulties associated with service of a petition, which does create difficulties being a Court order, but here with the service of a bankruptcy notice.
Personal service of a bankruptcy notice is required by r 15(a) and s 309(2) of the Act provides:
"Where a notice or other document is required by this Act to be served on or given to a person, the Court may, in a particular case, order that it be given or served in a manner specified by the Court, whether or not any other manner of giving or serving the notice or other document is prescribed. "
It was in reliance on that section that Gibbs J, as he then was, relied in permitting personal service of a petition upon a judgment debtor in the United States of America: Re Mendonca; Ex parte Commissioner of Taxation (1969) 50 FLR 256.
The facts of the present case show that solicitors who formerly acted for Mr Bond have on a number of occasions indicated that Mr Bond was on business in the United States of America from November 1995, and was expected to return variously in June 1996 or July 1996. The instructions to those solicitors were terminated and they have ceased to be solicitors in Supreme Court proceedings involving the applicant and Mr Bond. But the evidence does, so far as it goes, indicate that Mr Bond is ordinarily resident in Australia.
Whether that continues to be the position might be a matter for some speculation. The final and important aspect of the matter is that there is no convention between the United States of America and Australia permitting Australian Court process to be served in the United States of America.
As a consequence, considerations of international comity have to be considered. However, the serving of a bankruptcy notice is not originating process and does not command an appearance by the judgment debtor in Australia. That is a crucial consideration in my view and, in the circumstances, it seems to me that I can, giving full consideration to the considerations of international comity, make orders sought in the present application so as to permit personal service of the bankruptcy notice itself on the judgment debtor.
I make the following orders:
leave be given to Coomera Resort Pty Ltd ACN 050 911 156 to effect service of a bankruptcy notice on the judgment debtor, Paul Levinson Bond, in the United States of America by delivering to him, personally, the bankruptcy notice issued herein, signed and stamped by a Deputy Registrar in Bankruptcy, as well as a sealed copy of this order;
I further order that service in accordance with the order just made be deemed good and sufficient service of the bankruptcy notice;
I reserve the question of costs.
I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 3 June 1996
No appearance for the debtor.
Solicitors for the applicant : Clayton Utz
Date of Hearing : 3 June 1996
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