Re: Damaschke; Ex Parte: Official Trustee in Bankruptcy v Damaschke

JUDGMENT No. 4%?dI...,!d~6

IN THE FEDERAL COURT OF AUSTRALIA

)

GENERAL DIVISION

)	No. NB 2649 of 1994

BANKRUPTCY DISTRICT

)

OF THE STATE OF NEW SOUTH WALES

Re: ERHARD ERNST DAMASCHKE

Bankrupt

Ex parte: THE OFFICIAL TRUSTEE IN

BANKRUPTCY

Applicant

And: CHARLOTTE DAMASCHKE

Respondent

REASONS FOR JUDrnNT

EINFELD J

SYDNEY

19 NOVEMBER 1996

This is an application by the Official Trustee in Bankruptcy for orders pursuant to section 66G of the Conveyancing Act of (NSW). The Court is asked to exercise jurisdiction pursuant to the Commonwealth Cross-Vesting Act on the grounds that the bankruptcy of which the applicant is the trustee was made in

this Court and that if the matter were heard, as would be expected, in the Supreme Court, the bankruptcy would have to be separately proved. I am not at all sure that this argument is valid but I am prepared to find in the circumstances that it is more convenient that the matter be heard in the Federal Court.

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The respondent, who is the wife of the bankrupt, has not appeared today. Service was effected by posting the relevant documents to her and by enclosing the documents in a waterproof

envelope in an obvious position and with appropriate adhesive and plastic covering and affixing the envelope to a post holding up the gate to the premises at which it is believed the

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respondent and the bankrupt live. This method,sf service 'was

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approved by Registrar Mathieson on 9 0ctobet 6996t,;;CIhen:;.,fh$

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Registrar ordered that service be effected in these ways:

post at the entrance to the property and am satisfied that the orders of the Registrar for substituted service have been complied with. I therefore make orders in accordance with paragraphs 1-9 of the application and direct that a copy of these orders be presented to the Registrar for certification and thereafter be served upon the respondent in the same ways as previously ordered by the Registrar. I direct that the Official Trustee in Bankruptcy be empowered to apply for and be given a replacement Certificate of Title in respect of the property by the Land Titles Office. I hand back to the representative of the Trustee for safe keeping the photographs of the service to which I have referred.

CaseChat Overview and Summary

The case of Re: Damaschke; Ex Parte: Official Trustee in Bankruptcy v Damaschke concerns an application by the Official Trustee in Bankruptcy to exercise jurisdiction under section 66G of the Conveyancing Act of New South Wales. The Federal Court of Australia, in its General Division, was asked to order the conveyance of property held in the name of Charlotte Damaschke, the wife of the bankrupt, Erhard Ernst Damaschke. The Official Trustee in Bankruptcy argued that the bankruptcy proceedings were made in the Federal Court, and that if the matter were heard in the Supreme Court, the bankruptcy would need to be separately proved.

The legal issues the court had to decide included whether the Federal Court had jurisdiction to order the conveyance of the property and whether the method of service of the application on Charlotte Damaschke was valid. The court considered the argument that the Federal Court's jurisdiction was more convenient in this case, and whether the substituted service of the application on Charlotte Damaschke was sufficient. The court found that the Registrar's orders for substituted service had been complied with, and that the method of service was appropriate.

The court reasoned that it was more convenient for the matter to be heard in the Federal Court and granted the application. The court directed that a replacement Certificate of Title be issued in favour of the Official Trustee in Bankruptcy and ordered that the photographs of the service be handed back to the Trustee's representative for safekeeping. The court also made orders in accordance with the application, directing that a copy of these orders be presented to the Registrar for certification and served upon Charlotte Damaschke in the same ways as previously ordered by the Registrar.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established