Re Feiersinger, F. Ex Parte Intersuisse Ltd - [1992] FCA 427

4-23 , W

JUDGMENT No. .. . a . . . . . . . .
C A T C H W O R D S

Bankru~tcy - creditor's petition for sequestration order - rule 15 of Bankruptcy Rules - service of bankruptcy notice by
delivering it to solicitors who had acted for debtor at a much
earlier stage - whether personal service effected.
RE FRITZ FEIERSINGER: EX PARTE INTERSUISSE LIMITED
No. P2000 of 1991

29 MAY 1992
BEAUMONT 3.
SYDNEY

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IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION 1

1 No. P2000 of 1991
1

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OF NEW SOUTH WALES	)
FRITZ FEIERSINGER

EX PARTE: INTERSUISSE LIMITED

CORAM: Beaumont J.
DATE
-- 29 May 1992
U:: Sydney
MINUTES OF ORDER

THE COURT ORDERS:
Petition dismissed, with costs.

Note-

-- Settlement and entry of orders is dealt with in
Bankruptcy Rule 124.
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It is common ground that the debtor did not effect payment to the judgment creditor in accordance with clause
2(1) of the deed. On behalf of the petitioning creditor, it
is now submitted that the service of the bankruptcy notice was validly effected because it was made in accordance with the provisions of clause 4 of the deed. I have difficulty in accepting this argument.
Although it is not necessary that the bankruptcy
notice be left in the actual corporal position of the debtor,
(see Re Ditfort Ex Darte Commissioner of Taxation, (1988) 19 FCR 347, per Gummow J at 360; see also Re Hudson Ex Darte G Crane & Sons Limited, (1990) 25 FCR 318) the requirement that
the document be delivered to the debtor personally must be substantially complied with. In my opinion, this was not done here. Pincus J reached a similar conclusion in Re Hanlin,
(1985) 9 FCR 357.

On behalf of the petitioning creditor, reliance was

placed upon my decision in Ditfort v (1990) 26 FCR 72
but referring to Hanlin's case I there said, at page 76:
"I agree that the question whether a statutory act of bankruptcy has occurred, going as it does to matters of status and potentially at least, to proprietary rights, cannot depend upon a merely private agreement between a debtor and one of his or her creditors as to the date of

service. 'l
It is next submitted on behalf of the petitioning

IN THE FEDERAL COURT OF AUSTRALIA )
1
GENERAL DIVISION

1 NO. P2000 of 1991
1) 1

OF NEW SOUTH WALES 1

RE : FRITZ FEIERSINGER

EX PARTE: INTERSUISSE LIMITED

CORAM: Beaumont J.
DATE : 29 May 1992
REASONS FOR JUDGMENT

On the hearing of a…

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: [1992] FCA 427
Decision Date: 29 May 1992

CaseChat Overview and Summary

Fritz Feiersinger has opposed a creditor's petition for a sequestration order filed by Intersuisse Limited on the basis that the bankruptcy notice was not properly served. The case was heard in the Federal Court of Australia. The central legal issue was whether the service of the bankruptcy notice was valid, given that it was delivered to the debtor's former solicitors rather than to the debtor personally. According to the Bankruptcy Rules, service of a bankruptcy notice must be made by delivering the notice to the debtor personally, unless otherwise ordered. In this case, the notice was delivered to Corrs, Westgarth and Chambers, the debtor's former solicitors, who had acted for the debtor in previous bankruptcy proceedings. The debtor argued that this did not constitute personal service as required by the rules.

The court considered the precedent set in Re Hanlin, where it was held that personal service must be substantially complied with. The court found that delivering the notice to the debtor's former solicitors did not sufficiently comply with the requirement for personal service. The court also rejected the argument that the service should be excused under section 306 of the Bankruptcy Act, as it was not a merely technical objection. Consequently, the court held that the service of the bankruptcy notice was invalid, and dismissed the petition with costs.

Orders